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Beyond regulation: special improvement districts, design review, and place-making in New Jersey

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Beyond regulation: special improvement districts, design review, and place-making in New Jersey

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BEYOND REGULATION:
SPECIAL IMPROVEMENT DISTRICTS, DESIGN REVIEW,
AND PLACE-MAKING IN NEW JERSEY

by

Ramzi Raif Farhat

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLICY, PLANNING, AND DEVELOPMENT)

August 2010

Copyright 2010 Ramzi Raif Farhat

ii

Dedication

To Nadia and Raif for their encouragement, and to
Hala for her unfailing support.

iii

Acknowledgements

To research and write this dissertation, I embarked on a journey from Southern
California to the New York City Area. I would first like to thank my companion on this
journey, Hala Auji, my wife. To my parents, Nadia Rifaat and Raif Farhat, I owe a debt
of gratitude for their encouragement. Of course I would like to take this opportunity to
thank the members of my dissertation committee Drs. Tridib Banerjee, Yan Tang, and
Douglas Noble. I especially would like to thank Dr. Banerjee for his patience in working
with me as I researched this dissertation away from USC. I would also like to
acknowledge Michael Dear and Clara Irazabal, former members of my committee, for
their valuable insights early on. My colleagues at USC were very helpful in helping me
refine my research questions and survey instruments.
None of this would have been possible without the help of many people involved
with special improvement districts in New Jersey. I would like to single out Seth
Grossman for his insightful analyses of the issues. Amy Koehler John James of the
Maplewood Village Alliance and Mary Divock of the Bayonne Town Center were
instrumental in giving access to material and resources. Last but not least, Mr. Don
Smartt of the Community Advocates helped me paint a general picture of special
improvement districts in the state and refine my hypotheses.

iv

Table of Contents
Dedication ii

Acknowledgements iii

List of Tables vii

List of Figures xi

Abstract x

Chapter 1. Introduction 1
1.1 Issues Motivating the Investigation 1
1.2 Research Questions and Scholarly Context of the Study 3
1.2.1 Research Questions 3
1.2.2 Scholarly Context of the Study 5
1.3 Argument and Findings 11
1.3.1 Theoretical Framework 11
1.3.2 Key Findings 14
1.4 Structure of the Dissertation 21

Chapter 2. Design Review, Politics, Legitimacy, and Organizational Choice 23
2.1 Design Review 23
2.1.1 The Rising Popularity of Design Review 24
2.1.2 Descriptive and Evaluative Perspectives 29
2.1.3 Normative and Explanatory Perspectives 37
2.1.4 The Politics of Design Review 42
2.2 The Political Imperatives of Design Review 47
2.2.1 The Politics of Regulation 47
2.2.2 The Politics of Delegation 50
2.2.3 The Politics of Agency 53
2.2.4 Politics and Discretion 54
2.3 Legitimacy in Design Review 58
2.3.1 The Idea of Political Legitimacy 58
2.3.2 Application to Urban Governance 61
2.3.3 Pragmatic Legitimacy 64
2.3.4 Regulative Legitimacy 65
2.3.5 Normative Legitimacy 77

Chapter 3. Conceptual Framework and Research Design 84
3.1 Conceptual Framework 84

v

3.1.1 Questions and Hypotheses 84
3.1.2 The General, Elaborated, and Detailed Frameworks 87
3.2 Quasi-experimental Research Design 93
3.2.1 Case Study Approach 93
3.2.2 Notes on Threats to Validity 96
3.3 Methodology 99
3.4 Survey Design 99
3.4.1 Instrument Refinement and Pilot Survey 99
3.4.2 Final Survey 101
3.4.3 Data Analysis 107

Chapter 4. Special Improvement Districts and the Garden State 109
4.1 Special Improvement Districts and Design Review 109
4.1.1 Special Improvement Districts 109
4.1.2 Assessments and Critiques 114
4.2 The New Jersey SID Enabling Legislation 118
4.2.1 Political Context of the SID Enabling Legislation 118
4.2.2 The Politics of the SID Enabling Legislation 124
4.2.3 The Imperatives of SID Incorporation 130
4.3 New Jersey SIDs’ Involvement in Design Review 133

Chapter 5. Political Imperatives and Discretion in Design Review 138
5.1 Design Review in Bayonne 139
5.1.1 Snapshot of Bayonne 139
5.1.2 The Politics of Discretion in Bayonne 144
5.1.3 The Politics of the BTC Legislative Dimension 151
5.1.4 The Politics of the BTC Design Guidelines 154
5.1.5 The Politics of the BTC Design Review Process 161
5.2 The Politics of Design Review in Maplewood 165
5.2.1 Snapshot of Maplewood 165
5.2.2 The Politics of Discretion in Maplewood 168
5.2.3 The Politics of the Legislative Dimension in Maplewood 174
5.2.4 The Politics of the Maplewood Design Guidelines 178
5.2.5 The Politics of the Maplewood Design Review Process 183

Chapter 6. The SIDs’ Design Review Processes in Practice 188
6.1 The Process in Bayonne and Maplewood 190
6.1.1 SID-administered Design Review in Bayonne 190
6.1.2 SID-administered Design Review in Maplewood 202
6.2 Critical assessment of the BTC and MVA Processes 212
6.2.1 The BTC Process and the Substantive Dimension 212
6.2.2 The BTC Process and the Procedural Dimension 216
6.2.3 The MVA Process and the Substantive Dimension 221

vi

6.2.4 The MVA Process and the Procedural Dimension 224
6.3 Control and Comparison Groups 228
6.3.1 Municipalities with Design Review Boards 228
6.3.2 Other SIDs with Design Review Authority 235
6.3.3 The Springfield Avenue Partnership 240

Chapter 7. Pragmatic, Regulative, and Normative Legitimacy 244
7.1 Pragmatic Legitimacy of SID-administered Design Review 245
7.1.1 Descriptive Statistics 246
7.1.2 The Substantive Dimension 251
7.1.3 The Legislative Dimension 256
7.1.4 The Procedural Dimension 259
7.1.5 Role of the Regulatory Agency 262
7.1.6 The Legitimacy of SID-administered Design Review 264
7.1.7 Substantive, Legislative, and Procedural 270
7.1.8 Role of the Regulatory Agency and Conclusions. 275
7.2 Regulative and Normative Legitimacy of SID-administered 278
7.2.1 Regulative Legitimacy 278
7.2.2 Normative Legitimacy 284

Chapter 8. Conclusions 297
8.1 The Suburbs and Cities of the Garden State 299
8.1.1 The Politics of Polarization 299
8.1.2 The Instruments of Polarization 302
8.1.3 Newark and its Environs 312
8.1.4 Maplewood and Bayonne Today 316
8.2 Conclusion 321
8.2.1 Design Review, Politics, and Legitimacy 321
8.2.2 The Strategic Calculus of Regulation and Delegation 324
8.2.3 Looking Forward 334

References 340

Appendices
Appendix 1. Special Improvement Districts in New Jersey 368
Appendix 2. Letter of Exemption from IRB Review 374
Appendix 3. Booklet for Survey Respondents 375
Appendix 4. Information Sheet for Interviewees 386

vii

List of Tables

Table 3.1 Reliability of Dimensions in Pilot Study 102

Table 7.1 Response Rate by Community 246

Table 7.2 Demographic Summary 248

Table 7.3 Residential Choices and Habits 250

Table 7.4 Summary of Mean Ratings, % Agreeing, and Rank for Statements 251
on Substantive Dimension

Table 7.5 Paired Samples T-test for Substantive Dimension 252

Table 7.6 Most Important Substantive Dimension 253

Table 7.7 Place Character 254

Table 7.8 Summary of Mean Ratings, % Agreeing, and Rank for Statements 255
on Scope of Design Review

Table 7.9 Variation of Scope of Design Review 256

Table 7.10 Mean Ratings, % Agreeing, and Rank for Statements on 257
Legislative Dimension

Table 7.11 Paired Samples T-test for Input Dimension 258

Table 7.12 Most Important Input Dimension 259

Table 7.13 Mean Ratings, % Agreeing, and Rank for Statements on 260
Procedural Dimension

Table 7.14 Paired Samples t-test for Procedural Dimension 261

Table 7.15 Most Important Procedural Dimension 261

Table 7.16 Summary of Mean Ratings, % Agreeing, and Rank for Statements 262
on Role of Regulatory Agency

Table 7.17 Paired Samples T-test for Role of Regulatory Agency 263

viii

Table 7.18 Most Important Role for Regulatory Agency 264

Table 7.19 Approval of Involvement in Tasks of Design Review 266

Table 7.20 Legitimacy Index 266

Table 7.21 Paired Samples T-test for Indices of Legitimacy 267

Table 7.22 Perception of Legitimacy and Education 268

Table 7.23 Perception of Legitimacy and Ethnicity 269

Table 7.24 Perception of Legitimacy and Income 269

Table 7.25 Resident Characteristics and SID Authority 270
to Approve Projects

Table 7.26 Public Interaction by SID Authority to Approve Projects 271

Table 7.27 Business Promotion by SID Authority to Approve Projects 272

Table 7.28 Public Interaction by SID Authority to Approve Projects 273

Table 7.29 Place Character by SID Authority to Approve Projects 273

Table 7.30 Character of Place by SID Authority to Approve Projects 274

Table 7.31 Single Most Important Role of Regulatory Agency and SID 276
Authority to Approve Projects

Table 7.32 Agree/ disagree Role of Regulatory Agency and SID Authority 277
to Approve Projects

ix

List of Figures

Figure 2.1 SID-administered Design Review Process 31

Figure 3.1 General Framework of Design Review 87

Figure 3.2 Elaborated Framework of Design Review 89

Figure 3.3 Detailed Framework of Design Review 90

Figure 5.1 Broadway Avenue, Bayonne (1) 141
Figure 5.2 Broadway Avenue, Bayonne (2) 143
Figure 5.3 Project with BTC Involvement (1) 155
Figure 5.4 Project with BTC Involvement (2) 157
Figure 5.5 Project with BTC Involvement (3) 158
Figure 5.6 Maplewood Avenue, Maplewood (1) 167
Figure 5.7 Maplewood Avenue, Maplewood (2) 168
Figure 5.8 Project with MVA Involvement (1) 179
Figure 5.9 Project with MVA Involvement (2) 180
Figure 5.10 Project with MVA Involvement (3) 181

x

Abstract

In New Jersey, the state legislature has devised a process through which
municipalities can delegate design review authority to Special Improvement Districts
(SIDs). Conceiving of the program as a form of ‘self-help’ in urban revitalization, the
state offered local government little guidance and wide discretion as to how SIDs may
structure the review process. Other than the issue of why some municipalities lent their
authorities to SIDs while others did not, this program raises the following important
questions: How can we understand how the different review processes took the shape that
they did? What are the consequences of this delegation of authority in terms of the
public interest?
‘Beyond regulation’ probes these questions by showing how the study of design
review can be advanced when treated within the general perspective of the regulatory
process and the language of organization theory. More specifically, I argue that a politics
of regulation, delegation, and agency shapes the nature of discretion in design review. To
the extent they are considered, pragmatic (popular), regulative (legal), and normative
legitimacy constraints create countervailing pressures that channel these imperatives in
the public interest.
From a consideration of two SID-administered processes in the City of Bayonne
and the Township of Maplewood, I make the observation that compromises between
political imperatives may necessitate the institution of a discretionary process irrespective
of the legal capacity of a locality to exercise strict oversight. From the two case studies, I
xi

also find evidence that the SIDs used this discretion to be proactively involved in the
guidelines promulgation, project design, and review processes beyond the typical roles of
a review agency.
This proactive involvement is advantageous in that it can increase efficiency and
infuse the process with expertise. This involvement, however, also raises important
concerns of the accountability of the process to all relevant stakeholders, the right to
individual and cultural self-expression, and the adherence to standards of due process in
the administration of review. These concerns are further amplified by the limited
accountability of SIDs to community residents and the suspended application of
constitutional safeguards predicated on ‘special district’ status of SIDs.
As evidenced from other examples of SID-administered processes in the state,
SIDs can and do promulgate prescriptive, even stylistic guidelines. An SID might
however use discretion to be proactively involved in interpreting fairly generic guidelines
in a prescriptive manner, as evidence from the two cases suggests. In the context of New
Jersey’s balkanized and racially and socially polarized geography, delegation might be an
approach of strategic value in the defense of community, especially when securing
consensus on prescriptive guidelines at the municipal level is not politically feasible.

1

Chapter 1. Introduction

1.1 Issues Motivating the Investigation
Following early adoption in Louisiana and New York, enabling legislation
authorizing the formation of Special Improvement Districts (henceforth SID) had by the
early 1980s been introduced in many other states
1
. By that time it had seemed only timely
for New Jersey to finally enact its own version of a fairly typical legislation that enables
districts to exact assessments and apply them to the provision of street maintenance,
business marketing, public amenities, and like services, most often through dedicated
entities commonly known as District Management Corporations. In May of 1984, the
New Jersey Legislature finally passed into law the state’s own improvement district
statute
2
.
In an interesting development, the New Jersey legislature introduced language
into the statute that effectively allowed municipalities to cede to any district formed
pursuant to the act powers to review any proposed development or renovation on private
property within the district for conformity to design guidelines promulgated by the SID.
The delegation of these powers of design review, typically vested in an agency of local
government or an advisory board that answers to such an agency, was a milestone
development in the then nascent but expanding national experiment with SIDs.

1
The Special Improvement District (SID) is the legal designation in New Jersey for what is more
commonly known elsewhere in U.S. as the Business Improvement District (BID).

2
N.J. Stat. Ann. § 40:56-65 et seq.

2

SIDs are a form of public-private partnership in urban governance. This act of the
delegation of design review to SIDs created the conditions for an experiment that sheds
light on the opportunities and challenges in the quasi-private management of an important
urban design and land use regulatory function. Introduced and implemented without
much fanfare, these provisions enabling the delegation of design review made for a
qualitative leap as to how creative localities can be in structuring public-private decision
making in the urban design implementation process. From the perspective of the
legislature at the time, the delegation provisions were actually conceived of as
empowering of the public sector in structuring flexible processes that were not perceived
to compromise the constitutional protections that are inherent in a public process.
This faith was predicated on the belief that local governments, empowered by the
enabling legislation to institute as stringent controls on the partnership as they see fit,
possessed enough authority to insure that it operated in the public interest. This
perspective was communicated to me as recently as last year by Mr. Seth Grossman, a
leading figure in the statewide SID movement, director of the Newark IronBound SID,
and lecturer on improvement districts at Rutgers- The State University of New Jersey.
Though it may be true that localities were, in theory, able to design the review
process according to their assessment of the risks involved in delegation, a preliminary
assessment of the processes instituted by a few localities indicated that such stringent
controls are in fact not the norm. My initial interpretation of these findings was that
practical impediments that necessitated delegation in the first place might have made
such controls onerous. From these initial observations, it became clear to me that a

3

theoretical framework which can help explain the constraints on discretion in structuring
the design review a process was wanting.
In this respect, this study has three main goals and prospective contributions. I
first propose a theoretical framework for the analysis of design review processes which is
predicated on an analysis of political imperatives and legitimacy constraints on
organizational design. This is a framework that I hope can prove fruitful in better
accounting for the institutional characteristics of public, private, and hybrid review
processes, although in this study it is applied to explaining some of the variation in SID-
administered processes. Secondly, I hope to have a specific discussion of two case study
SIDs in the townships of Bayonne and Maplewood elucidate the potential benefits and
pitfalls of delegated design review given the practical impediments to extensive
oversight. Thirdly, I hope to tie the discussion of design review, delegation, and place-
making to one on New Jersey’s urban politics to better understand the state’s and
localities’ interest in the program given the benefits and pitfalls presented.

1.2 Research Questions and Scholarly Context of the Study
1.2.1 Research Questions
The institution of this public-private form of design review raises many questions.
Why did the state legislature signal its dissatisfaction with the traditional approaches to
design review and feel the need to afford SIDs such expanded authority? Why did some
municipalities delegate design review to SIDs while others did not? What different
motives did SIDs have in assuming these powers? What mechanisms insure that SID-

4

administered design review incorporates constitutional protections against the
opportunistic use of government power? Has the public interest been compromised by
such a delegation of authority?
In ascending order of generalization, these are the questions that frame my
interests in this study. Probing these questions is important as that will aid researchers in
academia, policy analysts, and commentators become better informed about the
implications of this emergent regime of urban design regulation and implementation. In a
more general sense, I hope that the discussion in this study will inform the debate on the
expanding role of private entities in the management of urban affairs and the implications
of thereof for on the expectations of government in a democratic society.
Today more than ever, critical studies that investigate the implications of
emergent place-making institutions, practices, and strategies for civic life are at the core
of the field of urban design (see e.g. Loukaitou-Sideris and Banerjee 1998).
Consequently, a continuous critical examination of emergent governance paradigms and
regulatory practices for their implications for these civic goals is needed. It is in this
sense that probing this topic is an important scholarly undertaking.
Today private sector involvement in urban regeneration has gained widespread
legitimacy as an antidote to a bureaucracy that has been perceived to be ineffective and
slow to adapt to contemporary challenges of urbanization and economic change. It is in
this respect that the institutional evolution of public-private forms of governance in urban
regeneration should receive adequate critical scrutiny. The devolution of design review is
yet another example of the devolution of public authority in other applications of urban

5

design, a practice has generated fears of a perceived erosion of the public sphere, which
in turn has galvanized a spirited debate on place, democracy, and community.
This debate had matured as a scholarly response to the infusion of the discourse
on urban design practice with the idea of the neo-liberal revival of the early 1980s.
Although the popularity of partnerships in urban regeneration (see e.g. Carley et al 2000)
and the proliferation of Common Interest Developments (CIDs) in the suburban
landscape (see e.g. Blakely and Snyder 1997) is often marshaled as evidence of citizens
‘voting with their feet’ for choice in community (see e.g. Gordon, Beito, and Tabarrok
2005), questions about transparency, access, and exclusion (see e.g. Soja 2000) have
become foundational themes of this debate. The devolution of design review authority to
SIDs bears theoretical resemblance to the assumption of such authority by redevelopment
agencies and Homeowner Associations (HAs) in CIDs and thus many of these questions,
often posed in the context of CIDs, apply to the case at hand.

1.2.2 Scholarly Context of the Study
The first and most general context of this study is that of public-private
partnerships (PPPs) in urban regeneration. In the post World War Two era, a typical
regeneration scenario in the context of urban redevelopment was one where partnerships
between real estate interests, bankers, commercial interests, etc. would seek the support
of civic leaders to gain both regulatory authority and/ or public financing to effectuate
regeneration plans in downtown areas (Levine 1989).

6

In the last thirty years, the capacity of the public sector to commit its own
resources to redevelopment has been severely curtailed as cities across the nation had to
respond to fiscal crises exacerbated by the restructuring of the American economy.
During that time, stresses endured by the manufacturing industry in particular challenged
the economic viability of communities across the nation. International competition for
capital and the decline in transfer payments from the federal and state governments only
made the need for creative solutions to urban regeneration at the local government level
even more pressing.
As these crises, both economic and social, became a defining fact of life for cities
in the second half of the 20
th
century, many communities in urban America suffered from
disinvestment, demographic change, chronic crime, and dilapidation. When the urban
renewal schemes of the 50’s and 60’s failed to reduce urban poverty and it became
apparent that these regeneration plans may have simply transferred the underserved and
disenfranchised populations out of downtown areas, the ‘top down’ approach to
redevelopment came under serious criticism (Sagalyn 2007). As a result, partnerships that
limited local government fiscal liability and moral culpability became more attractive.
In the wake of the economic upheavals of the 1970s and the curtailment of
industry’s leading role as a cornerstone of the economy in the wake of the globalization
of industrial production, land development gained an even more prominent role as a
strategy for local economic development. To borrow from the lexicon of radical
geographers, urban development gained in prominence as a ‘spatial fix’ to economic
crises (Harvey 1999). In this context, partnerships that represented the renewed interests

7

of the private sector in urban development gained even more popularity as investment
and development vehicles.
Partnerships selectively focused on high visibility, core urban areas to effectuate
their visions for downtowns. New paradigms such as urban entertainment zones
(Hannigan 1998), tourism ‘meccas’ (Sorkin 1992), and cultural districts (Zukin 1995)
were developed and standardized. As plans for the new downtowns were put into
development, the private sector’s imprint in ideation, financing, and project delivery was
clear (Frieden and Sagalyn 1989). This was manifest in a wide spectrum of undertakings
ranging from the coordination of development plans (Sandercock and Dovey 2002) or the
provision of public space ‘downtown’ by private entities (Loukaitou-Sideris and Banerjee
1998). SIDs are typical examples of this partnership structure. In the case of SIDs,
government is typically more involved in regulation and oversight and delegates
management, financing and implementation decisions to the private sector partner.
In a more specific, second sense this study is also about the delegation of a
regulatory function in the realm of land use to an entity with significant influence of
private parties. Such delegations do have their precedents. In the American experience,
private neighborhoods proliferated in the last thirty years with the increasing saliency of
values such as ‘home rule’ and ‘public choice’ in the choice of community. The private
management of land uses in these usually suburban CIDs managed by homeowners
associations (see e.g. Punter 1999) has been a longstanding interest of scholars.
SID-administered design review differs from CID regulation of land uses in two
respects. Unlike CIDs, SIDs are typically formed in city and town centers rather than

8

residential suburbs. SIDs are also typically more constrained in their capacity to legislate
policy and administer review than CIDs, and as such feature some government oversight.
Parallels however can be drawn, and an investigation of the comparative imperatives and
consequences of SID and CID involvement in land use management, although beyond the
scope of this study, is a worthy and warranted exercise.
SIDs have been important players in the downtown regeneration scene for more
than three decades now. By assuming design review authority, SIDs borrow from both
PPPs and CIDs in their organizational structure and repertoire of authority and ultimately
extends the scope of private sector involvement in the control and implementation of
urban design. SID-administered design review marks a new frontier in the
institutionalization of private sector influence in place-making downtown.
This delegation of authority thus implements in the urban core what has hitherto
been largely a suburban experiment as in the case of CIDs. Although CIDs rely on
covenants, conditions and restrictions built into property deeds to govern land-uses (Ben
Joseph 2004), SIDs have managed to wrestle from local government the authority to craft
and enforce zoning-like regulations imposed on the owners of private property. The
global migration of SIDs, now common in New Zealand, South Africa, and more recently
the United Kingdom promises to accelerate the adoption of this and other like
innovations, and makes this study a salient undertaking.
Almost a decade ago, Davies (1998) proposed that one important rationale for
improvement district formation is the application of the tenets of the New Urbanism to
downtown management. Davies’s account of a New Urbanist agenda for improvement

9

districts though is a somewhat value-free account of a renewed interest in compact,
pedestrian oriented development. But if the controversy around the cultural politics of the
New-Urbanist movement is any indication, it is clear that no place-making agenda can be
dissociated from cultural and political motives.
The substantial influence of corporate and suburban interests on the urban design
agenda alluded to above through such developments as the regeneration of urban
downtowns as themed environments (Hannigan 1998) and the provision of public
amenities in suburban CIDs (Blakely and Snyder 1997) raises important questions about
the state of civic values in urban design practice. I personally agree with the assessment
that the private neighborhood movement represented an unfortunate disengagement with
the city, and ultimately a lost opportunity where the logic of retreat and segregation
triumphed over that of dialogue and conciliation.
In CIDs, the heightened attention to issues such as environmental design and
preservation (Ben Joseph 2004), or character concerns such as in the New Urbanism-
inspired traditionalism (Ellin 1999) are at some level a positive development, but also
have in the least postponed and at the most intentionally retarded a sincere effort to
diagnose and treat the root causes of urban crises. It is ironic that in that sense private
neighborhoods often contributed to a sense of ‘placelessness’ against the better intentions
of their boosters (Stark 1998).
This study thus finds validation in the continued scholarly interest in issues of
innovation in governance, partnerships, and the privatization of land use regulation
alluded to above. My own personal interest derives from the belief that a civic-minded

10

urban design implementation process is one where a community sets, negotiates, and
evolves its vision for place-making. My specific interest are in the role design review
has in influencing the character of a community through the regulation of the built
environment. Researchers in environmental psychology have for long stressed the
important links between community character and the sense of community and belonging
(Relf 1976). It is in this sense that design review is not merely a formal exercise in
aesthetics but a process that validates the emotional, cultural, and ideological bonds that
are formative of a community’s self identification.
It is important here to press the point that design review henceforth has the
potential of being a process that creates bridges of understanding and solidarity in a
community, and ultimately contribute to a more inclusive and progressive politics. The
important work that lies ahead should focus on raising critical awareness that this can
only be achieved through the continuous involvement of all relevant ‘publics’ in a
process where issues are identified and reflected upon in inclusive and accountable
institutions. The test of SID-administered design review is whether as an innovation in
land use regulation it advances or retards achieving these goals.
This study of design review is embedded in the larger context of contemporary
discourse in urban design. Here the study unfolds against a scholarly background where
the unshackling of urban design from the dictates of elitist paternalism and the
recognition of cultural diversity are perennial concerns (Dear and Scott 1981). Hayden’s
(1995) critique of postwar planning and urban design, and her call for an approach to
urban design which reclaims recognition for minority groups form a system which too

11

often is bent on memorializing the universal histories of dominant groups is also a
normative test to which I subject the findings from this study. Finally, Sandercock’s
(1998) call for a creative approach to planning as a project for the social management of
coexistence in an increasingly multicultural society, and where the neighborhood is
treated as the laboratory for a progressive effort in the cause of social, cultural, and
environmental justice.

1.3 Argument and Findings
1.3.1 Theoretical Framework
This study is thus fundamentally in the most general sense a critical analysis of an
innovative process of design review involving the delegation of thereof to quasi-private
organizations. As mentioned, the first goal of this study is to devise a framework to
account for and assess the variations amongst review processes devised pursuant to the
enabling legislation.
The literature on design review does address many of the concerns raised by this
study, but the analysis is often case specific and ad-hoc. One strand of the literature
places heavier emphasis on the instrumental goals of design review. Specifically, many
prominent commentators on design review have adopted a framework where the design
review process is predominantly explained in terms of common sense solutions to stated
objective urban design goals (e.g. Shirvani 1981; Punter 1999). Similarly in reflecting on
delegation within the wider literature on organizations, some scholars have advanced the
argument that discriminating between the suitability of a public or private bureaucracy

12

for any domain of regulation can be fundamentally reduced to a calculus of costs (e.g.
Williamson 1999).
On the other end of the spectrum, another strand of the literature proceeds from
strong strategic assumptions. Design review has thus also been explained away as a tool
in the service of hegemonic powers bent of enforcing cultural standardization (e.g. Pouler
1994; Russell 1994). The approach I take in this study is that the prevalent instrumental
and strategic views under-represent a more complex dynamic driven by political
imperatives and constrained by the need for social legitimation
3
.
In my reservations to such a polarized approach I was influenced by the
development of the concept of ‘embededness’ in economic sociology. For its proponents,
the appeal of the idea of embededness was that it struck a middle ground between under-
socialized approaches to economic behavior predicated on rational choice, and over-
socialized approaches predicated on the subscription to social norms (Grannoveter 1985;
Gezzi and Mingione 2007). Applying this insight to the realm of decision-making in the
context of urban governance, my aim was to propose a framework that bridged what I
perceived to be under-institutionalized and over-institutionalized approaches to
explication. In this sense, I saw productive potential in a treatment of design review from
within the perspective of organizational design, a perspective that bridged the gap
between agent-centered approaches and those predicated on a political economy
perspective.

3
I am here guided by insights developed by scholars working on problems in structural choice, principal-
agent theory, the theory of the bureaucracy, and the sociology of organizations.

13

The framework also aims to assess the resultant organizational arrangements in
terms of the degree they are legitimated by social and political considerations. It is
important here to differentiate between explication and legitimation. Though perspectives
predicated on political-economic considerations propose that these forces act upon agents
and therefore their decisions are explained by how they are shaped by these forces, their
treatment as legitimating factors assumes that agents are consciously aware of the multi-
layered constraints on their actions and act accordingly. It is in this sense, as will become
more clear in a later chapter, that less weight was placed on ‘cognitive’ dimension of
legitimacy.
In this sense, my imperatives-legitimacy framework institutionalizes the analysis
of design review to the extent that it incorporates a ‘middle of the road’ approach of
organization-level determinants of and constraints on institutional design, but falls short
of a completely institutionalized approach. This deliberate move is not made to discount
the explicative value of such a sociological approach, but is for the purposes of this study
what I feel is a necessary simplification meant to illustrate how the treatment of
organizational considerations can help explain some the features of the review processes
under consideration. In the final chapter, I consider latent socio-political motives that I
believe are expressed in institutional preferences.
This framework is predicated on the idea that discretion in design review, or the
latitude an agency has in self-administration, has organizational dimensions that need to
be understood and assessed. I propose that it is useful to think of three dimensions of
discretion: legislative, or the autonomy the agency has in goal setting; substantive, or the

14

specificity of its mandate; and procedural, or the degree and nature of oversight in the
adjudication of cases. The framework I propose acknowledges that various imperatives
for regulation, delegation and considerations of agency relations shape the nature of
discretion in design review in these three dimensions. Furthermore, I propose that the
legitimacy of the process is proportional to the degree it is constrained by various
pragmatic (popular), regulative (legal), and normative considerations.

1.3.2 Key Findings
Northern New Jersey is home to Greater Newark, the state’s largest urban area.
Close to Newark is the city of Elizabeth, home to refining and other heavy industry,
Kearny, a large logistics hub, and Jersey City, home to the largest port on the East Coast.
The decline in the fortunes of the larger metropolitan area encompassing the cities of
Newark and Elizabeth is emblematic of the decline that has decimated the state’s other
urban centers such as Trenton and Camden.
Also interspersed in the greater region are higher income communities home to a
commuter population employed in New York City. The area also has small middle
income communities interspersed between these affluent suburbs and struggling cities.
The fact that SID-administered design review found its’ most fervent supporters in this
area characterized by extremes of wealth and poverty, some well established and others
undergoing demographic change, raises interesting questions about the politics of design
regulation.

15

This study is mainly centered on two case studies in Northern New Jersey, the
Bayonne Town Center (BTC) in Bayonne and the Maplewood Village Alliance (MVA)
in Maplewood. The two cases were chosen because the respective SIDs represent
qualitatively different contexts with varying priorities. Bayonne is a middle class
community while Maplewood is an affluent suburb on the fringes of the metropolitan
area. In both cases, the guidelines did not call for any particularly prescriptive character,
which makes the study of design review administration more revealing of an SID’s goals.
An application of the framework I develop reveals important features of the
intricate calculus that shaped the nature of discretion in each community’s process. In
Bayonne, I claim that political compromises resulted in the institution of moderately
discretionary guidelines. They seemingly provided enough guidance and control that lax
procedural oversight which enabled flexibility could suffice. In Maplewood, the need for
discretion in the guidelines due to the indeterminate character of the physical stock in the
community was compensated for by more stringent procedural controls. In both cases,
compromises between the demands of competing imperatives resulted in review
processes with less curbs on discretion that what could have been otherwise instituted by
law.
In my analysis of the pragmatic, regulative, and normative levels of legitimacy
constraints, I propose the criteria of accountability in the legislative process, equal
representation in the substantive agenda, and due process as it pertains to the procedural
dimension be considered in assessing the legitimacy of the review processes. In my
assessment, legitimation considerations did not play as important a role in structuring the

16

respective review processes. A survey of both localities’ residents revealed to me that
many of the SIDs’ priorities, such as the focus on issues of building design and the
prioritization of the role of business interests, were not shared by the general public.
The regulative (legal) legitimacy of SID-administered design review on the other
hand rests on its satisfaction of a coterie of principals and tests. Some, like the special
district exemption from ‘one person one vote’ and the ‘non-delegation of legislative
powers’ doctrines (as they pertain to the criterion of accountability) apply to SID-
administered design review by virtue of it being a governance entity in general. Others
such as ‘Brennan’s rule’ of comprehensive application of regulation (as it pertains to the
criterion of equal representation) and the ‘vagueness’ test of aesthetic prescriptions (as it
pertains to due process) apply when an entity is specifically involved in aesthetics
regulation, as is this case. Both communities’ processes exhibit serious shortcomings if
the legal test is applied.
Just to consider one main issue raised in this study, the legitimation of the SIDs’
insulation from broad democratic accountability has its basis in the legal concept of the
‘special purpose’ institution. A special district is one the benefits of whose services are
assumed to accrue exclusively to an assessment paying actors who are disproportionately
burdened by the activities of the organization. I however concur with Briffault (1999) that
the extension of the special purpose district logic to SIDs is justifiably not a
straightforward application, especially as SIDs assume design review authority.
The narrow view of property rights that legitimates SID regulation of land uses on
downtown property does not address the publics’ rights to public spaces. It also definitely

17

does not address the less tangible rights to community character, an issue compounded
with the delegation of the design review process to SIDs. From a normative perspective, I
argue that the insulation of SIDs from substantive accountability becomes increasingly
untenable given the reality that district and community residents are as likely to suffer the
consequences of SID actions in the realm of urban design as the business and property
owners directly encumbered by the regulations.
As I concluded from the application of the theoretical framework, the competing
demands of various political imperatives made for practical constraints on the institution
of stringent accountability mechanisms of the type the state legislature, by refraining
from detailed requirements, determined communities would be able to institute if they
deemed them necessary. Given this margin of discretion, preliminary evidence from both
processes points in the direction of issues that can become problematic as SID-
administered design review gains in popularity.
In a general assessment, SID-administered design review delivered on the
promises of delegation. The projects designed under the purview of SIDs evinced
thoughtfulness and careful attention to detail. When compared to review undertaken by
regular design review boards, there is a noticeable investment in the design process and
final design of each proposal. This proactive involvement in guidelines promulgation,
design, and process administration however might have come at the expense of important
normative goals described above. My observation is that in both cases, many of the
assumptions about accountability and oversight made by the delegating localities did not
account for the practical realities of design review.

18

In both cases for example, the SIDs spearheaded the guidelines development
process. Another complication is that nature of the regulation function, i.e. architectural
design, meant that an inevitable act of interpretation is an integral component of any
‘application’ of the guidelines. Although the guidelines in Bayonne were systematic, the
city might have had unrealistic assumptions about the constraints on the interpretation of
policy documents by the SID. The same concerned can be raised in Maplewood’s
process, where even the institution of stricter oversight could not account for informal
negotiations between the SID and the applicants prior to a determination on the
proposals.
One can make the case that in both communities, the SIDs most probably geared
applicants towards a more uniform interpretation of the guidelines than what the fairly
generic guidelines, intended to promote contextual design, called for. In my reading, the
interpretation of the guidelines was channeled mainly through a traditional design agenda
in Bayonne and a more minimalist modern one in Maplewood. Although in both cases
one can commend the SIDs for their consistent approach, questions should be raised
about whether this consistency comes at the expense of innovation, expression, and
ultimately creative dissent.
Also from my observations, the more important insight I believe is that in both
cases it seems that the SIDs not only acted as regulators in the traditional interpretation of
the role of a design review agency, but also as a partner in design development. In
Bayonne for example, this active role is formalized ‘Jump Start’, a program designed to
help applicants guarantee approval for their proposals when they accept BTC arranged

19

design input. In the regular review process, the BTC also did not shy away from offering
concrete design solutions that they indicated would satisfy the requirements for approval.
This proclivity to offer concrete solutions is as pronounced in Maplewood’s
process. It is important to note here that in both cases, most projects are of the size that
applicants either could not afford the services of design professionals, or if they did,
many did not have the capacity to go through multiple iterations of the design. In this
sense, proactive involvement seems like a ‘win-win’ situation for both the community
and the applications.
Of course needless to say, whether it is design review or any other domain of
regulation, blurring the lines between regulation and participation in the activity subject
to regulation raises questions about partiality and due process. This margin of discretion
potentially allows SIDs to go ‘beyond regulation’ in pursuing their substantive agenda in
place-making. This observation gives away the title of this study. In the final analysis, the
advantages to interested parties of going ‘beyond regulation’ have to be assessed against
the context of economic, social, and cultural change in the state of New Jersey. This
examination of context introduces the third goal outlined earlier.
The state ‘Municipal Land Use Law’, or MLUL, is very specific as to how
‘public’ design review should be administered, keeping in mind considerations of
accountability and due process. In communities where there is consensus on issues of
place character, it is foreseeable that these communities would naturally opt for the public
process. The interesting questions would be why, given that the option of the public
process exists, communities decide to institute public-private design review. As

20

considerations from the conceptual framework would show, instrumental considerations
of flexibility and expertise cannot be discounted. But any observer should also be mindful
of other less straightforward motives.
The issues of guidelines promulgation and the particular interpretation of the
guidelines though proactive involvement that come to the fore from these two case
studies point in the direction of other strategic advantages that a delegated process might
offer. Firstly, all SID-administered design review processes feature some level of
accountability to representative local government. Going ‘beyond regulation’ through a
delegated process might be advantageous in situations where the political conditions for a
consensus on place character are not present. These strategic advantages frame a debate
about the ‘insulation’ of the regulatory process from representative government.
In my view, the largest advantage of SID-administered design review is in its
capacity to contribute to the maintenance of the social status of New Jersey’s 546
communities in a state witnessing accelerating social and demographic change. At a time
when outright forms of exclusion and segregation have been rendered illegal in the courts
of law and unpalatable to popular opinion, it is not difficult to see how SID-administered
design review can be subverted to achieve many of these strategic goals. Given this very
real possibility, corrective measures that restore meaningful accountability are suggested.
I conclude with the policy recommendation that if the bureaucratic form of the special
district is desirable for instrumental efficiency considerations, then I suggest that serious
thought should be put into formalizing something akin to ‘design review districts’
managed by a body representative of all relevant parties and publics.

21

1.4 Structure of the Dissertation
In Chapter Two, I outline the background theory that informs the discussion. I
first overview some key points in the design review literature from descriptive,
evaluative, explanatory, and normative perspectives. From this review, I abstract and
elaborate on key concepts such as the legislative, substantive, and procedural dimensions
of discretion in the design review process which will inform the framework that I
propose. I then introduce what I see as important political imperatives, including key
concepts in the theory of regulation, delegation, and agency. I also introduce the concept
of social legitimation in its pragmatic, regulative, and normative dimensions. In Chapter
Three I synthesize these findings into the framework of discretion in design review in the
context of political imperatives and social constraints. I also outline the rationale for the
selection of case studies, the methodology for data collection and the design of the survey
instrument.
In Chapter Four, I introduce briefly the history of SIDs and their involvement in
place management. I expand on the state legislature’s goals behind design review and the
politics that informed it and introduce preliminary findings on the involvement of the
state’s SIDs in physical development. In Chapter Five I apply the framework to the
understanding of the review process in both localities and I suggest that the latitude for
independent action on the part of the SIDs derive partially from compromises between
political imperatives. In Chapter Six I review evidence from the application of design
review in both communities and note the proclivity towards proactive involvement

22

‘beyond regulation’. I also present evidence from communities with public design review
and other communities with SID-administered design review as comparison groups.
Chapter Seven probes the legitimacy concerns that this raises from the pragmatic,
regulative, and normative perspectives. Chapter eight is the concluding chapter. I review
the major findings and I highlight some notable milestones in the urbanization of the state
to better contextualize the decision to expand SID involvement in urban affairs and the
advantages of SID-administered design review. I finally conclude with policy
recommendations on how to increase accountability within the context of an
improvement district approach to design review.
23

Chapter 2. Design Review, Politics, Legitimacy, and
Organizational Choice
In this chapter, I illustrate ideas from three different literatures which inform
„Beyond Regulation‟. In the first section, I highlight some descriptive, normative,
evaluative, and explanatory perspectives on design review from the literature on the
subject. Drawing from these perspectives, I propose that from an organizational
perspective design review can be described in terms of three important dimensions as
pertains to the issue of discretion: The type of input in policy setting, or in other words
the agency‟s legislative independence in promulgating policy, the substantive specificity
of the guidelines with which proposals must be consistent, and the procedural autonomy
the agency has in administering review.
I propose that the understanding of how specific review processes come to take
the characteristics they do in these three dimensions can be furthered by considering the
political imperatives and legitimacy constraints that organizational design reacts to. The
second section will tap the literatures on the politics of regulation, delegation, and agency
to illustrate this idea of political imperatives. I highlight various imperatives, both
instrumental and strategic, that inform the dimensions of design review. I finally propose
that these review processes are legitimized to the degree they internalize specific
pragmatic (popular), regulative (legal), and normative constraints, and I expand on some
aspects of these levels of legitimacy.

24

2.1 Design Review
2.1.1 The Rising Popularity of Design Review
According to Shirvani (1981, 12), design review is “all the criteria and methods
used in implementing urban design policies”, and is a tool which serves in “regulating
segments of the visual, sensory, and functionally built environment or a defined area in
accordance with values and goals of the particular community of interests”. From this
definition, it can be said that design review can best be described as an „implementation
tool‟ in the administration of urban design (Lang 1996; Carmona et al 2003).
The objective of the review process is to arrive at decisions about development
proposals on the basis of defined objectives. To this effect, one important aspect of the
review process often discussed by scholars has been the degree to which the conditions
on development are predefined vs. the degree they are resultant of deliberations, often by
a body of experts (Ben-Joseph and Szold 2004). This issue of discretion in design review
has captivated a large segment of the debate (see e.g. Shirvani 1985; Hough 1994;
Cullingworth and Caves 1997), and will be central to the discussion in this study.
In the United States, the purview of local government over development control
has enabled localities to experiment with a wide variety of approaches to design review.
In large scale urban development projects, a locality might simply retain a consultant to
draw up plans for the redevelopment zone. This was the most popular approach
undertaken by partnerships pursuing urban renewal in the second half of the twentieth
century and is still in practice at a smaller scale today. With the resurgence of
conservative ideals in the early 1980s touting the benefits of smaller government,
25

competition-style processes became more prevalent. These were seen to be as a market-
driven antidote to what was perceived to be ineffectual public planning
1
(Delafons 1990).
In the context research in historic preservation, Schuster et al (1997) have devised
a classification of the degrees of government intervention in the control of the built
environment. These interventions range from outright direct government ownership on
one end of the spectrum, to education and information on the other end. It is useful to
consider this schema for the case of design review, whereby review can be said to occupy
a middle ground between these two extremes. Thus if government as developer and
government as organizer of competitions represented two extremes of development
control, the most popular avenue in the last four decades has been the approach of the
design review process.
In the notable 1954 Supreme Court decision in Berman v Parker
2
, Justice Douglas
offered an interpretation of the public welfare that not only was concerned with
traditional issues such as health and fiscal good management but one that also addressed
issues of aesthetics (Cullingworth 1991). In the early days of design review, the legal
rationale for aesthetic controls was predicated on this notion of the connection between
aesthetics and morality, a link which made possible aesthetics controls by expanding the
interpretation of a locality‟s obligation to protect the welfare of a community by the
exercise of police powers.

1
A the time of the preparation of this manuscript, the Township of Maplewood, one of this study‟s cases,
was engaged in a condemnation and redevelopment project on three segments of Springfield Avenue.

2
348 U.S. 26 (1954).

26

This early interest in review however emanated mainly from the desire to address
the proliferation of billboards and was less concerned with architectural aesthetics per se.
After the adoption of the Coastal Zone Management Act of 1972 in California, which
included aesthetic criteria in the review template for proposed development, a definitive
government interest in the aesthetic control of development was for the first time
expressed unequivocally (Habe 1989). The most definitive endorsement of design review
finally came in 1981 where the U.S. Supreme Court in Mertromedia Inc. vs. City of San
Diego
3
legitimized the consideration of aesthetics as an integral component of zoning.
Historically, the impetus for design review emanated from citizens‟ concerns with
the consequences of uncontrolled development. Writing as early as 1970, activist
planners such as Lindbloom (1970) started to make a strong case for environmental
design review to address the ills of uncoordinated urban growth. Many of the then
ubiquitous forms of control such as „no look alike‟ provisions, historic districts, special
districts, and restrictive covenants had failed to address the core issues in a
comprehensive manner. But in was only in the 1980s, following a speculative real estate
boom and the perceived failure of zoning to shape the proliferating urban environments
to a certain a desired level of attractiveness and consistency that communities across the
U.S. turned to design review as a tool of choice (Padjen 1988; Plater-Zyberk 1994).
Design review rapidly gained in popularity because typical zoning controls such
as setbacks, floor area ratio limits, and lot coverage were not tailored to guide developers
in the design aspects of their proposals. The need for an alternative mechanism also

3
453 U.S. 490 (1981).

27

became more urgent as the modernist era in architecture drew to a close and a litany of
„post-modern‟ design paradigms emerged to compete for the succession of the modernist
canon. When there was no longer a consensus in the architectural profession as to the
formal determinants of „good design‟, the salience of the idea of design review as a
necessary instrument to force consistency and predictability on the built environment
increased as was observed by one great student of cities (Rybcynski 1994). By the 1990s
communities were reverting to design review as recourse of choice for development
control at a rate comparable to the growth of zoning in the 1930s (Scheer 1994).
In the context of local control over development in the U.S., the multiplicity of
local approaches to design review has sometimes frustrated scholars interested in
schematization and classification. For this reason, and also because of the perception that
design review is concerned with issues of aesthetics, scholarly interest in the subject
within the planning literature is not voluminous. After sifting through some of the more
important contributions, I adopted an approach that gives examples of what I describe as
descriptive, evaluate, normative, and explanatory perspectives on design review.
One large section of the literature to a large extent espouses the instrumental view
that the nature of discretion is predicated on a determination of the most effective means
to achieving objective goals in design review. To facilitate the introduction of the
theoretical framework that more explicitly considers political considerations in the next
chapter, it also became clear to me that it was important to consider the writings on
design review within each of the descriptive, evaluate, normative, and explanatory
perspectives in a systematic way.
28

Bearing in mind this goal, the analytical sieve with which I sift through the
literature on design review also borrows from the work by Scharpf (2000) on the
essential considerations of governance in a democratic society, which Sharpf developed
on the national scale, and Haus and Heinelt‟s (2005) adaptation of Scharpf‟s work to the
study of urban governance. In his work, Scharpf differentiates between what he terms
input and output dimensions in the assessment of governance mechanisms.
In Scharpf‟s view, input considerations necessitate that government express the
authentic preferences of a community. Output considerations on the other hand dictate
that the decisions promulgated achieve the common interests of that community. When
Haus and Heinelt (2005) adapt Scharpf‟s work to the study of urban governance in
particular, they propose another dimension, through-put, which conveys normative
expectations of the decision-making process. In their framework of urban governance,
Haus and Heinelt predicate these input, output, and throughput dimensions on the criteria
of participation, effectiveness, and transparency, respectively. Keeping to the spirit of
Haus and Heinelt‟s criteria with an application to design review, I emphasize the criteria
of accountability, equal representation in the expression of community values, and due
process as important normative considerations.
The first such essential criterion, accountability, is predicated on the
determination of „authentic input‟ in influencing decisions by those subject to
government. Secondly, the actions of government must have some level of acceptability
in a normative, abstract and principled sense, in the eyes of those subject to its authority.
This criterion can be described in as many normative positions as applies to a situation,
29

such as respect for freedoms of expression, equal protection, and more importantly, the
expression of community values. Thirdly and finally, attention must be paid to the
fairness of an institution‟s decision-making processes, whereby protections against the
arbitrary and capricious use of government powers are instituted. This is achieved when a
process respects the due process rights of applicants.
In the next section I use these use dimensions and criteria to organize my
discussion of the design review literature. To better convey the essential ideas developed
by Haus and Heinelt notwithstanding the literal translation of their work, I shall refer in
my discussion of design review to the input dimension of design review as the legislative
dimension, to that of output as the substantive dimension, and to that of through-put as
the procedural dimension. In this sense, I will describe the descriptive, evaluate,
normative, and explanatory perspectives on design review in terms of the legislative,
procedural, and substantive dimensions of the design review process whenever possible.

2.1.2 Descriptive and Evaluative Perspectives on Design Review
In terms of the legislative dimension, one measure of the discretion a design
review agency has is in the latitude it has in promulgating design guidelines. From the
different approaches in the writings on design review, we can discern at least two
considerations that have a bearing on the accountability of the agency in promulgating
guidelines that are representative of the popular opinion. First, scholars have addressed
the issue of the relationship of the review agency to local government, i.e. whether it can
be described as a public or private entity (Baab and DeSelm 1990). Scholars have for
30

long been addressing private design review, mostly through the study of CIDs and review
conducted by homeowner associations (Punter 1999). Public processes have also received
their share of scrutiny. SID-administered design review is a hybrid process in that
respect.
Another legislative issue with bearing on input and accountability in
promulgating guidelines relates to the nature of an agency‟s authority, i.e. whether it has
a consultative-advisory or decision-making role (Schuster 2003). This is to mean that if a
review agency is private in nature, then accountability considerations might not be as
pronounced if its role in the legislative process is advisory, and vice versa. In her study of
review boards in the U.S. from twenty years back, Habe (1989) reported that only one
third of architectural review boards were decision-making bodies. This finding is
concordance with the customary practice in the U.S. where design review boards serve in
an advisory role to planning boards. These determinations are important in understanding
the degree of influence private parties have on the guidelines promulgation process.
Blaesser (1990) has advanced a schematic representation of the various
organizational structures design review can take at the level of local government.
Bleasser identifies five models, the first representing a process where the review board
has autonomy and decision-making authority, a model he finds to be ideal since design
review is not secondary as a consideration to a more general function such as land use.
Another model, typical of a situation where design review is a tool of economic
development policy for a specific area figures an entity that answers to a redevelopment
agency. The most common variant is the situation where the review board functions in an
31

advisory role to the planning commission/ board. Yet another variant is one where both
the planning board and the review agency are subordinate to the local legislative body
and act in an advisory capacity as such.
The figure below interprets Blaesser‟s graphical schema for the case of SID-
administered design review. The SID assumes the function of an autonomous (quasi-
public) review board enjoying guidelines promulgation, review, and decision-making
authority. In terms of staffing, the design committee members are not employees of the
city or professional consultants, but SID volunteers. SID-administered design review also
in some cases features an appeals process whereby the local council has the authority to
review SID judgments (Figure 2.1).

Figure 2.1 SID-administered Design Review Process

Source: Author

SID Design Review
Board
Municipal council
Planning Board Planning

Design

Reviewing Authority Final decision maker Appeals of decision
Proposal
SID
Board of zoning
appeals
Promulgating Authority
SID
32

In terms of the substantive dimension of design review, we can discern yet
another important dimension of discretion: the level of specificity in the design
guidelines. Again here Shirvani (1981) had deliberated the issue of guidelines at length.
Shirvani classifies objectives by whether guidelines follow performance or prescriptive
standards. He also differentiates between scopes of issues and issues. A focus on „scope
of issues‟ includes general concerns such as compatibility, scale and style, which are
more amenable to performance standards. Performance standards specify general
requirements and tests to ascertain whether the requirements are met. Thus one general
approach is to describe intentions with some degree of generality, such as describing the
objectives (e.g. contextual design) of design regulation (Wang 2003). Other approaches
are multi-tiered in terms of specificity, for example comprising principals (e.g. historic
preservation) and objectives (e.g. colonial character) or specific visions (Kumar 1999,
2002).
Prescriptive standards, predictably, constrain designers in a much more specific
manner (Shirvani 1981). Issues pertaining to different elements of scope, such as street
walls and building heights, are more amenable to prescriptive standards for example. At
the extreme, another approach to guidelines is predicated on prescribing specific design
solutions. A particular interpretation is predicated on describing categories of elements
(e.g. façade proportions, architectural elements, signage, etc.) that are subject to
regulation (Gromlich 1989).
Prescription can apply to many levels. This ranges from parameters (envelope,
scale, e.g. Seattle‟s guidelines), particular styles (classical, tudor - e.g. San Diego‟s
33

guidelines), and to elements (bay windows, porches - e.g. San Francisco‟s guidelines).
From her early study Habe (1989) reported that processes in smaller communities were
much more likely to feature prescriptive standards. In retrospect, this is intuitive since
aesthetic control in these communities is more likely to be a dominant issue.
It is important to note here that a considerable scholarship on design review is
generated by researchers in the United Kingdom where the issues of review, or design
guidance as it is called are acutely expressed in the planning debate because of the
extremely discretionary nature of the system and the heightened interest of government in
issues of design (Booth 1983). Punter‟s (1987) history of design review in England is a
comprehensive expose of the roots of discretionary design review in that country. Punter
exposes the role of a legal system where a tradition of government control of property
rights and the professional trades‟ (including the architectural trades) influence over the
economy have shaped a development control process where the prescriptive approach of
„design manuals‟ is secondary to discretionary architectural advice.
Punter describes how the development control process in England oscillated
between guidance by planners, review by professional panels, and non-intervention, but
featured very little of the prescriptive approach of American system, both in terms of
objectives and process. It is also interesting to note how in the in the 1980s and with the
rising influence of conservatism there was an interest in competition style processes that
paralleled similar developments in the U.S., as mentioned earlier.
Assessing the design review process however cannot be achieved by merely
understanding the legislative and substantive characteristics of the design review agency.
34

Consideration of the procedural dimension in how a specific institution administers
design review is of paramount importance. From the discussion on process in the
literature we can identify another determinant of discretion in the nature of oversight over
a design review agency‟s operations. Alternatively speaking, this concerns the level and
nature of the control over the reviewers‟ actions in the service of due process.
Shirvani (1981) had astutely observed that some localities do not mandate any
standards or guidelines and the review process is often treated as the forum where goals
are generated. From this observation, Shirvani proposes the concept of „approach‟ to
capture whether the process is discretionary or self-administering. The former is where
planners are guided mostly by their professional knowledge in assessing developments
rather than as the latter case where the recourse to detailed guidelines and where
oversight mechanisms play a larger role.
Initially, processes that were predicated on the opinions of review board
members rather than defined guidelines were upheld by the courts. For the courts, this
approach satisfied the demands of the legal „differential substantial evidence‟ test,
meaning that the courts were less inclined to second guess localities in their estimation of
the importance of expertise and its role in the process (Tseng-ya Lai 1998). The courts
upheld discretionary processes under the assumption that the panels of experts that
constituted the review boards were qualified to make definitive aesthetic judgments in
such a way that bureaucrats or the lay public were not
4
.

4
See for examples Reid vs. Architectural Review Board of the City of Cleveland Heights, 192 N.E. 74,
Ohio App. (1963, 81) and State ex. Rel. Stoyanoff vs. Berkeley 458 S.W. 2d 305 Mo. (1970, 306-7).

35

The legal opinion on the issue started to shift as the expansion of representation
on the boards to lay people invited an element of uncertainty to the process. Design
regulations offered a resolution to this issue by reducing the unpredictability of review,
with important legal and professional consequences. Today, even though the majority of
local governments in the U.S. do not favor discretionary processes, some avenues for
public participation exist. Twenty years ago, Habe (1989) found out that only 25% of
communities had some sort of participation mechanism, although it is likely that that
figure is larger today
5
.
The overview above is meant to drive home the idea that it is more fruitful to
think of discretion as a function of legislative and substantive dimensions as well as the
procedural dimension, the latter usually being the aspect of the process that intuitively is
correlated with discretion. Considering these three dimensions, most processes in practice
fall somewhere between fully discretionary and fully self-administrative process.
Extremely discretionary processes afford an independent review body wide latitude in
promulgating policy, feature no specific guidelines, and do not feature oversight
mechanisms. In Cincinnati, we find the extreme case of a design review board that
functions as an architectural jury which deliberates proposals relatively unconstrained by
set guidelines or procedure (May 1994).
Some less discretionary processes feature set guidelines, but the reviewers have
latitude in deciding which guidelines should pertain to the project subject to review.

5
In some interesting experiments such as in Paramount, California, some aspects of development control
are placed solely in the hands of area residents such as in the city‟s program to encourage owners and
tenants to coordinate rear areas through the bloc (Habe 1990).

36

Seattle‟s plan for example emphasizes the design elements of site planning, height, bulk
and scale, architectural elements, and pedestrian environment. These elements are
elaborated into guidelines, though the board has latitude in determining which are
relevant to any particular case.
An even less discretionary process would feature baseline guidelines for „as of
right‟ allowances, the judgment on whose satisfaction would be straight forward. Such
processes may feature another tier of objectives subject to board discretion and whose
satisfaction allows developers to reap bonuses or not „as of right‟ development
allowances. In Portland, the fulfillment of objectives such as „contributing to the
cityscape‟, the „urban stage‟ and the „urban action‟ is tied to generous (area, height)
bonuses (Punter 1999). In conclusion, the extent to which a review process is
discretionary or self-administering makes for a structured classificatory schema. This
schema, however, is not very informative as to why an agency would lean towards
adopting one process or the other, which is partially the subject of this work.
Another category of studies are evaluative in nature and attempt to measure the
desirability of one approach to review over another as differentiated in the descriptive
studies. These studies employ an experimental or quasi-experimental research designs to
ascertain the efficacy of design review arrangements in producing environments deemed
desirable by some metric. Studies in this vein however constitute the minority of studies
on design review.
One notable study in this regard was conducted by Nasar and Grannis (1999) in a
study from Columbus, Ohio. Nasar and Grammis were interested in whether
37

discretionary design review achieved better results, as judged by expert and popular
opinion, than administrative design review. Interestingly enough, the authors reported no
significant differences, both when results were gauged through the reactions of expert
judges or through a large sample of area residents.
To make the results of this study bear on the efficacy of discretionary review in
general would however not be appropriate, since the authors‟ sample population of
projects consisted mainly of relatively simple remodeling of single family homes,
whereby the nature of the projects precluded the ability to ascertain the potential benefit
of discretionary review. Although an earlier study by Stamps and Nasar (1997) did
address new construction, it also was limited to the context of single family homes.
The English experience here is also notable. In his study of four British
development authorities, Booth (1983) argues that the poor quality of schemes can be
explained by lack of expertise on the review boards. These boards, Booth argues, limited
their review to issues peripheral to the design process, such as landscaping, almost
always after the design was complete.

2.1.3 Normative and Explanatory Perspectives
The framework of legislative, substantive, and procedural dimensions is also
relevant to the discussion of some normative approaches in the scholarship. In terms of
the legislative dimension, Carmona et al (2003) observe that in the U.K., because the
review process is discretionary, planning and design review are integrated, while in the
U.S. they are more likely to be separated. Their criticism of the U.S. approach is that in
38

the absence of a holistic approach, the danger is for design review to be reduced to a
narrow preoccupation with issues of aesthetics. In Germany, design review is not only
coordinated with planning review, but with building code review. These observations
compel the authors to conclude that although design review cannot be a substitute for
good design, integrated review mechanisms remain superior.
In terms of the substantive dimension, the attention to the problem of design „for
design‟s sake‟ is a long established concern in the literature. Habe (1989) cautions against
processes that feature objectives that might lead to discrepancies with general goals, are
not based on surveys or principles, and lack a clear definition of concepts. She argues that
non-aesthetic standards, such as behavioral criteria, social-cultural considerations, non-
visual sensory criteria, and psychological considerations are more suitable for public
policy than aesthetic criteria.
For those commentators who have conceded to the aesthetic focus of design
review, one concern is that review not encourage banal design. Lindbloom (1970)
cautions against objectives that foster mediocrity. Cullingworth (1991) argues that the 'no
excessive difference' rule that is central to so many review processes should be balanced
by a „no excessive similarity‟ rule to curb the drive towards homogeneity. In a synthesis
of over 30 years of work on design review, Punter (2007) offers normative principles
distilled from his long career as a student of design review. These include addressing the
shortcomings of zoning, addressing intangible goals such as community and vitality,
using multiple approaches, non-exclusion, developing both generic and contextual design
principles, and distinguishing between mandatory requirements and design guidance.
39

More has been written about procedural dimension in the normative perspective,
where the instrumental approach also permeates the frameworks proposed in the
literature as criteria to judge design review. Habe (1989) argues that one important issue
in effective review processes is retaining some measure of flexibility to insure efficiency.
Below are some more comprehensive criteria frameworks that aim at establishing fair,
effective processes.
Design Review in historic districts has probably been the most ubiquitous
application of design review. Since by definition historic districts aim to preserve the
visual and more often stylistic character of an area, the fact that there has been less
general concern with issues of design freedom and a higher acceptance of prescriptive
guidelines is expected. From this perspective, assessment criteria for a self-administering
process such as those developed by Bowsher (1978) for the National Trust for Historic
Preservation expectedly have fairness as their main concern. Some of these criteria are:
providing minimum standards for making decisions, treating all applicants fairly and
uniformly, consistency in decisions, evidence of fair procedure and objective criteria, and
maintaining standards of appropriateness.
At the other end of the spectrum, the prevalence of discretionary processes in
many other applications of forward-looking urban design has prompted the search for
criteria that meet procedural challenges of discretionary review. One often cited
framework by Lefcoe (1974) calls for the adoption of ideas borrowed from established
judicial reasoning to design review with the intention of promoting predictability in the
review process. Lefcoe‟s three prescriptions are: insuring the right of developers to
40

challenge the composition of the jury or board members, the requirement that board
members write opinions explaining their reasoning, and the stipulation that boards derive
principles empirically from past judgments as in the case in common law.
Not many attempts have been made at deriving a general framework of criteria
that mediates between these two extremes of a prescriptive and a flexible process.
Punter‟s (1999) framework for evaluation stands out however. Punter considers such
criteria as the extent to which policies are based upon a careful study of the locality,
consultation with community, the degree of over prescription, the degree of precision,
and evidence of a comprehensive, coordinated effort. Punter (2007) also stresses the
importance of community participation, establishing proper administrative systems,
implementing efficient processes, identifying clear a priori rules, and providing
appropriate expertise. This „meta‟ analysis keeps open the question of when particular
tools are more effective and why.
These frameworks however leave out any discussion of strategic considerations,
such as when Bowsher (1978) talks of the „most important‟ design review concerns in the
district, or when Punter (1999) exhorts about the „careful‟ study of the locality. When
Lefcoe (1974) talks of deriving principles from past judgments, he is asserting the
possibility of abstraction across context and circumstance. In the English context again,
Booth (1983) argues that the limits of appropriate discretion should be: relevance to
planning, relation to the development application, necessity, enforceability, precision, and
reasonableness.
41

Biddulph (1998) argues that successful intervention hinges on a proactive
approach through the use of an urban design strategy and development briefs for key
development sites. Punter (1987) argues that reviews should focus on two issues: the
quality of the design in itself and in context. Carmona (1998b, 1998c) calls for design
review that is capable of managing competing interests. In this analysis, a successful
process would be able to straddle between intervention and interference, objectivity and
subjectivity, process and product. In a more important insight, Carmona (1998a)
suggests that there needs to be an emphasis on design, not just review through the use of
design panels.
Other than descriptive, normative, and evaluative perspectives, the literature also
offers different explanatory perspectives on the preference for different review processes
and hence levels of discretion. These perspectives do not constitute a core element of any
theory of organizational choice, but are insights often made in the course of descriptive
analysis of specific cases. As I argued earlier, the literature to a large extent espouses the
instrumental view that seeking discretion is predicated on a conviction about the most
effective means to achieve design review goals. In this approach, explaining the structure
of the design review processes is generally considered by reference to a locality‟s
objectives for urban design and the „most effective‟ route to achieve them. In this
approach, the focus is on the 'hows', rather than its 'whys' (Mann 1999). Below are some
of these perspectives from the work of Shirvani (1981), Punter (2003b) and Schuster
(2003).
42

Clarity of goals: When a locality has a clear idea as to the character it wishes to
achieve, it may opt for a self-administering approach in a desire to limit deviation from
its goals, options to developers, and negotiations between city and developer. On the
other hand, a discretionary approach is sough when the goal is to discover values in the
process of review. Discretionary processes are suited to the situation where boards want
to be open to developers‟ and residents‟ interpretation of principals and suggestion of
alternatives.
Nature of objectives: When hard to quantify goals such as „compatibility‟ are the
objectives of regulation, a discretionary process might be more appropriate since it allows
mutual adjustment to meet the objectives. Functional requirements such as the provision
of open space can more easily be approached with a self-administering process. This is
also the case for example when policies are tied to „milestones‟, such as bonus FAR for
public space improvements. In this case even though discretion might be desirable, it
might not be feasible to institute.
From the English context, Booth (1983) argues that authorities tend to retain
guidelines (called conditions in the U.K.) that have proven easy to uphold and least
subject to appeal. Developers, on the other hand are most likely not to appeal conditions
that are not integral and that do not challenge their schemes fundamentally (Beer 1983).

2.1.4 The Politics of Design Review
On the other end of the spectrum, perspectives on design review that are
predicated on an explicit political calculus have also been proposed. These perspectives
43

have not been central to any theory of design review, but are advanced as observations in
the context of the illustration of specific projects. Again from Shirvani (1981), Punter
(2003b), and Schuster (2003) we can glean the following observations:
Dispersion of powers: The presence of multiple agencies can result in a reduction
in the support for discretionary processes because each agency would want to protect its
authority over the aspect of the development it oversees. A single agency authority, such
as the Boston Redevelopment Authority, is more likely to have the interests of its
discretionary review panel that it controls aligned to its objectives.
Level of political support: Discretionary processes might be easier to implement
with the support of politicians and citizen involvement. The Vancouver Urban Design
Panels composed of professionals had an advisory role in the planning process and were
introduced in 1973 as part of a drive to reform the process to be more inclusive and
transparent.
Political acceptance of government involvement: I previously briefly made
reference to the account by Schuster, de Moncheaux, and Riley of the nature and limits of
government intervention in historic preservation, which I proposed could have
application in the case of design review. The authors classify government intervention as
either being at the level of ownership, regulation, incentives, property rights influence,
and information. Each approach has its rationale and drawbacks.
Ownership might be suitable for cases where there is no private interest in
development. Incentives such as taxes and payments might be costly to provide, but
necessary in some circumstances. Property rights transfers such as TDR might have
44

equity effects that can or cannot be mitigated. Information such as listing and promotions
might not deter undesirable behavior. Regulation, most importantly, might be captured.
According to the authors, the choice of tools should be conditioned by costs, consensus,
respect for government, etc. Though their scheme is not prescriptive of policy solutions,
it offers a rich template of conditions to consider.
Another strand of scholarship takes an overtly political stance where academic
perspectives critical of design review have prevailed. The volume by Scheer (1994) can
be mined for a multitude of perspectives indebted to a politics critical of design review as
an extension of the bureaucracy, and consequently, of government as regulator (Taylor
1994).
The modern bureaucratic mentality: Gutman (1987) for example opines that
design review is the product of the modern bureaucratic mentality, whose edicts have
little respect for the profession of architecture. Objectively verifiable knowledge becomes
the only criterion for design, which subjects aesthetic concerns to the same model of
judgment as applied to technical considerations. Put otherwise, the belief in the
mechanical derivation and reproduction of iconography through guidelines is the product
of the modernist rationality (Russel 1994).
The regressive agenda of design review: Design review‟s most prevalent criticism
is that in its effort to prevent a truly unadvisable course of action it outlaws the possibility
of positive change. Boards can, for example, abuse the review process with the intention
of limiting the creativity of designers and to further design goals not intended by the
45

legislative body within the constraints of a perfectly legal advisory process and definite
guidelines (Beasely 1994).
The clandestine agendas of design review: The abuse of design review for
political gain has also been alluded to, as in abusing aesthetics regulation to advance
political agendas (Scheer 1990). Private public partnerships can have the incentive to
abuse review powers in prioritizing financial rewards over design quality by awarding
developers maximum bonuses for public improvements of dubious quality (Frieden and
Sagalyn 1989).
There has also been reference in the literature to the subtle uses of „expertise‟
through design review as a cloak for dogma (Lai 1998). One observation is that
prescriptive guidelines can serve as political ammunition so that a political process could
be portrayed as being objective. Design review has also been denounced as a deliberately
superficial process and as a method of diverting attention from more meaningful action in
addressing urban issues (Scheer 1990).
The social consequences of design review: One of the more prevalent criticisms of
urban design initiatives is that they frequently result in social exclusion by increasing the
costs of development, promoting gentrification (deliberately or inadvertently), or
diverting public funds towards higher order needs like culture and aesthetics at the
expense of the provision of affordable housing or access to social services and education
(Punter 2003a).
Lai (1988) argues that all planning controls result in some form of exclusion, but
that urban design initiatives have a particularly direct effect on development costs. The
46

recent promotion of design-led regeneration has been similarly linked to gentrification as
either an explicit or covert strategy (Lees 2000). Districts not subject to review have to
contend with reduced environmental quality. There are also regional equity issues in the
sense that public design control resembles growth control in its impact on affordability.
Another possible adverse impact of community design control can be the restriction or
inhibition of the growth of small business (Habe 1989).
The cultural consequences of design review: The most important cultural
consequence of design review is predicated on the fact that architecture has the capacity
to announce the status, values, and interests of a community. In this sense, design review
runs the risk of suppressing a minority view point (Scheer 1990). In this vein, Carmona
(1998a) argues that design review can enforce a majority‟s cultural bias on minorities,
often to extents so great that one observer disparagingly brands design review a tool in
the imposition of a disciplinary society (Pouler1994).
Research also reports on design guidelines written ostensibly so as not to impose
any particular solution on developers and that referenced ostensibly illustrative images
which in practice fast tracked the approval of projects that adhered to the imagery in a
literal fashion as we learn from one example from Germantown, Tennessee (Hack 1994).
What is often sought by design review is not „quality‟ but associational harmony, which
is a reflection of cultural stability (Costonis 1982).
Not all political accounts of design review have been disparaging though. In
politically contentious environments, design review has been credited with having a role
in mediating conflicting interests (May 1994). It can create predictability for developers
47

by administering guidelines that represent a compromise between the goals of
development and preservation interests (Gammage 1994).
My assessment of the treatment of politics in the literature is that this discussion
of politics is a meta-analysis of how politics informs the decision to implement design
review in general. As mentioned earlier, I believe that scholarship that examines specific
political motivations from the „middle of the road‟ analytical viewpoint of organizational
choice is wanting. As I will attempt to show in the next chapter, a framework that
incorporates not only the objectives of design review but also its politics in a systematic
way predicated on an analysis of institutional design can close the lacunae in the
literature and inform our understanding of why particular design review processes are
adopted by different localities.
The ultimate goal of this approach is to better assess the consequences of the
adoption of various regimes of design review. In the next section, I will introduce the
literature on political imperatives and legitimacy constraints that I think will help
illuminate the instrumental and political dimensions of design review from an
organizational design perspective.

2.2 The Political Imperatives of Design Review
2.2.1 The Politics of Regulation
To inform the scholarship on design review as a form of development control, I
propose a framework that engages the political imperatives and constraints of social
legitimation formative of the design review process. From the politics of regulation,
48

delegation, and agency we can distill overarching themes which affect the discretionary
aspects of institutional choice
6
. In the following overview, I differentiate between the
instrumental and strategic imperatives of design review.
One central question of this study is to understand why certain localities institute
design review in the first place. Scholars have put forth many approaches that probe the
rationales for regulation as a government prerogative. The more instrumental rationale of
regulation is what has been termed the public interest theory of regulation. Through
regulation, the government in the public interest attempts to align the regulated actors‟
interests with the public‟s interest. Government, faced with compelling social pressure or
crises, enacts legislation to prevent certain people or industries from pursuing harmful
practices. Within this general framework, many conditions explain why the public or
interest groups seek regulation in a particular domain.
Some of the better addressed reasons are forestalling monopolies, curbing rent-
seeking, limiting excessive competition, redressing asymmetric information, and the
control of externalities (Breyer 1982). This approach concurs with the view of neo-
institutionalists who argue that regulation is a product of the prevailing social model of
fairness (Ruef and Scott 1998). This, of course, is an instrumental, idealist, „good
government‟ theory of government action.
There are then what Wilson (1980, 1989) calls self-interest theories of regulation.
The pluralist tradition, pioneered by figures such as Truman, Dahl, and Lindblom saw

6
This review is not intended to be a comprehensive treatment of these topics, but an illustration of how
such a framework might incorporate the idea of political imperatives to facilitate systematic analysis.

49

agencies as being responsive to the defacto decentralized bargaining amongst interest
groups. The view of interest group theorists is that regulation is a bargaining process
open to groups with the resources to engage in collective bargaining and who can
participate in the allocation of benefits (Romer and Rosenthal 1978; Tollison 1991).
Here interest group bargaining insures a just distribution of political rewards. For
example when consumers desire protection from producer monopolies, they can leverage
their influence with government to achieve their goals.
Pluralists today are seen today as having made unrealistic presumptions about
access to resources and the capacity of publics to organize (McFarland 1987). It may thus
happen that some agents may be able to manipulate the regulatory process to further their
interests at the expense of rivals and the general public. In the aftermath of the failures of
American domestic and foreign policy in the 1960s and 70s, scholars in the elitist-
pluralist tradition, inspired by a resurgent Marixism, spoke of the capture of regulation
by organized interests, a perspective which came to challenge the view of pluralizst
interest group politics.
Low organization costs for elite groups (Olson 1965), their capacity to manipulate
the issues (Schatschnieder 1960), and the decentralized and fragmented American system
(Lowi 1979) were some of the many mediating factors hypothesized to result in capture.
When these groups face legal and cost impediments to control markets privately, they
resort to regulation as a strategic recourse (Schneiberg and Bartley 2001; McGuire 1989).
Finally, agents may seek regulation as protection from government opportunism.
Here the rationale of uncertainty mitigation is also an impetus for seeking regulation.
50

Uncertainty is a pervasive theme, or collection of themes, in the literature on regulatory
origin. On the one hand, those interests subject to regulation may regard regulation as a
means of reducing the uncertainties inherent in market competition. This is the view
developed by Owen and Braeutigam (1978) in their analysis of the regulatory process.
Regulation is also sought when there is wide disagreement as to what constitutes
legitimate practices and transactions
7
.

2.2.2 The Politics of Delegation
Another central question is to understand why local governments would choose to
delegate design review, a regulatory function, to SIDs. Scholars have offered some
interesting, but not necessarily mutually exclusive insights into this matter in their
writings on delegation (see e.g. Roderick and McCubbins 1991). Following Fiorina
(1982), I shall describe these as good government (instrumental) and legislature benefit
(strategic) theories of delegation.
Probably the most widely cited and acknowledged rationale for delegation is the
argument of expertise. This argument is predicated on the notion that the complexity of
issues the subject of regulation in today‟s sophisticated society necessitates its delegation
to expert, nonpolitical administrators. These administrators judge by the laws

7
I should briefly also point that irrespective of the general intentions behind regulation, there are
conditions that enable regulatory agendas to be proceed. James Q. Wilson (1980) has proposed a political
theory of regulation that is predicated on the incidence of benefits and costs. Briefly speaking, when the
benefits are concentrated and costs are diffuse, regulation is immediately sought by the interest group who
is the beneficiary of regulation. Alternatively, Van Doren (2005) proposes that regulation is instituted when
the interests of „moralists‟ (groups ideologically in favor of certain measures) and „bootleggers‟ (those who
might benefit financially from the proposed regulation) align.

51

promulgated by the legislating body. The alternative is seen as a costly, ineffective
dependence on the legal system for redress, which leads to delay and inconsistency (ibid;
Theis 2001).
On the other hand, the flexibility rationale for delegation rests on the premise that
because of social, economic, and cultural evolution prescriptive detailed laws run the risk
of failing the test of relevancy under changing circumstances. Entrusting a regulatory
body with the administration of flexible guidelines permits experimentation with a
multiplicity of approaches which is ultimately more effective in meeting the legislature‟s
original intent (Fiorina 1982; Epstein and O‟Halloran 1999).
The interest group competition rationale for delegation is predicated on the
prevalent view of the public interest as a compromise of competing claims. When
government is viewed as an arbiter between interest groups, it delegates to create a
procedural venue were all interest groups, government and private, bargain for benefits
(Lowi 1979). Not all assessments of this position are favorable, as some have asserted
that “it constitutes a perversion of a descriptive model - pluralism - into a normative
justification for various features of pluralist politics: bargaining, log- rolling, and veto-
groups” (Fiorina 1982, 54).
Obviously the assumptions the „good government‟ perspectives on legislative
intent can only partially explain the preference for delegation. The perspective of
„legislature benefits‟ thus redresses this shortcoming with by recognizing the strategic
imperatives in the decision to delegate. What is important to realize is that some of these
benefits that incur to the legislature (or city council or town committee in the case of this
52

study) might not be in the best interest of its constituents (local residents), as features of
the policy process induce differences in interests between both parties.
One rationale the straddles the divide between both instrumental and strategic
rationales is the decision-making costs rationale. If construed narrowly as an issue of the
„transactions costs‟ of arriving at comprehensive and complete legislation or an issue of
the division of labor as a matter of efficiency, then delegation as a cost-cutting measure
can be viewed through the lens of the good government rationale (Doleys 1999; Theis
2001). This rationale can however be construed as fulfilling a strategic calculus. Another
more expansive notion of costs thus involves opportunity costs. The legislature would be
more interested in investing its time in other work that furthers their chances at
reelection, and here the decision-making costs rationale can be seen from the perspective
of legislature benefits (Fiorina 1982).
Alternatively, the rationale of shifting responsibility rests on the premise that
through delegation a legislature not only avoids decision making costs but political costs
as well. This affords the legislature (in this case, a township or city council) the
opportunity to disguise their responsibility for the consequences of the decisions
ultimately made (Fiorina 1982). Delegation creates a perceptual distance between the
legislature and the consequences of policy (Buthe 2006). When controversy arises, the
legislating body can then intervene from the position of overseer to propose sanctions,
rectification, or mediation.
The rationale for credible commitments, finally, is predicated on the notion that in
democratic systems, and under the expectation of alternation, interest groups with a stake
53

in regulation cannot reasonably expect consistency in decision-making over time, nor
even an honest effort to tackle issues that require long term solutions and whose
resolution is not foreseen within the term of current officeholders. Delegation to a third
party in this sense insures the credibility of decisions and the stability of negotiated
outcomes
8
(Moe 1991; Doleys 1999; Miller 2000).

2.2.3 The Politics of Agency
A third important point is to understand, given regulation and delegation, why
local government would choose to exercise oversight over SIDs in particular situations
and not in others. Here the precepts from principal-agent theory are insightful.
Agency theory alerts us to the important precept that when (local) government delegates,
it has to deal with possible divergence of interests between itself and its agent
(McCubbins and Schwartz 1984; McCubbins, Noll, and Weingast 1987; Epstein and
O‟Halloran 1999; Langbein 2000).
The extent of asymmetric information, which can lead to hidden information and
hidden action (Kieweit and McCubbins 1991; Lupia 2001), is one of the most important
factors to consider in the decision to extend oversight or not. Another condition that
frames the latitude for discretion is the agents‟ familiarity with their principals’ policy
preferences. Even if an agency is not necessarily prone to holding interests that conflict
with those of the city council (in the case of design review), they might not have clarity

8
This perspective is also advanced by Miller and Whitford (2007) who cite the need for delegation to
control moral hazard by the state.

54

as to the interests of the council for various reasons (e.g. simply because the mandate was
too broad).
Something akin to strategic motives in the politics of agency can also be
formulated. The existence of multiple principals here is an important factor.
Bureaucracies might have to answer to principals on various levels of government, or
have to reconcile between legislative and judicial demands (Kieweit and McCubbins
1991; Horn 1995; Hammond and Knot 1996). Competing principals jockey for control
over the agency to align its operations with their interests. One other issue to contend
with is the extent of political interest or indifference by the principal in the workings of
the agency. Politicians make educated assumptions as to how much constituents are
interested in agency decisions, and whether oversight or the lack of thereof would help
them in their reelection bids (Hammond and Knot 1996; Weingast 1999).

2.2.4 Politics and Discretion
For a local government pondering the issue of agency design, the various
considerations of the politics of regulation, delegation, and agency have implications for
discretion. In a commentary on the politics of regulation, Laffonta and Martimorb (1994)
have for example reported on how the choice of specialized agencies with a narrow
latitude for discretion is sought by legislators because it increases the overall transaction
costs of capture, effectively insuring the insulation of regulation from the influence of
interest groups.
55

Buthe (2006) argues that some rationales for delegation call for more discretion
than others. If the intent is shifting responsibility or fostering credible commitments, then
design that features more delegation is sough than in the case the goal is benefiting from
expertise. Also on the subject, Moe (1991) posits that given the fact of alternation in the
political process, winners „hobble‟ their creations with a mix of both substantive policy
and procedural requirements in order to insure against agency drift and to have their goals
met even when the bureaucracies answer to other interests in the future.
In terms of agency, high discretion might be a result of disagreement amongst
multiple principals, who would in turn give their agent a vague mandate. This can
provide an agent with the latitude for independent action which they might use to act in a
discretionary capacity (Horn 1995; Spence 2003). Those who argue to the contrary, such
as Langbein (2000) posit that disagreement leads to uncertainty about loyalty and invites
strict control, which reduces discretion. In the case of the lack of familiarity with her
principals‟ preferences, a risk-averse agent with no clear queues as to the rewards and
penalties for any particular course of action might be inclined to proceed on a
conservative route and self-impose limits on discretion (Brehm and Gates 1997).
In the case where tasks are complex, issues of agency drift might not be as acute.
Here Heiner‟s (1983, 561) argument that „observed regularities can be fruitfully
understood as behavior rules that arise because of the uncertainty in distinguishing
preferred from less preferred behavior‟ is insightful. If convergence of interests and
56

commitment to goals cannot be insured through initial selection, incentives, social norms
or leadership (Robertson and Tang 1995), then discretion might be diminished
9
.
Given these sometimes contradictory perspectives, West (1997) expresses
concerns that caution be exercised so as not to imply over-deterministic causal
relationships in a way that has lead scholars in the past to espouse sometimes
contradictory conclusions about the determinants of discretion. One way to address
West‟s concerns is to realize that the nature of discretion is negotiated in the interplay
between the politics of regulation, delegation, and agency rather than per any of these
parameters independently.
This perspective has its basis in partial elaborations by Huber and Shipan (2002)
and Buthe (2006). Huber and Shipan argue that assumptions about the divergence of
interests (politics of agency) are not the only determinant of discretion. For example,
even if government has a desire to restrict discretion, it might simply not be able to do so.
Other than agency considerations, Huber and Shipan argue three other factors are at issue
that might have countervailing influences: the capacity of politicians to write detailed
statutes, the bargaining environment (i.e. political hurdles to legislation), and effects of
non-statutory factors (e.g. role of the courts). Other than highlighting factors that describe
the institutional context in which the politicians function, the first of these factors (the
capacity to write statutes), is akin to the expertise rationale for delegation. Here Huber

9
There have been other perspectives on this issue. Eisenhardt (1989) notes that if contracts are designed to
be outcome- based, then there is less likelihood that principals should worry about their agents actions.
Miller and Whitford (2001) argue that sometimes incentives might prove to be too costly, in which case
monitoring becomes necessary.

57

and Shipan thus make an explicit link between the politics of delegation and the politics
of agency.
This link between the politics of delegation and agency is further elaborated on by
Buthe (2006). Incorporating the dynamic element of time, Buthe argues that post-
delegation dynamics of bureaucratic drift either lead to the persistence of an agency
relationship or not. Here the perceived costs of maintaining or revoking the relationship
with the agent given a calculus that weighs the risks of agent drift against their increased
asset specificity are an important consideration. This, in turn, is predicated on the initial
imperative for delegation, whether instrumental or strategic.
Mattli and Buthe (2005) extend this framework to the study of private
delegations. According to the authors, some rationales for delegation such as expertise or
shifting responsibility create larger incentives for private delegations. When this happens,
then the agent would have two principals, one public and another private, which creates
the potential for drift which the principal has to account for in his calculus of advantages
and liabilities. The authors make the prediction that the expectation should be to see
delegation to private actors especially in seemingly technical, not overtly politicized issue
areas. Their framework, which incorporates delegation and agency considerations in the
complicated by the consideration of a private agent, could not account for how a task as
politicized as design review is delegated. The incorporation of the imperative regulation
into the analysis, which begs consideration of issues such as capture or escaping
government opportunism, might offer insights into why that happens.
58

In the spirit of the work by Huber and Shipan, Buthe, and Mattli and Buthe, I
assert that incorporating the imperatives of regulation, in addition to delegation and
agency, improves our understanding of the calculus of discretion. The resultant
configuration of design review in its legislative, substantive, procedural, and dimensions,
as I will propose in the next chapter, often exhibits the tradeoffs between these three
imperatives.

2.3 Legitimacy in Urban Design Review
2.3.1 The Idea of Political Legitimacy
The second component of the framework which I propose in the next chapter is
that of legitimacy constraints on political imperatives discussed in the previous section.
In the course of their discussion of the Boston Civic Design Commission, Ben Joseph and
Szold (2003) argue that in order a discretionary process to be validated, it ultimately
requires some form of popular legitimation. But how can this be achieved?
To some, the answer is technical. Elaborated from his work on transactions costs
analysis, Williamson (1999) had proposed a theory of the bureaucracy where the
determination of whether a function is more effectively handled by a public or private
organization is made through a calculus that takes into account the nature of the hazards
involved, and the costs incurred in containing these hazards. In light of the impracticality
of such quantification, I argue that it is important to take into account the factors that
legitimate the choice of certain bureaucratic structures irrespective of the possibility of a
comprehensive assessment of their performance.
59

As Walker, Thomas, and Zelditch (2001) and Searle (1995) rightfully proclaim,
legitimacy is one of the oldest problems in the history of social thought. In their seminal
treatise on the social construction of institutions, Berger and Luckmann (1966) stress the
fundamental insight that institutionalization and legitimation are complementary
processes in society. As Berger and Luckmann (ibid, 86) state, “legitimation justifies the
institutional order by giving a normative dignity to its practical imperatives”. Legitimacy
is thus an important strategic preoccupation for any organization
10
.
Organizations engage variously in defending, extending, or maintaining
legitimacy as the situation demands (Ashforth and Gibbs 1990; Deephouse 1996).
Legitimation is an especially important strategic function for nascent organizations
(Aldrich and Fiol 1994). Organizations may seek this legitimacy by replicating the forms
of prevalent institutions and organizations (DiMaggio and Powell 1983; Amburgey and
Hayagreeva 1996) or embodying a professional field‟s norms by seeking the sanction of
gatekeeper organizations (Meyer and Rowan 1977; Ruef and Scott 1998). Legitimacy can
be achieved by recruiting reputable stakeholders to mobilize resources (Zimmerman and
Zeitz 2002), utilizing appropriate administrative processes (Eisner 1991),

and stressing
the value of organizational outputs (DiMaggio 1988; Dacin 1997).
With these insights in mind, one can say that today SIDs derive legitimacy from
the current positive view of deregulation in public administration (Hall and Hubbard
1996; Jessop 1997, 2002), dominant notions of the roles of local government and self

10
Procedures, conventions and contracts are some of the more important vehicles through which
organizations are replicated (Matheson 1987; Zelditch 2001).

60

help in civil society, established practices of private-public partnerships in urban
development (Beauregard 1998; Sagalyn 2007), and declining levels of confidence in
government (Brooks and Cheng 2001). In the ensuing elaboration I attempt to arrive at a
theoretical classification that accounts for the different concepts that these precepts
represent.
In the study of politics, the early Greek philosophical tradition (e.g. Plato in the
Republic and Aristotle in Politics) exhibited some of the earliest concern with a
normative theory of the legitimacy of power. From the perspective of regime interests,
the perception was that legitimate authority is sought because of the practical benefits in
that it obviates the need for other more costly means such as incentives or coercion
(Grafstein 1981; Matheson 1987). Today, for institutional sociologists and political
scientists, the critical imperative for theorists is in the understanding of how political
systems, even when they sometimes reproduce systemic inequalities, are legitimized by
their constituents
11
(Vincent and Roback 1994; McNutt 1996).
Modern day social scientists have thus long been concerned with understanding
the sources of the stability and legitimacy of emergent political, social, and bureaucratic
structures. Today research on the subject spans diverse fields such as political sociology
(Habermas 1975), the study of organizations (Clark 1956; March and Olsen 1976;
Dowling and Pfeffer 1975; Meyer & Rowan 1977; Golant and Sillince 2007),
organizational ecology (Baum and Powell 1995 and Zucker 1989), the legitimacy of the
state and policy making (Almond and Verba 1963; Niskanen 1971; Mondack 1994;

11
See also Douglas 1986; DiMaggio 1988; DiMaggio and Powell 1991.

61

Majone 1999; Papadopoulos 2002; Carrol and Carrol 2002), environmental governance
(Douglas 1982; Bernstein 2004), and the critical studies of the professions (Abbott,
Thompson, and Sarbaugh-Thompson 1988).

2.3.2 Application to Urban Governance
The contemporary conceptualization of legitimacy as a critical and empirical
theory has its origins in the work of eminent sociologist Max Weber, first outlined in his
seminal work of 1918 Economy and Society. Weber identified three universal forms of
the legitimation of power he called legal, charismatic, and traditional. In Weber‟s
framework, legitimation is derived legally from rationally established rules,
charismatically from the extraordinary qualities of specific persons such as leaders and
luminaries, and traditionally from the sanctity of immemorial traditions (ibid).
The enduring hold of Weber‟s ideas is manifest in the fact that the dominant
framework for understanding legitimacy today, the “perceived consonance with relevant
rules and laws, normative support, and alignment with cultural cognitive frameworks”
(Scott 2002, 59) can be traced to his pioneering work. Other social scientists speak of
pragmatic, normative and cognitive rationales (DiMaggio and Powell 1991; Suchman
1996). These different forms can be understood as being on a continuum from propriety
or individual belief to validity or common consensus (Stryker 2004).
In synthetic view, I propose that it can be said that pragmatic mechanisms are
predicated on behavioral approval, instrumentality, and a strategic calculus of rewards
(Habermas 1975; Zelditch 2001). Regulative legitimacy can be thought of as passing a
62

higher threshold, that of consensus amongst the citizenry at large that is institutionalized
in law. Normative or moral mechanisms constitute the most prevalent form of
legitimation. They involve attitudinal approval, favorable affective orientation, and
correspondence with personal value-systems (Tyler 1990).
Cognitive mechanisms stress comprehensibility, taken-for-grantedness (Zucker
1989), resonance with the larger context (Weick 1995), fit within the general social
framework of beliefs (Walker 1991; Suchman 1996), consonance with widely accepted
logics of action (Weick 1995; Zucker 1989), and resonance with other policy discourse
and other cultural discourses
12
(Jessop, Peck and Tickel 1999).
As mentioned earlier, an important operationalization of the concept of legitimacy
in the field of urban governance is developed by Haus and Heinelt (2005, 13), who define
it as “trust in the problem-solving and interest mediating capacity of representative
institutions”
13
. To that effect, Haus and Heinelt elaborate on Scharpf‟s (2000, 1999)
essential qualities of democratic institutions introduced in the previous section to propose
a schema of the legitimation of institutions of urban governance with input, output, and
through-put pillars.
Input legitimacy is derived from adherence to accepted norms of participation of
different policy interest groups. This dimension of the legitimacy of a political institution

12
Some studies have developed a sector-specific theory of legitimacy suited to the public bureaucracy. For
Hannigan (1977), the issue with public organizations is that since the link between service provision and
demand gauging (though payment) is severed, legitimacy is sough not in the general public but in the
support of influential politicians. Hannigan and Kueneman (1977) see the legitimacy of public
organizations in the criteria of autonomy, visibility, and competence.

13
See also Heinelt and Getimis 2006; Haus, Heinelt, and Stewart 2005.

63

concerns its „representativeness‟. This need for „authentic‟ participation means the
possibility of expressing consent for or dissent against proposed policies and being able
to influence the policy development phase. In the realm of design review, this concerns
acceptable participation in the goal setting and guidelines promulgation process.
Output legitimacy measures the social desirability of policy outcomes. This
principal of effectiveness in the realm of urban design review can be conceived of as the
capacity to effectively insure applicants produce building solutions that embody the goals
described in the guiding documents. Throughput legitimacy is defined as acceptable
norms of the decision-making process. This is predicated on the idea that the social
environment has to understand how measures are taken, and who is responsible for them.
In the realm of urban design review, this means understanding how development
proposals are judged and with what rationale.
As I hope has become clear, the framework of pragmatic, regulative, and
normative forms of legitimation can be fruitfully applied to Haus and Heinelt‟s and
Scharpf‟s schema. I put this framework to bear on the understanding of the dimensions of
the design review process. As mentioned earlier, the unfortunate translation of Scharpf
and Haus and Heinelt‟s ideas into the English language as input, through-put and output
dimensions may have been too literal in terms of wording and does not do justice to their
ideas, and I hope my wording of legislative, substantive, and procedural dimensions of
the design review process is more intuitive. Simply put, I propose that the legislative,
substantive, and procedural dimensions of the design review process are subject to
pragmatic, regulative, and normative legitimacy constraints.
64

2.3.3 Pragmatic Legitimacy
In the context of SIDs and design review, it can be said that the pragmatic layer of
legitimacy is conceived of as pertaining to each township‟s residents‟ view of place
character, design review and SID involvement. As mentioned, each level of legitimacy
(pragmatic, regulative, normative) applies to the various dimensions of design review.
The ideas represented here were incorporated into the survey instrument that I will
describe in an ensuing chapter.
Legislative dimension. In terms of legislation, various stakeholders could
legitimately be involved in the drafting of design guidelines for the process to be
accountable. In the survey instrument, I elaborated on this by differentiating between the
local public, development interests, and professional consultants as the most pertinent
groups. The local public can be both local residents and local community organizations.
Both local property owners and business owners can be thought of as the legitimate
development interests. Professional groups can be either retained by the SID, or are
represented by the involvement of dedicated state agencies. SIDs usually retain
consultants in the assessment and guidelines development stages.
Substantive dimension. In the substantive dimension, three important goals can
determine the SIDs‟ concurrency with the popular vision of place. Using Bohl‟s (2004)
civic place, place identity, and marketplace constructs of place affordance as a reference
point, I refine the substantive/ output agenda to include striving for a civic environment,
enhancing a community‟s character, and business development as possible goals. The
goal of a civic place is about striving for an environment conducive to civic interaction.
65

The civic nature of place can be advanced by prioritizing such uses as public
congregation, or on a planned basis by planning for events and commemorations
14
.
The idea of the goal of place character includes planning for a setting that
reinforces the symbolism and significance of place either by striving for distinction in
character or cultural significance. The idea of a commercial vision of place includes
planning for economic development. The character of place can be emphasized by
highlighting its historical, ethnic, religious, or social significance. Small business, retail,
office, and hospitality establishment promotion are all forms of commercial development.
Procedural dimension. The procedural dimension can be elaborated on through
popular, bureaucratic, and professional control over the review process in the assessment
of due process. The notion of popular control is subdivided to general community support
or the more radical idea of giving a review hearing‟s attendees‟ the rights to a vote on a
proposal. The idea of bureaucratic control describes a more prevalent process where
reviewers revert to guidelines or to contextual cues. The idea of professional control over
the review process both acknowledges and encourages professional involvement and
deciding projects each on their own merit.

2.3.4 Regulative Legitimacy
In this section, I will touch upon some doctrines that shape the law‟s view as to
acceptable arrangements in the context of delegation and design review.

14
Bohl‟s categories of place affordance build on Canter‟s (1977) notion of social and civic functions, or
activities and meanings that places can afford their users.

66

Legislative dimension. Some of the doctrines most relevant to the criterion of
accountability are the „state action‟, „private delegations‟, and the „one person one‟ vote
doctrines. „State action‟ doctrine basically aims to parse out how we come to determine
that private entities wield a form of government power and therefore should be held to
constitutional standards. As the name of the doctrine implies, state action mostly applies
to delegations of state, and not local government powers, but the legal argument can be
applied to local government
15
. State action analysis applies to local government by
extension of the jurisprudence of „selective incorporation‟ where the protections of the
original eight amendments have been found to apply to local government
16
(Kennedy
2001).
There are several approaches that the Supreme Court has relied on to determine
when the actions of a private actor should be considered „state action‟ and thus subject to
constitutional scrutiny. Some of the tests the courts have used in state action analysis are:
If the private actor has been delegated a function that has been traditionally the exclusive
prerogative of the state; if there is a sufficiently close nexus between the state and the
challenged action; if the private actor is controlled by an agency of the state; the
pervasive intertwining of state officials in the structure of an ostensibly private entity;
whether the private entity acts as a willful participant in joint activity with the state or its

15
This is also none the least because they themselves derive their powers from the state. For a discussion
which reaffirms Dillion‟s Rule on the idea that local government are „creatures of the state‟, see Hunter v.
Pittsburgh, 207 U.S. 161 (1907).

16
Kennedy cites the following landmark cases in the development of selective incorporation: Twining v.
New Jersey, 211 U.S. 78 (1908); Palko v. Connecticut, 302 U.S. 319(1937); Adamson v. California, 322
U.S. 46 (1947).

67

agents; and whether the state has exercised coercive power or has provided such
significant encouragement, either overt or covert (Koller 2007).
Kennedy (2001) groups these approaches into three main strands: the public
function test; a finding of government „entanglement‟, and cases where there has been
specific authorization or encouragement of the actions of the private actor. Design review
is by all accounts an exercise of police power, and thus can be easily argued to be a
public function. In Marsh v. Alabama
17
, the religious coercion by a company town of
citizens on privately owned streets was found to be unconstitutional given that the
company was substituting for the state in the private management public infrastructure.
Not all delegations and privatizations of state functions have however made for a
finding of state action. The court in Flagg Bros. v Brooks
18
elaborated the test the
privatized function should be one „exclusively reserved to the state‟, and not merely
customarily performed by it. The structural weakness of the state action doctrine has
alternatively been the need to establish whether the entity in question is „public‟ or
„private‟ prior to state action analysis, which is difficult to determine in the current
complex arena of privatization (Kennedy 2001; Metzger 2003).
Metzger (2003) argues that the doctrine of „private delegation‟ is better suited to
the task in the contemporary period. Metzger states that private delegation doctrine is
superior because “rather than asking whether ostensibly private actors should be
considered public for constitutional purposes, it accepts their private status and instead

17
326 U.S.496 (1946).

18
436 U.S. 149 (1978).

68

asks whether the constitution prohibits government from delegating certain powers to
private actors” (ibid, 1437). In Currin v. Wallace
19
and Sunshine Anthracate Coal C. v.
Adkins
20
the court elaborated the now famous test that private delegations are
constitutional if they do not involve the delegation of legislative powers, but only
administrative powers. Metzger argues that this test though is all but overlooked in
practice as the courts have been satisfied simply with government ratifications of
delegation agreements and have not delved deeply to see whether the arrangements pose
any constitutional difficulties.
Metzger continues by asserting that “one central requirement, derived from the
definition of constitutional accountability, is that a mechanism must exist by which
individuals can enforce constitutional constraints on government power, ultimately in
court, even if they cannot assert constitutional rights directly against private delegates”
(Metzger 2003, 1470). A doctrine of private delegation in this regard would focus on
mechanisms of accountability.
The most obvious solution here would be direct government supervision, which
must be structured as a complaint or appeals system at the least. The other option is for
the government to stipulate that delegates adhere to substantive and procedural
requirements that represent adequate surrogates for constitutional protections. One issue
to be considered here is that the uneven application of regulatory authority might result in

19
306 U.S. 1 (1939).

20
310 U.S. 381, 393-401 (1940).

69

granting different constituents varying degrees of protection, which is a hallmark of
favoritism (Horwitz 1986; Liebmann 1997).
In practice, one way to get around the constrictions of the doctrine of non-
delegation is in the case of the special district where the „one person, one vote‟
constitutional requirement of government accountability is suspended. As Briffault
(1999, 378) succinctly states, “one person one vote is the legal system's way of asking
whether BIDs are accountable to democratic control”. In his observations of court rulings
and the special case of school districts, Briffault also notes that “one person, one vote is
required where elected local governments have power to govern, to make policy, mandate
payments, and coerce compliance, and can act outside the close control of a higher-level
democratic government” (ibid, 444).
From the cases in Avry v. Midland County
21
, Salyer Land Co. v. Tulare Lake
Basin Water Storage District
22
, and Ball v. James
23
, the courts have determined that the
exemption is in effect when a local government serves a „special limited purpose‟, and it
„disproportionately‟ affects those who are enfranchised. Special limited purpose means
that the district was created for and engages in the delivery of a predetermined service.
The prong of disproportionate effect means that the workings of the special district affect
only those who pay assessments for the services enjoyed.

21
390 U.S. 474 (1968).

22
410 U.S. 719, 745 (1973).

23
451 U.S. 355 (1981).

70

Substantive dimension. It is clear that from a regulative/ legal perspective there
would be less to say about the substantive goals of a design review process, given that
these vary from context to context. Yet one can still make reference to some general
rules that can be brought be bear on the issue. „Brennan‟s rule‟ is a reference to the test in
the opinion issued by Justice Brennan in Metromedia Inc Vs. City of San Diego
24
. It has
come to be regarded as an important test to ascertain whether any locality‟s design review
process is legitimate or not in general. In that ruling, Justice Brennan opined that a court
should approve design control only if a city shows „comprehensive commitment to
community attractiveness‟ (Lefcoe 1974). For example when cities extend design review
to a wide variety of areas (geographical comprehensiveness) and to a wide variety of
media (e.g. buildings, billboards), Brennan‟s rule is satisfied.
Obviously another important legal constraint on the substantive content on design
review is the upholding of First Amendment rights of freedoms of expression. In all of
the design review cases mentioned above, the courts had grappled with how to balance
these rights against the duty of government to protect the general welfare of communities.
According to Williams (1977), an important consideration is the degree to which
aesthetic regulation uphold or curtail an individual‟s First Amendment rights to free
speech. As an artistic expression, architecture merits First Amendment protections.
Williams elaborates on many issues that should be considered when one asks the
question whether government has a legitimate interest in regulation as it pertains to the
freedom of expression. For one, the courts have indicated early on starting with

24
453 U.S. 490, (1981).

71

Terminiello vs. City of Chicago
25
that the general dislike for a specific architectural
expression by a majority of the population is not in itself sufficient grounds for
regulation. In Young vs. American Mini Theatres, Inc
26
, the courts have however found
that when this dislike causes injury to unsuspecting third parties, then regulation is more
likely to be deemed warranted. In this sense, if a modernist house in a turn of the century
neighborhood causes realtors to refrain from promoting the area to prospective buyers,
causing values to plummet area-wide, then regulation to protect the predominant
neighborhood aesthetic is more warranted.
Another way to look at the issue is whether the message subject to prohibition can
be considered specific or general, with the former raising more issues. For example, if an
ordinance prohibited a specific modernist style in an area with no specific style, First
Amendment issues would arise in a manner they would probably not if the ordinance
required new construction to be compatible with an existing style. Even less issues arise
in the regulation aimed to enhance the expression even it came at the expense of
suppressing some expression. If for example a locality encouraged stylistic purity in all
neighborhoods, rather than imposing one area‟s style on the others, the ordinance is more
likely to survive a First Amendment challenge (ibid). In all cases, it is important to
consider the balance between the impact of the act of expression on the „captive
audience‟ of neighboring properties and the impact of the prohibition of the expressive
act.

25
337 U.S. 1 (1949).

26
427 U.S. 50 (1976).

72

Procedural dimension. Of course the principles outlined above concerning the
legality of delegations do involve safeguards on procedural due process as well as
accountability in decision making. That the doctrine of the non-delegation of legislative
powers outlined above that allows the delegation of administrative functions does not
imply that safeguards against the arbitrary use of these powers should not be instated. In
Giacco vs. Pennsylvania
27
the court reiterated the need for standards to guide discretion
for administrative agencies. In the domain of design review, the judicial record has been
mixed, with later cases affirming the principals in Giacco. In Ried v. Architectural Board
of Review of the City of Cleveland Heights
28
and State ex. Rel. Stoyanoff v. Berkeley
29

„unfettered discretion‟ was upheld (Tseng-ya Lai 1994), while later on in Pacesetter
Homes Inc. v. Village of Olympia Fields
30
the courts ruled a review process was
unconstitutional on the grounds of „vagueness‟.
The „void for vagueness‟ doctrine is an elaboration on the due process clause, and
simply refers to the lack of clarity or certainty in the language of regulation. Its intent is
to limit the arbitrary enforcement of the law. The legal test formulated in the majority
opinion in Connally vs. General Construction Co.
31
and reaffirmed in Broadrick v.

27
382 U.S. 399 (1966).

28
192 N.E. 74, Ohio App. 81 (1963).

29
458 S.W. 2d 305, Mo. 306-7 (1970).

30
104 Ill. App. 2d 218 (1st Dist. 1968).

31
269 U.S. 385 (1926).

73

Oklahoma
32
states that an ordinance is unconstitutionally vague if men of „common
intelligence‟ must necessarily guess at its meaning.
The caveat, on the other end, is that the ordinance should not be too prescriptive.
Prescriptive ordinances have also often been found by the courts to violate First
Amendment rights of the developers (Ellickson and Bean 2000). Diller and Fischer
Company Inc vs. Architectural Review Board of Borough of Stone Harbor
33
brought this
standard to bear on design review. The court in Morristown Road Associates vs. Mayor
and Common Council and the Planning Board of the Borough of Bernardsville
34
also
cautioned against standards that invited arbitrary determination and unbridled discretion
on the part of the reviewing agency (Lai 1998).
Design regulation in New Jersey: legal perspectives. Prior to the passage of the
SID enabling legislation, the ability of local agencies in New Jersey to impose design
controls was regulated by two fundamental statutes — the Municipal Land Use Law
35

(henceforth MLUL), the state's enabling planning statute , and the Local Redevelopment
and Housing Law
36
(henceforth LRHL), which governs the process through which cities
can assemble sites for redevelopment pursuant to a determination of blight.

32
413 U.S. 601 (1973).

33
587 A. 2
nd
674 N.J. (1970).

34
394 A 2d. 157 (1978).

35
N.J. Stat. Ann. § 40:55D-1 et seq.

36
N.J. Stat. Ann. § 40A:12A-1 et seq.

74

One of the purposes of the MLUL is to "promote a desirable visual environment
and … good civic design and arrangements" (N.J. Stat. Ann. § 40:55 D-2i). The MLUL
also allows municipalities to regulate or guide the way buildings and developments look.
The MLUL grants wide powers to municipalities to control design, although it does not
call it design. Design review — the process of comparing a proposed design against a
stated set of criteria — is one of the functions of the municipal planning board, under
subdivision and site plan review (N.J. Stat. Ann. § 40:55 D-37). If a municipality has
design controls high on its planning agenda, it usually relegates the task to an advisory
agency which makes recommendations to the planning board. This board is more often
than not called a design review committee, and its recommendations become the basis of
a design suitability determination.
Section 40:55D-62 of MLUL specifically states that „design‟ is a major criterion
of new development over which the planning board can exercise regulatory authority.
The courts have ruled that the „Purposes‟ section of the MLUL does not by itself
constitute sufficient basis for a municipality to approve or deny development
applications. In Pizzo Mantin Group v. Twp of Randolph
37
, the courts ruled that
municipalities are required to give body and substance to those purposes through
municipal ordinances that provide clear standards to guide both property owners and
planning boards.
Thus if MLUL allows the authority to regulate design through the site plan review
process, it is a qualified and limited right that must be grounded in the provision of the

37
137 N.J. 216, 222, 224 (1994).

75

Master Plan to prevent regulation that is arbitrary or capricious, it was revealed to me by
Mr. Carols Rodriguez, New Jersey director at the Regional Plan Association in a personal
communication.
Even after Pizzo, not many local governments proceeded to set up design review
boards, in part because of the many uncertainties around legal liability predicated on the
„vagueness‟ doctrine. If cities do take advantage, the municipal master plan, the zoning
ordinance and the land development regulations must be explicit as to what type of
community design the municipality is pursuing, and this must be reasonable and
justifiable.
When a municipality has attempted to impose design standards that were deemed
by the courts as vague and indefinite, they have been struck down, as the Morristown
Road case shows. Other reasons include the aversion to „overreaching government‟, the
lack of interest by townships not endowed with a unique physical stock, and in the
attitudes of a conservative polity wary of litigation, added Mr. Rodriguez.
There is another route to design review. If a determination of blight can be made,
LRHL provide municipalities with a much greater level of control than the MLUL over
physical planning and design, including the ability to implement community design plans
and design guidelines. The scope and applicability of the redevelopment statutes in New
Jersey have been broadened beyond the traditional dilapidated or blighted conditions to
include areas with what can best be termed as suffering from „visual blight‟ such as
"faulty arrangement or design ... or deleterious land use or obsolete layout” (N.J. Stat.
Ann. §40A:12A). Since a determination of blight is a time and resource consuming
76

judicial process though, design control through LRHL remains limited in application, Mr.
Rodriguez also pointed out.
The New Jersey courts have upheld the reasonable application of aesthetic
considerations to land use cases. In United Advertising Corp v Metuchen
38
the court
identified aesthetics as a relevant zoning consideration. In Zilinsky v. Zoning Board of
Adjustment of Verona
39
, case concerning a municipal ordinance requiring the provision of
parking garages, the courts held the invalidation of aesthetic considerations should
happen only when their application „conflicts with a preeminent purpose of zoning‟.
In Manalapan Realty v. Township Committee
40
the court found that, pursuant to N.J. Stat.
Ann.§ 40:55D-2i, a municipality "also may prohibit a specific type of business operation
based on aesthetic considerations", in that case stores selling lumber or building materials
or which sell or display materials outside the premises.
The prohibition of signs in residential areas on aesthetic grounds has been upheld
in United Property Owners v. Belmar
41
. The preservation of small town character has
also been upheld as a valid zoning consideration in Eastampton Center v. Township of
Eastampton
42
. In State v. Miller
43
it was found that the power to zone based on aesthetics

38
42 N.J. 1, 6 (1964).

39
105 N.J. 363, 368-369 (1987).

40
272 N.J. Super 1, 9 App Div (1994).

41
343 N.J. Super, 62-3 (App Div), cert den 170 NJ 390 (2001).

42
155 F Supp. 2d 102, 119 D N.J. (2001).

43
83 N.J. 402, 416 A.2d 821 (1980).

77

was not limitless. In Damurjian v. Board of Adjustment
44
, the courts have also indicated
that municipalities may regulate aesthetics only „with reasonable precision and without
blanket delegation‟, echoing the „vagueness‟ doctrine. In conclusion, regulating aesthetic
has been deemed legal, as long as guidance is reasonable, firmly grounded and clearly
explicit.

2.3.5 Normative Legitimacy
The following describes some normative perspectives elaborated to deal with
regulatory, land use, and design review delegation that probe the issues of accountability,
equal protection, and due process, respectively.
Legislative dimension. Consideration of the normative criterion of accountability
raises the important questions as to the stakeholders a design review agency need be
accountable to. In his analysis of BIDs, Hochleutner (2003) has neatly summarized that
accountability need be to business owners, local residents, and city residents in order of
the degree of accountability. From this analysis we can abstract the principal Hochleutner
invokes, which is that accountability to stakeholders is ultimately proportional to the
degree that they are likely to be impacted by the activities of the organization.
For Hochleutner, the argument about accountability as it pertains to BIDs is that it
makes little sense for BIDs to adopt resident-based voting as is required of general
government. Accountability to business owners is prioritized because as stakeholders
they are burdened by regulations and assessments to the degree that they also benefit

44
299 N.J. Super 84, 97 App Div (1997).

78

from BID activity. Local residents on the other hand do benefit from BID activity but
suffer little burden. For city residents, the burdens are even less. All the same,
Hoescheller is not very worried about BIDs‟ accountability deficit. Since he remarks that
BIDs have a limited grant of authority, discretion is constrained and ex poste
accountability is not really that critical.
All the same as well, the accountability of SIDs to city residents in practice is
more substantial than what the theoretical analysis outlined above entails. Residents can
attend hearings and are sought out by BIDs in outreach efforts in the initial stages of the
incorporation process. Later on, city approval is necessary for formation, and the city
usually is awarded representation on the board. Ultimately it is up to the city to suspend
the activities of a BID if it finds that it veered away from its mandate in a serious enough
manner (ibid).
Baab and DeSelm‟s (1990) study of private design review is also a perspective on
the issue of accountability as it pertains specifically to design review. The authors make a
theoretical argument for private design review as practiced in private developments as a
complimentary to public design review, which they argue should be limited in purview.
They defend private design review for the following reasons. First, they claim that a local
board will have a more intimate, first-hand knowledge of the local socio- physical
environment. Secondly, it is more cognizant or supportive of local community values.
Thirdly, the claim is made that the local residents that staff private design boards are
more vested in the results of their decisions than a city appointed board. Fourthly, private
design review empowers residents to take responsibility for their neighborhood. This
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allows for the nurturing of social capital, local constitutional experimentation, and, most
importantly, real decentralization and neighborhood self-determination.
Robert Nelson, a stalwart supporter of CIDs and BIDs, has advanced a more
theoretically rigorous argument (Nelson 1999) that merges some perspectives from
Hochleutner and Baab and De Selm. Similarly to Baab and De Selm, Nelson has in mind
residential neighborhoods and not business districts. Nelson contends that the experiment
with CIDs in suburban, newly built subdivisions should be implemented in existing
neighborhoods in the inner city. Echoing Hochleutner, Nelson here introduces another
normative criterion for accountability, namely the idea of the „captive party‟.
In situations where there is captivity (e.g. it is not easy for the interested party to
move when there is a conflict of interest), then accountability is more pressing. For
example, although store owners in a mall might be more inclined to accept a mall
operator‟s control over environmental branding, it is less likely that homeowners in a
CID would grant a homeowners‟ association unfettered discretion in deciding on design
matters.
Nelson proposes other political and economic rationales for HA control over
design matters. Nelson contends that there is no justification for broad municipal
involvement in urban design regulations pertaining to specific neighborhoods. This
position is an elaboration on one other critique of zoning, namely that it had tended to
serve the interests of the most powerful elements in municipal government. CID

80

controlled land regulation is seen to be more democratic in the respect that it is
accountable to local residents.
The framework of the analysis of regulation developed by Ronald Coase has
found enthusiastic application in the study of zoning. In Coasian analysis, regulation is
warranted when transactions costs make the settlement of land use disputes impossible
through market processes in practice. Nelson accedes to this school of thought, and
argues the legal prohibition on the sale of zoning rights by municipal governments has
impeded the introduction of socially desirable uses. The privatization of zoning would
sidestep many of these constraints on public zoning, granting the community a greater
measure of control over local land use and in the process encouraging resident
participation in the political process.
Substantive dimension. Of course from a normative perspective it is not possible
to outline criteria that should guide communities towards particular character visions
except to say that these visions have to represent the local attitudes and aspirations. In the
earlier discussion on design review I have illustrated accounts of how design review can
be used as a means to enforce a majority‟s cultural preferences. Design review has
however not always lived up to the task. It has sometimes been used to manipulate the
right to expression in architectural design (Scheer 1990; Carmona 1998a). This is
achieved even sometimes strategically by using the review process to manipulate the
interpretation of the guidelines (Hack 1994).
Nelson asserts that “the municipal administration of public zoning allows many
people who are not neighborhood residents to participate in neighborhood decision
81

making” (Nelson 2005, 268). He has also argued that true representation can only be
achieved through the devolution and privatization of land use decisions. As mentioned
earlier, Nelson makes an argument against zoning which he characterizes as an
antiquated form of regulatory control outdated by a more flexible and comprehensive
approach through private covenants administered by neighborhood associations
45
.
For Nelson and to Gillette (1994) as well, private regulation is superior to public
regulation because it allows neighborhoods to develop local conceptions of what counts
as an externality (e.g. a two story house in one neighborhood, an ostentatious house in
another). Through private regulation, neighborhoods would have the capacity to enforce
regulations on these externalities unimpeded by a court system that seeks to „normalize
values‟. The argument recalls another by Briffault (1997) who argues that heterogeneity
makes is less likely that cities are capable of accommodating diversity in dispensing with
regulation. Hence one normative consideration for design review is the extent to which it
reflects the diversity in a particular community.
Of course the argument for privatization is an extreme interpretation of the
argument for devolution. Many communities around the country feature devolved
planning systems where neighborhoods actively participate in guidelines promulgation or
administration or both. By sidestepping devolved zoning in his championing of privatized
land use management, Nelson is mainly interested in a feature of the latter alluded to
earlier, namely the capacity to sell zoning rights unimpeded by legal and ethical

45
Covenants also allow for „more complete control‟, filling in the blanks where zoning fall short, such as
architectural quality, which are of utmost importance to the quality of a neighborhood.

82

constraints. From a perspective of substantive normative legitimacy, hence another
consideration championed by the proponents of this market approach is the need for the
regulatory mechanisms to allow a community to evolve its guidelines to meet its evolving
perceptions of itself as a place.
Procedural dimension. In his study of the privatization of child care regulation in
New Jersey, Gromley (1996) offers the following insights into why the privatization of
regulation has lagged behind other forms of privatization, and also offers criteria for
assessing the privatization of regulation on due process grounds. Gromley argues that
governments have approached regulatory privatization with caution for the following
reasons: lawsuits from which the government is not immune, a possible loss of
efficiency, and, interestingly, the threat of capture.
Since privatization involves the imposition of costs, it is important to perceive the
regulator as a legitimate agent of the state, which often complicates plans for
privatization. Gromley also argues for the following criterion in judging regulatory
privatizations: Whether they achieve worthwhile goals (efficiency, effectiveness) without
compromising other goals (equity, accountability). More importantly, an important
criterion is whether privatization makes for a situation where the delegates are coercive
of private citizens and undermining of their due process rights. As Gromley has
witnessed from his field, it is too often that this coercion undermines regulation by
raising doubts about the legitimate agency of the delegate.
In conclusion, the main consideration from the normative analysis of the
legislative dimension of design review is that one need differentiate between accountable
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and non-accountable mechanisms, and that private mechanisms such as in this case might
be normatively justifiable if they are accountable. An important normative consideration
is the determination of the population to which the process need be accountable.
In Hochleutner‟s, Baab and De Selm‟s, and Nelson‟s analysis, accountability that
is limited to neighborhood residents seems to suffice. As I will argue later, though this
logic might suffice for outlying residential areas, decisions on design in downtown areas
do not only affect the immediate residents, but the locality‟s residents as a whole. This is
due to the formative role downtowns have in determining a locality‟s character.
On the subject of substantive issues, one can raise questions about Nelson and
Gillette‟s assertions about traditional development control constituting an intrusion unto a
local community‟s value system. It can be argued that the goals of design review should
not only be concerned with the issue of the normalization of values but making sure that
the needs of all are groups equally addressed and represented.
The analysis of process alerts us to the importance of the consideration of due
process as a criterion of paramount importance. Some commentators such as Haus and
Heinelt have also highlighted the importance of transparency. One can make an argument
though that the criterion of transparency can be subsumed under that of due process, as
transparency is an important component of a process that can be said to be fair and not
arbitrary.
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Chapter 3. Conceptual Framework and Research Design
In this chapter, I describe four sets of questions that form the basis of this inquiry.
I then synthesize ideas developed in the previous chapter to propose a conceptual
framework of political imperatives and social constraints on design review in its three
dimensions. In the next section, I outline the quasi-experimental case study research
design, the triangulated methodology involving interviews, archival material, a survey,
and the survey design.

3.1 Conceptual Framework
3.1.1 Questions and Hypotheses
In probing the issue of the innovation of SID-administered design review, I ask
the following questions in an increasing order of generalization:
1. Why did the state legislature empower SIDs to administer design review when
it passed into law the SID enabling act? Why did some municipalities lend their
authorities to SIDs while others did not? These questions aim to parse the general state-
wide context of the investigation, whether in terms of the intentions behind the statute or
its reception. In probing this question, one hypothesis is that given the gravity of the
conditions in the state‟s urban cores, the legislature wished to equip cities with as many
policy tools as possible to address the root causes of decline.
The counter hypothesis is that the enabling legislation bore the signature of
special interests who were interested in controlling development policy downtown. As to
the second question, one hypothesis is that large cities with a record of failed
85

interventions in revitalization would be drawn to the program. These questions are the
subject of Chapters Four and Eight.
2. From an application to the case studies, how can an analysis of political
imperatives and legitimacy constraints help us understand how the different review
processes took the shape that they did? From the literature review I highlighted some
rationales for regulation, delegation, and agency, which I grouped into the categories of
instrumental and strategic intent. Delegation on the part of the city could be intended as a
measure to shift responsibility or blame. SIDs may also seek delegation to assert greater
control over place-character. The counter hypotheses is that townships delegate either
because of a recognition of the importance of design in economic regeneration and the
lack of expertise in thereof, or alternatively the lack of funds to administer a thorough
review process.
The question is also whether SID review processes are considerate of
legitimation constraints. It is expected that although review processes are mindful of
pragmatic considerations, less consideration is expected have been devoted to regulative
and normative issues beyond the requirements of the enabling legislation.
Another point is the understanding of the divergences, if any, between the
experiences of urban and suburban SIDs. Suburban SIDs might be more interested in
place-making as tool of maintaining the social status of a community. This is especially
important as New Jersey‟s urban centers continue to struggle, and as its suburban rings
brace against the continuing deterioration of the urban cores and accelerating
demographic change. This issue is the subject of Chapters Five and Seven.
86

3. In the light of the analysis applying the analytical framework, what issues can
be formulated from the attention to the practical record that could be of relevance as
SID-administered design review increases in application? Do the processes structured
by imperatives and by bound by constraints allow for a measure of discretion? If so, what
the consequences of this discretion? One hypothesis is that designing processes with a
measure of discretion is a strategic decision on the part of the locality to extend its control
over the built environment.
Discretion could also unavoidable in terms of an instrumental calculus, or may
emanate from desire of interest groups to capture the regulatory process. Any evidence
that points to avenues that may allow these strategic motives to effectuated need be
highlighted given the real possibility of an ensuing surge in interest in SID-administered
design review. This issue is the subject of Chapter Six.
4. What are the general implications to democratic society of innovations in
urban governance such as public-private regulation in the urban core? SID-administered
design review is another example of how self-regulating associations are becoming more
and more integral to how we go about administering urban affairs and government in
general. The implications for this trend are discussed given the findings from the analysis
of the accountability of SID-administered design review and policy suggestions are made.
The hypothesis is that as this trend is bound to accelerate, this necessitates that safeguards
be instituted. The conclusions will be presented in Chapter Eight.

87

3.1.2 The General, Elaborated, and Detailed Frameworks
To elaborate on these questions, I develop in this study a framework to describe
organizational form in design review, and apply this framework to the assessment of the
particular case of private design review administered by SIDs. Again to reiterate, design
review in this framework is shaped by the interplay of political imperatives and
legitimacy/ social constraints (Figure 3.1).

Figure 3.1 General Framework of Design Review

Source: Author

In general, any design review process can either be characterized by high or low
discretion. Discretion though has multiple dimensions as I argued. In the elaborated
model, I make an argument that we can understand organizational form in general and
discretion in particular by analyzing design review in its legislative, substantive and
procedural dimensions. Huber and Shipan (2002), whose work partially informs this

Political
Imperatives

Design Review

Social
Legitimacy
88

framework as mentioned earlier, fault other scholars such as Epstein and O‟Halloran
(1999) for focusing on one aspect of discretion which is procedural (through-put)
independence. They stress that another aspect of discretion which they refer to as policy
precision (which I term the substantive/ output dimension) is also as important if not
more to the successful accounting of the nature of discretion.
From the discussion in the previous chapter and incorporating Scharpf‟s and Haus
and Heinelt‟s analysis of the essential dimensions of urban governance, to these two
dimensions I proposed to incorporate what I label the legislative/ input dimension of
discretion, or the legislative autonomy of the agency. The politics of regulation,
delegation, and agency all influence the legislative, procedural and substantive
dimensions of discretion in design review to varying degrees. Also drawing from the
previous section, we can hypothesize that the resultant review process is legitimated to
the degree it meets pragmatic, regulative, and normative constraints (Figure 3.2).
In the analysis from the previous sections I made the claim that a large part of the
literature has dealt with design review from an instrumental perspective. In explaining
structural choice, this perspective explains away objectives as the „best‟ alternative to
meet the goals of design review. The literature also features a discussion of politics and
strategy, though this discussion has not been explicitly linked to an analysis of
organizational characteristics.

89

Figure 3.2 Elaborated Framework of Design Review

Source: Author

In the framework I propose, functional concerns do exert an influence, but
strategic imperatives also need to be accounted for. The process can also be assessed to
the degree it satisfies various local visions for place, participation, and administration;
legal requirements such as comprehensiveness, freedom of expression, clarity, separation
of powers, and accountability; and the normative goals such as accountability,
representativeness, and due process (Figure 3.3).
The legislative, substantive, and procedural dimensions that constitute a design
review process can take a variety of organizational forms. Legislatively and in terms of
input on the public-private continuum, the design review agency can be a planning board
or a design review committee with no policy promulgation authority, or a redevelopment
authority or as in the special case of this study, a special improvement district with such
authority. Again the identity of the party responsible for input is important because the

Design Review
Legislative
dimension
Procedural
dimension
Substantive
dimension

Regulation
Delegation
Agency
Pragmatic
Regulative
Normative
Political Imperatives Social Legitimacy
90

authority can assume either consultative or decision making tasks, or both. Consultative
tasks can include input in writing the design guidelines and helping applicants adhere to
them. Decision-making tasks can include crafting the guidelines, for example.
Procedural control can take many of the forms discussed in the principal agent
literature (see for example works by McCubbins, Noll, Weingast (1989) and Kiewiet and
McCubbins (1991)). One general classification of approaches has been to differentiate
between ex ante strategies that induce the agent to self impose limits on opportunistic
behavior, and ex poste strategies involving active monitoring of her actions. Solutions for
procedural control can take the many forms such as monitoring, oversight by
specification of administrative procedure, reporting requirements, and appeals processes
etc.
1

From my analysis of the literature, I develop a classification of approaches to the
substantive dimension predicated on four approaches: theme-based (general character
descriptions), character-based (general physical qualities), form-based (typological) and
style-based (stylistic) approaches, which vary from high to low discretion in terms of
policy specificity.

1
The literature offers different perspectives as to why one approach or another is preferred. Miller and
Whitford (2007) for example state that incentives or monitoring are preferred according the relative cost of
each.

91

Figure 3.3 Detailed Framework of Design Review

Substantive
dimension

Theme

Character

Form

Style

Regulation

Curbing

offenders

Bargaining

Capture

Limiting

opportunism

Legislative

dimension

C onsultative -

decision making

P rivate - public

Procedural
dimension

O versight
P rocedural

rules
D ecision checks
A ppeals

Delegation

Expertise

Flexibility

Opportunity

costs

Shifting

responsibility

Agency

Divergence

of
interests

Familiarity

with
preferences

Checking

other
principals

Constituent

interest

Pragmatic

A greement on
participation
( residents , civil
society, business
interests )

Regulative

State action
Non-delegation
One person one vote

Normative

A ccountability

Pragmatic

A greement on

vision

( civic , cultural ,
commercial )

Regulative

C omprehensiveness

F i rs t Amendment

Normative

E qual protection

Pragmatic

A greement on
administration
( residents ,

bureaucrats )

Regulative

Private Delegations

Vagueness

Normative

D ue process

L

E

G

I

T

I

M

A

C

Y

R

E

V

I

E

W

I

M

P

E

R

A

T

I

V

E

Instrumental

Strategic

Source: Author
92

Theme or narrative-based guidelines usually build on a particular understanding
of the qualities of the area under consideration. This can be a statement about preserving
a locality‟s „small scale charm‟ or the creation of a „vibrant commercial hub„, often
illustrated with precedents and supplemented with policy recommendations that are open
to interpretation. These codes typically allow the review authority a large margin of
discretion and applicants a large margin of freedom of expression or innovation.
In character-based guidelines the main concern is predictably with a general
perception of scale, function, rhythm and like considerations. Guidelines derive from a
particular vision that has more defined symbolic and material prescriptions and
precedents, and is more demanding of a particular proposal in terms of the materialization
of that vision. Typically this translates into a lower margin of freedom in design.
In a typology-based or a form-based code, the concern is often to abstract from
the historical development of a locality an idealized urban fabric such as „urban villages‟,
„mixed use neighborhoods‟ or „lakefront developments‟ into a set of principles for growth
and their implementation in building form, street frontage and scale. The recent interest
in New-Urbanist inspired codes has generated much support for this approach
2
. Though
this approach is heavy-handed on the incorporation of specific building features, it leaves
to the designer the flexibility in innovative approaches as to how these features can be
synthesized.
Finally, style-based guidelines is an approach that is more prevalent in the U.S. in

2
In form-based codes we see an attempt to control design through „building types‟ derived from the idea of
a morphology that is predicated on a typology (Walters 2007).

93

historic districts, planned unit developments, and smaller more affluent localities, often
prescribing adherence to specific epochal architecture such as „Spanish Revival‟ or
„Southern Colonial‟. „Pattern Books‟ popular in restrictive covenants of CIDs are another
form of style-based guidelines that also trade freedom for predictability. It is clear here
that the margins for expression are the most constrained. Design review here also
becomes a less deliberative process given the constraining nature of the guidelines.

3.2 Quasi-experimental Research Design
3.2.1 Case Study Approach
I will pursue the questions outlined previously through a quasi-experimental
multiple case-study research design. As is the case in most similar research on urban
issues, the quasi-experimental design is appropriate for studies where conditions could
not be manipulated for experimental purposes (Cook and Campbel 1979). Yin (1989)
postulates that case studies are useful when the object of study is a phenomenon, policy,
organization, etc. and not a large sample such as a population. In this case, the case study
approach helps to elucidate dynamics and causal relationships (Yin 1989; Kiser and
Hechter 1991).
The findings from the application of the theoretical framework of political
imperatives and legitimacy constraints to SID involvement in design regulation is thus
generalizable to a theoretical proposition that speaks to the conditions under which cities
delegate to SIDs and decide on one design review process over another. Case studies are
also suitable when the researcher is interested in working with multiple units of analysis
94

simultaneously (King, Keohane, and Verba 1994). This is adequate since the study is
focused on both the SID and resident perspectives. Case studies are also particularly
employed when the understanding the object of study requires some analysis of
contextual factors
3
(Creswell 1994).
In the process of narrowing down the population of New Jersey SIDs to those
administering a design review program, the following steps were taken. I contacted the
New Jersey Department of Community Affairs which furnished me with a list of current
active SIDs in the state. I cross-checked the list against another I obtained from
Downtown New Jersey Inc., a non-profit agency represented local mayors, BID directors,
and business groups, and yet another obtained from Seth Grossman, the director of the
Newark Ironbound SID and director of a certificate program in SID management at
Rutgers-Newark. The cross-checked list yielded 60 SIDs active in the state as of May
2008 (Appendix 1). These 60 SIDs formed the sample of SIDs with possible involvement
in physical improvements.
I checked the websites of all SIDs which had web presence to ascertain which
were involved in the regulation of physical design. I was able to ascertain that eight SIDs
administered a design review program (Bayonne Town Center, Maplewood Village
Alliance, Springfield Avenue Partnership, Cranford Downtown Management
Corporation, Intown Livingston, Rutherford Downtown Partnership, Millburn Downtown
Alliance, and the Atlantic City Special Improvement District).

3
A multiple case study design also allows for a „replication‟ logic to be used to ascertain the validity of
rival theories (Miles and Huberman 1994).

95

Of the eight SIDs, only Atlantic City was not geographically located in the
northern part of the state. Of the remaining seven, only the Bayonne Town Center was
located in a city that could be considered „urban‟ in the sense that it did not develop as a
commuter suburb and whose economic base featured a diversity of sectors including
industry. The eight SIDs with a design regulation program formed the sample of SIDs
whose design guidelines could form material for the comparative guidelines analysis.
In selecting the list of candidate case studies from the population of SIDs with a
design regulation program, I strove to create a list that provided some diversity along
three criteria. I then proceeded to select two case studies. Given the geographical and
historical specificities of urbanization on the northern part of the state around New York
City, and the southern part around Philadelphia, I decided to focus the study on SIDs in
Northern New Jersey. This resulted in the elimination of the Atlantic City SID from
contention.
To test the robustness of the analytical framework and its application to multiple
contexts, it made sense to choose two SIDs, one in an relatively „urban‟ and one
relatively „suburban‟ community. As the only „urban‟ SID, the Bayonne Town Center
was an obvious choice. Of the other 6 „suburban‟ SIDs in the northern part of the state, I
was initially interested in both Rutherford and Maplewood because of their proximity to
the urban centers of Newark and Elizabeth. I settled on Maplewood after it seemed that it
was more likely that I would insure the cooperation of the Maplewood Village Alliance.

96

3.2.2 Notes on Threats to Validity
The threats to validity that this study faces are typical of those generally to be
considered in case study designs (Shadish et al 2002). The fact that the ring suburbs of
Newark-Elizabeth are comparable in terms of income and size should answer to some
extent the internal validity threat of selection bias. Caution should also be exercised in
hypothesizing a too rigid causal relationship between SID-administration of design
review and policy agendas due to history and maturation effects. In most instances of the
delegation of the development of design guidelines and review powers, these powers
were not delegated until after the SID was operational for some years. This conceivably
may reflect an initial, but not yet final appreciation of how these powers are
systematically exercised as SIDs become more comfortable with their application.
Attention to the construct validity threat of the inadequate explication of
constructs should also be kept in mind. The assumption that for example that the
distinction between urban and suburban SIDs exists and captures whether the design
review process exhibit the influence of distinct imperatives and constraints should be
reassessed in the analysis to determine whether the constructs are useful. It may also be
that different mediating variables might more usefully explain the variance, such as
whether an SID is incorporated as a non-profit or is a government agency.
For example SIDs incorporated as non-profits could be more prone to the
influence of business interests, while municipal SIDs could be the vehicle of choice for a
community initiated incorporation. Finally, the threats of external validity may arise from
the fact that this is yet a limited experiment mostly confined to the north of the state. The
97

extents to which self selection becomes an issue for theoretical generalization should
therefore also be kept in mind.

3.3 Methodology
To synthesize the findings, the general methodological approach involved the
application of methodological triangulation (Berg 1989). Triangulation involves a
researcher‟s use of “multiple and different sources, methods, investigators” in a process
that “involves corroborating evidence from different sources to shed light on a theme or
perspective” (Creswell 1998, 202). For this study, the three data-gathering techniques of
semi-structured interviews (Leech 2002), archival data analysis (Denizen and Lincoln
1994), and a survey instrument were utilized (Converse and Presser 1986; Neijens 1987;
Fowler 2002).
Interviews were used to collect information about the attitudes of SID operatives
since the nature of the organizations was such that a small number of people managed the
SID. Document analysis was mainly used to gather information on the SIDs‟ involvement
in design review since most of the decision making is documented in application files.
The surveys were mainly used to collect information on local residents‟ attitudes to
achieve a representative opinion on issues of pragmatic legitimacy of SID actions.
Interviews: Interview candidates were selected by a snowball process (Bogason
2000). Following (Babbie 1995), subjects were informed of the normative goals of the
research to avoid bias. In the interview process, „free recall‟ elicitation was used whereby
informants were asked to recall as much as they can without being given specific
98

guidance in order to ascertain the development of institutional narratives as relayed by
interviewees (Holstein and Gubrium 1995).
Archival data: The mining of archival data, both written and graphical, relied on
techniques of narrative analysis as adapted to the study of institutions by Czarniawska
(1997, 1998). This methodology of narrative analysis in organization studies borrows
from the established techniques of narrative analysis in anthropology and discourse
analysis (Riessman 1993; Feldman et al 2004). Institutional discourses‟ justification of
mission, objectives and goals are important sources for ascertaining the hypothesized
constraints on action and interests. Archival data mainly consisted of SID project
application files, planning board application files, newspaper accounts, and websites.
Survey: The main source of information on the attitudes of members of the local
community was a survey mailed to a random sample of local residents. To arrive at a
sample suitable for estimating both means and proportions (95% confidence interval and
to be able to estimate a proportion to within 0.1) with a projected response rate of 20%, a
sample of 1000 residents was chosen in each township. The following describes the
information sources by relevant research population.
A. Overview of SIDs and design review. For an overview, I conducted background
research on SIDs and development control in New Jersey. I also conducted interviews
with state planning officials, officials at state-wide SID interest groups, and people
involved with the promulgation of state SID laws and policy. I also contacted some SID
directors to ascertain the scope of their involvement in design review if I could not do so
99

otherwise. Secondary documents included state legislative acts, local ordinances, and
newspaper articles.
B. SIDs. Semi-structured interviews with SID staff were an important source of
information. New Jersey SIDs are relatively small organizations, with full-time staff of
no more than a few people on average. The SID president of the board, director, and
design committee were some of the people interviewed. I conducted interviews with 28
SID key personnel for this study.
C. Local residents. Since face to face interviews are time consuming, costly, and
unrepresentative, the main segment of the information on residents‟ attitudes on the
research questions was collected through a survey instrument sent to a representative
sample (1000 sent, 133 received in Maplewood, 112 in Bayonne) of each township‟s
residents. Other secondary sources tapped included published local histories and
newspaper articles.

3.4 Survey Design
3.4.1 Instrument Refinement and Pilot Survey
To probe the pragmatic legitimacy of SID operations, a survey instrument was
developed to measure the attitudes of respondents about the administration of design
review. In particular, it was aimed to measure the beliefs respondents have about the topic
(Alreck and Settle 2004). The survey instrument was designed to obtain information on
Bayonne and Maplewood residents‟ opinions on the issues of design guidelines, rationale
100

for delegation and its legitimacy as outlined in the study‟s research questions and
hypotheses.
Mail data collection was chosen because of its ease of administration. Input from
the dissertation committee on an early draft of the survey focused on the general
refinement of the questions to clearly focus on probing the legitimacy of delegation of
design review authority rather than to assess the performance of the SID in this role. On-
going involvement helped keep the instrument simple and comprehensible.
A focus group of fellow doctoral students at the School of Policy, Planning, and
Development at the University of Southern California helped me refine some of the main
survey questions in anticipation of a pilot mailing. An assessment instrument was created
for fellow doctoral students to help assess the response items proposed for the instrument.
Residents of the city of Bayonne were selected for the pilot mailing. This was
partially because I wanted to get an idea about the expected response rate in anticipation
of the mailing, and my expectation was that Bayonne would have a lower rate
considering its socio-demographic profile. The pilot survey asked respondents to rate
their opinions on twenty five statements on a five point Likert scale. A random sample of
Bayonne households was purchased from InfoUSA, a renowned vendor of marketing
data. The sampling frame used by InfoUSA comprised of all Bayonne households
residing in single family homes and apartment buildings, excluding rural addresses.
The fact that Bayonne is an urbanized city makes this omission of limited
consequence. Two hundred households were chosen using simple random sampling
procedures for the pilot mailing. Twenty six surveys were returned, for a return rate of
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13%. Though not very impressive, even for a one shot survey with no pre survey
postcards or follow up mailings, the rate indicated the projected return rate of that the
actual survey might achieve.
Another purpose of the pilot study was to measure the homogeneity of the indices
that measure various attitudes about the legislative, procedural, substantive priorities of
the SIDs
4
. The results, summarized in Table 3.1 below, show that 5 of the 9 items
performed reliably
5
. Business promotion, local professional input, and the two through-
put items did not perform reliably. Although in the final survey (Appendix 3) each input,
through-put and output dimension item was treated as a stand- alone item rather than
being and the idea of dimension indices was dropped, lessons from the pilot mailing and
further deliberation with the dissertation committee lead to some questions on being
refined.

3.4.2 Final Survey
A simple random sample (Fowler 1995) of addresses of residents of both
municipalities was again purchased from InfoUSA. Given the response rate on the pilot
and with the intent of conducting interval data analysis, the survey was mailed to 1000

4
The data from the mailing were analyzed with Cronbach‟s alpha reliability measure for each concept. The
general interpretation of Cronbach‟s alpha is that if the strength of the correlations between the scores on
the items are too low, it is likely that these are measuring different traits and therefore should not all be
included in a test that is supposed to measure one trait. On the other hand, if item correlations are too high,
it is likely that some items are redundant and should be removed from the test. This does not rule out
obtaining high alpha when there is no general factor running through the test items, so items should be
logically coherent (Green, Lissitz, and Mulaik 1977).

5
A reliability coefficient of .70 or higher is considered acceptable in most social science research
situations.

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residents in each municipality. The survey (Appendix 3) was professionally printed in
color on 8.5‟x14‟ double sided paper that was accordion folded and mailed with an
introductory letter by the dissertation advisor, an information sheet by me and a return
envelope. It was mailed to a sample of residents in each city.

Table 3.1- Reliability of Dimensions in Pilot Study

Dimensions of Design review goals Items Mean
Cronbach's
alpha
Standard
Deviation
Local public input in drafting guidelines 3 3.652 0.756 2.602
Local Business input in drafting guidelines 3 3.486 0.728 2.303
Local professional input in drafting
guidelines 3 3.708 0.613 2.071
Prioritizing case by case approach in
review process 3 3.611 0.599 2.12
Prioritizing adherence to guidelines in
review process 3 3.736 0.737 2.413
Civic design as goal 3 3.847 0.884 3.107
Preserving township character as goal 3 3.844 0.912 2.713
Business promotion as goal 3 3.597 0.568 2.226

The format allows the first fold on the survey to act as a front cover with general
information about what the respondents would be asked to comment about. The format
also allowed the survey questions to be fitted on a survey that was easily mailed in a
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regular first class envelope, and allowed all questions to be printed on one double sided
sheet. The idea was that a potential respondent would be encouraged to reply given the
relative length of the survey.
To induce a response rate higher than the typical 5%-10%, another sheet was
attached to the survey where the respondent was asked to supply an email address and
return it with the survey whether they wished to be contacted if further information was
desired. Like all mail administered surveys, non-response bias was the major threat to
validity. To insure that those that are highly involved with the topic do not
disproportionately respond more than those who are not, the survey was designed as a
survey on place-making and character, with the more focused questions on the role of the
SID placed coming later in the survey.
Easy to answer questions such as those about demographics were placed at the
end of the survey to minimize the effects of fatigue (Fink 2006), but the more challenging
questions on legitimacy were placed towards the end as well so as not to frustrate the
respondent from the outset. Given the low response rate on the pilot mailing and the
desire to create a shorter, more straightforward survey, the idea of creating indices on the
three dimensions of design review was abandoned and each question was treated as a
standalone item. Additionally, it was evident from the pilot mailing that the response of
bias of „extremity‟ and „social desirability‟ (Alreck and Settle 2004), where respondents
fail to make fine grained distinctions on scale questions or simply always agree with what
seems desirable, might be an issue.
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After briefly considering forced ranking type questions instead of Likert Scale
type questions, concerns with the eventual sample size and the need to preserve the
ability to conduct interval data analysis, it was decided to proceed with both but resort to
a seven item scale instead of five to encourage fine grained choice. Forced ranking
questions were used to ask the respondent for their opinions on the „most important‟
factor from the list in the Likert Scale questions. The following describes the main
sections of the survey.
Introductory Paragraph. An introductory paragraph acquainted the respondents
with the goals of the survey, design review, and the role of SIDs in therein.
Attitudes towards place and design (Q1,Q2): To encourage respondents to
complete the survey, the questions dealing with residents‟ opinions on place character
were placed first. The respondent was asked to choose between three sets of adjectives
describing cultural, social, and ambient characteristics of place paired in a comparison
scale.
The next question asked respondents to rate the importance of the regulation of
architectural, establishment, and public space features on a Likert scale. The questions
were ordered from most relevant to a design review agency (architectural design) to least
relevant (outdoor furniture).
Dimensions of design review (Q3-Q8): The next section comprised the
dimensions of design review. In keeping with the idea of placing place character related
questions first, the group on substantive goals was placed first. Since the questions
probed matters of opinion, respondents were asked to rate their degree of agreement with
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the statements on a Likert summated scale (Fink 2006). In particular, the questions aim to
ascertain whether respondents have a civic, commercial, or cultural notion of place,
whether they have a democratic, discretionary, or guidelines-based notion of the review
process, and whether they prioritize input by the community, professionals or other
stakeholders. Each group was comprised of six Likert scale questions and one categorical
item question asking the respondent to choose the most important factor from the six.
Delegation (Q9-Q10): After the section on the dimensions of the design review
process, a group of questions probed the respondents‟ opinions on administrative
priorities of the design review agency. This group of questions was used to probe the
disjuncture between the agency‟s and residents‟ rationalization for delegation. Again,
each of the six questions, pertaining to the main rationales for delegation as illustrated in
the literature review, prompted respondents‟ opinions on a seven point Likert scale.
Legitimacy (Q11): Following Fraser (1974), a measure of political legitimacy was
constructed to probe residents‟ attitudes towards the process of decision making. The
measure was conceptualized as a summated index of a respondent‟s approval/
disapproval of an SID‟s involvement in a series of design regulation tasks. The summated
index is a variation on the summated scale where respondents receive either a one or zero
score depending on their answer. The scores for each answer are then added together to
provide each person with an index score that measures their „position‟ on the abstract
dimension which the individual questions are intended to tap (De Vaus 1990).
Five such tasks where identified: SID input in the design guidelines drafting
process, SID advice to prospective applicant as to intent of design guidelines, and SID
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involvement in design review process are consultative tasks whose scores were not
inflated. SID involvement in drafting the design guidelines and SID approval of
applications in design review process are decision making tasks whose scores were
inflated. This decision was made so that the index can both capture the breadth of SID
involvement but also remain sensitive to the critical nature of the decision-making tasks.
In this sense, the legitimacy of SID involvement can be interpreted as a numerical
measure with a range from 0-7 with 7 indicating high legitimacy.
To understand respondents‟ interpretation of SID involvement in design review
vis a vis other agencies, the respondent was asked the same questions for the case of
„planning board‟ involvement and „design review committee‟ involvement. This question
was deliberately placed after the goals of design review questions, as respondents‟
opinions on the first questions form the background for the respondents to help them
formulate their response on legitimacy question (Alreck and Settle 2004).
Predisposing and control variables (Q12-Q17): Since it asked respondents‟ for
information that might be perceived to be potentially sensitive of intrusive, the section on
predisposing and control variables was placed last. To understand the nature of the
respondents‟ attachment to the city, a categorical item question asked residents about the
most important reason for their residence in the city. Another question asked them to
indicate which factor they perceived would be in danger of being compromised. This
question aimed to understand the respondent‟s perception of the challenges facing the
character of the city.
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To probe familiarity with the downtown districts, a categorical item question
asked about the frequency of the patronage of the Main Street. The survey was completed
by questions on schooling, ethnicity, and finally, income. To minimize effect of social
desirability, threat or intimidation on respondents‟ interest in answering the survey, the
question on income was placed last (Fowler 1995)

3.4.3 Data Analysis
In addition to descriptive statistics, the data collected from the surveys were
analyzed using correlation, significance tests, contingency tables, and ANOVA
techniques. Most questions asked respondents for ordinal input on a Likert Scale. The
ordinal scale data were treated as interval measurements in line with best practice in
statistical research (Wimmer and Dominick 1994; Jaccard and Wan 1996). This is
considered safe especially that the scale has seven categories (Agresti and Finlay 1997).
The variables probing the perception of legitimacy were summated to constitute a
weighted index of legitimacy according whether they represented consultative or decision
making tasks. The weighted index puts more weight on those tasks defined as decision
making and less weight on those tasks defined as consultative. As mentioned, the idea is
for the index to account for the wide range of tasks that a review agency can be involved
in but not to have the index account for the lesser important consultative tasks to the same
degree.
The decision making tasks of SID involvement in drafting the design guidelines
and SID approval of applications in design review process (Q11-2 and Q11-5) where
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weighted (2) while the rest of the tasks, i.e. SID input in the design guidelines drafting
process, SID advice to prospective applicant as to intent of design guidelines, and SID
involvement in design review process (Q11-1, Q11-3, and Q11-4) were weighted (1).

Also for the purposes data analysis, the control variables were simplified
according to the following categories:
Q17 income: less than 80k, more than 80k
Q16 ethnicity: Caucasian, other
Q14 familiarity: High (daily, weekly) ---- Low (monthly, less than once a month)
Q12 attachment: social affinity (2, 3, 5, 6) --- convenience (1 , 4, 7).
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Chapter 4. Special Improvement Districts and the Garden State
This chapter describes the origins and evolution of SIDs in North America, the
circumstances that compelled the legislature in New Jersey to authorize the delegation of
design review to SIDs, and the reception of this program with local governments and
SIDs statewide. The following is a general overview of SIDs, and I recount the specific
details on the SID enabling act in New Jersey in the next section.
I argue that the record indicates that the design review provisions of the SID
enabling legislation were not seen to be problematic. They were in fact praised as
offering SIDs the tools to compete with suburban malls. Though the legislation was
mainly intended to benefit the larger cities, smaller townships were as a group more
interested in seeking this authority. Information gathered from a panel of SIDs with
involvement in physical development also indicates a widespread interest in design
review amongst SIDs. For many SIDs though a voluntary grant program is also sought
when the costs of a mandatory program are perceived to be too forbidding.

4.1 Special Improvement Districts and Design Review
4.1.1 Special Improvement Districts
Public-private partnerships, to which SIDs bear kinship in terms of organization
and policy, have been ubiquitous in downtown redevelopment in the last 40 years. Much
has been written about the history of public-private partnerships both from theoretical and
practical perspectives (see e.g. Frieden and Sagalyn 1989; Briffault 1999). Of relevance
to this study is the observation that partnerships in downtown redevelopment were the
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prototypical vehicle through which the grand coalition between a city‟s elected
politicians and major business groups drew up and effectuated plans to sustain
competitiveness in the global economy. SIDs, on the other hand, have since their
inception also represented to a larger extent the community of smaller business owners in
their efforts to keep their districts thriving in the face of economic change.
As city business and political gatekeepers struggled to shield downtowns from the
severe urban crises of the post World War Two era, local business communities around
the country raced to the rescue of downtowns suffering the social and economic
consequences of urban decline. It is here that the idea of the improvement district
captivated the policy imagination as an effective vehicle of revitalization. Briefly,
improvement districts are benefit districts that allow for the collection of assessments on
property within district boundaries to be used for district services, typically in the form of
promotions, business strategy assistance and improvements (Houston 2003). The
business improvement district as a legal entity is one incarnation of the more than a
century old government entity of the special district.
Business or special improvement districts differ from other typical districts in two
respects
1
. First, business districts usually undertake more than one activity, such as street
maintenance and business promotion, as opposed to say water or education districts.
Secondly, the impact of their services is not restricted to the assessment paying
membership. As I will argue later, design decisions that are supposedly restricted to

1
For an illuminating illustration of the influence of the practice of special assessments and the special
district device on SID structure, see Briffault (1999).

111

owners of commercial property do affect the larger downtown as a whole. This increased
scope of business district involvement poses important issues that I will elaborate on in
the pursuing discussion on legitimacy constraints.
Since its inception, which is traced by Houston to a district in Toronto in the mid-
sixties, the improvement district has become a ubiquitous tool of central city, Main
Street, and downtown revitalization. The first district in the U.S. was formed in New
Orleans in 1975 (Rothenberg Pack 1992). In the last two decades, cities in such countries
as New Zealand, South Africa, and the United Kingdom have made of SIDs a veritable
global best phenomenon. SIDs typify many contemporary best practices of interest to
scholars of urban affairs such as local control and targeted programs (Ward 2006).
SIDs have benefited from the perception that public-private partnerships have
been an effective means of administering urban revitalization plans in the post- urban
renewal era (Ysa 2007). As a „mall concept‟, improvement districts‟ major appeal is in
their curtailing of „free riding‟, which in this particular case is defined by the situation
whereby some merchants pay dues which fund services that are enjoyed by other
merchants who simply refuse to contribute. This issue was typical of voluntary
arrangements such as merchants‟ associations. SIDs also direct improvements directly
and tangibly to district specific projects.
Given these advantages, improvement districts‟ involvement in urban affairs has
been credited with restoring urban morale, especially since they are perceived to be an
effective antidote to a crippled city bureaucracy (Briffault 1999). It is important to note
the other instruments for downtown revitalization had already existed before
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improvement districts gained in popularity. The National Trust for Historic
Preservation‟s „Main Street Program‟ is one such program.
The Main Street Program is a program administered jointly by the National Trust,
a non-profit corporation, and state agencies. The National Trust was created in 1949 as a
public-private entity entrusted with raising awarness about historic preservation and was
instrumental in the adoption of the National Historic Preservation Act in 1966. The trust
originally relied on federal funding as a partial contribution to its budget, although since
1995 it it had been dependent entirely on private sources of funding. The Main Street
Program, created in 1980, quickly gained notoriety as public frustration with the
deterioration of historical commerical areas reached a tipping point.
Any particular locality might find in the technical assistance availabe through the
Main Street approach an impornat incentive for participation. The Main Street state-level
coordinating organizations offer assisntace in the areas of orgnizaiton, promotion,
economic restructuring, and ofcourse, design. But although statewide or citywide
coordinating orgnizations provide techincal services and training to local programs, it is
up to each program to secure the political consensus and funding necessary for initiation
and operation, which has proved to be a limitation that counterbalanced the incentives
mentioned above (National Trust for Historic Preservation).
Because of their unique financial structures, improvement districts can raise funds
upfront though bonds and maintain income streams through property tax assessments.
This allowed SIDs to gain in popularity and ultimately overshadow other vehicles such as
the Main Street approach that are dependent on voluntary contributions (Houston 2003).
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Financially independent, SIDs were better prepared to tackle projects requiring capital
investments such as improvements in downtown areas (Symes and Steel 2003). In this
sense, the economic argument for SIDs is that they align costs and benefits at the local
level. Through a mixture of incentives and coercion they facilitate contracting and solve
problems of shirking, free riding, and joint-production (Briffault 1999; Justice 2003).
Although state enabling statute stipulations vary, generally SIDs are required to
address the following issues in their by-laws: the scope of services, budget, area, cost-
sharing, and governance. The district almost always relies on the local governments‟ tax
collection system to collect the special assessments (Mitchell 2001; Briffault 1999).
Some general observations across states on some of these issues indicate that the buy-in
of 40% to 60% of business owners is needed to form the district, and that assessment
formulas vary but include considerations of zoning designation, location, frontage, and
type of business (Houston 2001). Usually some form of public hearing is mandated to
form the district, though these are mostly limited to the owners of property in the district

(Briffault 1999).
Given the novelty of the SID structure, successful SIDs programs and by-laws are
widely emulated. In New Jersey and New York, a small number of consultants have
advised on the creation of most SIDs. Almost all SIDs in New Jersey were organized
with input from two consultancies, the Atlantic Group of Cranbury and the Community
Advocates of Verona.

In New York City, for example, the firm of Volmer Associates
served as design consultant for both the Grand Central Partnership and the 34
th
St.
districts, and three or more BIDs were developed by one person, Daniel A. Biederman.
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Notable in the literature is a comprehensive summary by Davies (1998) who
argues that in addition to an economic rationale, the physical development rationale for
BIDs needs to be also considered. The economic component relies on the analyses that
tout the adequacy of SIDs in overcoming hurdles of free-riding and the costs of collective
action in the provision of local public goods (Briffault 1999; Houston 2003; Symes and
Steel 2003). Davies proposes that SIDs have also gained currency because of their
efforts in creating and maintaining dense, pedestrian friendly environments, goals that are
touted by proponents of New-Urbanist agendas for urban redevelopment.

4.1.2 Assessments and Critiques
Researchers have generally been sympathetic to districts‟ efforts in the
cleanliness, safety and marketing arenas ( see e.g. Stokes 2002; Hoyt 2004). Districts also
have had impressive records in other types of service delivery such as event and holiday
management (Mitchell 1999; 2001). Some commentators have credited SIDs with
restoring to downtowns civic functions that they once supported. According to
Goldberger (1996, 141), the success of the shopping mall/theme park model from which
SIDs borrow "stands as proof that our culture has not discarded the most important urban
value of all, the desire for physical proximity to others in a shared place".
On the whole, though, SIDs have attracted their fair share of criticism. Some of
this stems from the trepidation about extending the reach of privatization of urban affairs
under SID management (see e.g. Zukin 1995). The case against SIDs largely rests on a
purported disruption of a tradition of civic-minded policy. But in general and in the U.S.
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context, securing competitive advantage has for long created in American local
governments an alliance between city hall and the landed interests, which finds
expression in the „growth machine‟ agenda that has engendered extensive debate since its
first academic formulation in the 1980s by Logan and Molotch (Jonas and Wilson 1999).
In this regard, what should be examined is the extent to which the enlargement of
SIDs‟ role in regulation and the delivery of public services undermines some of the
restraints on self-interested behavior that even growth machines have had to contend with
even as they played a large role local in decision making (Short 1999). SIDs are also said
to suffer from a „democratic deficit‟, meaning that they are not entirely accountable to all
relevant stakeholders (Hochleutner 2003). For example, SID legislation often excludes
district residents from the vote for incorporation. As mentioned earlier, the justification
for this exclusion rests on the argument that since local governments are specialized in
function, then special groups in a community will have unequal interest in a particular
form of government. This gives justification to regimes deviating from the‟ one person
one vote‟ test of the legality of general government (Briffault 1999). This democratic
deficit has spelled serious concerns for social integration and participatory democracy,
and I will elaborate on it further in the discussion on legitimacy.
Another important critique of SIDs is that they produce inequalities in the
delivery of public services (Briffault 1999). Although local governments are required to
keep „baseline‟ services that are supplemented by SID efforts, very often these
governments scale back their efforts when SID programs are instituted. Suffice it to say
that there has been an energetic debate around whether SIDs violate traditional
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approaches to equity and the role of government in the redistribution of public services
financed though taxation (Mallet 1994; Tabb 2001).
More than ten years ago, Briffault (1999) observed that SIDs have come to
engage in strategic planning for their districts whether through the creation of business
identity campaigns, or more relevant to this study, through the planning of physical
improvements campaigns. In most states this effort is materialized in the choice and
design of lighting, benches, banners, information kiosks, and graphic materials. Houston
(2003) documents how SIDs, initially concerned with issues of cleanliness and safety,
evolved their repertoire of services as entertainment and tourism became a driving factor
in downtown economies to include a physical design agenda (Symes and Steele 2003).
As early as 1991, the Grand Central Partnership in New York strove to create a
distinctive identity for the area around Grand Central Station through street lighting,
kiosks, paving, and a promenade (Ghallagher 1991). In Philadelphia, a more proactove
district ventured into environmental identity, parking management, and street planning.
In Washington D.C., the Chinatown district lobbied for and was involved in planning a
mass transit link to the subway system (Houston 2003b).
In terms of their physical improvements agenda, a prevalent criticism of SIDs is
the idea of the loss of democratic control of public space that is the inevitable
consequence of the privatization of public streets and squares. This has attracted attention
given the importance of congregation as a fundamental avenue of political expression
(Clough and M. Vanderbeck 2006). Some more subtle forms of exclusion are social in
nature. Schaller and Modan (2005) narrate an account of how a Washington D.C. process
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for the design of public spaces only reinforced the majority ethnic group‟s notions about
the use of space in contradistinction to actual use by minority pratrons. These tales of
subtle segregation and discrimination are of serious consequence given the importance of
congregation on forming the cultural and political outlooks of the polity (Low 2001;
Barton and Silverman 1994).
Increased discretion for SIDs in the realm of physical design has also been said to
lead to an unrestrained exploitation of place. Unfortunately, many SIDs have often ended
up exacerbating the ills of the inflexible planning whose shortcomings it was hoped they
would address (Van der Ryn and Cowen 1996; Ellin 1999). These issues have become
more pronounced as the redevelopment of downtowns as destinations for entertainment
and consumption has been championed by SIDs. Critics of SIDs lament the proliferation
of „aesthetisized‟ public spaces (Zukin and Maguire 2004) and many accounts disparage
SIDs‟ „facelift‟ approach to regeneration (Sussman 1998). A more sophisticated
commentary bemoans what Gottdiener (2001) has termed „cultural anesthesia‟, in which
the cultural significance of urban places is simply ignored as districts implement „safe‟
and banal aesthetic agendas. These criticisms raise important questions about how SIDs
will perform given extended authority such as the control of place character though the
design review process.
Over the years, SIDs in New Jersey have survived legal challenges to their
authority. The courts have found that they provide sufficiently identifiable benefits and
that assessments are fair in proportion to the benefits conferred (see e.g. 2
nd
Roc-Jersey
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Associates v. Shav Associates
2
). In other cases, the courts have determined that the
delegation of police powers to the SIDs (e.g. ban on peddling and hawking) to be legal
(see e.g. Fanelli v. City of Trenton
3
).
I will conclude this short overview of SIDs on the important note alluded to
earlier that although it may be intuitive to think of SIDs as private entities, this is not an
entirely accurate description. SIDs are created by cities, which must approve assessment
formulas and collect funds on their behalf. Cities are represented on SID boards, oversee
their activities, and authorize their renewal (Briffault 1999).
However because they empower commercial property and business owners, SIDs
should be seen as a form of public-private entities. The degree to which the public entity
exercises influence on its private partners is however a matter that depends on initiative
and oversight. So although SIDs may be public-private entities in theory, they can
however be subject to disproportionate influence by private interests in practice.
Henceforth and as it concerns the premise of this study, the delegation of design review
can in practice take certain attributes of privatization.

4.2 The New Jersey SID Enabling Legislation
4.2.1 Political Context of SID Enabling Legislation in New Jersey
In New Jersey of the early 1980s, there were very specific local and historical
circumstances that created opportunities and incentives for political actors to institute

2
158 N.J. 581 (1999).

3
135 N.J. 582 (1994).

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SIDs, and more specifically SID-administered design review. Any discussion of the role
of SIDs in the Garden State has to take into account the deterioration in the conditions of
the states‟ urban centers as destinations for commerce and consumption in the two
decades leading to this legislation.
The ultimate setback for downtowns and main streets came on the heels of the
financial crisis in New York City in the late seventies which brought the city to the brink
of bankruptcy. The interconnected economies of New York and New Jersey resulted in a
severe decrease in investment in New Jersey‟s commercial districts, as I was informed by
Mr. George Henley, who at the time was as an attorney party to the negotiations on the
enabling legislation.
If New York‟s fiscal meltdown was the exogenous shock that set into motion
legislative action, there were of course other statewide determinants of the decline. New
Jersey was an early convert to automobile culture which paved the way for the
proliferation of the auto suburb early in the twentieth century. Entrepreneurs had early on
realized that the remoteness of the New Jersey suburbs from the urban shopping districts
presented the opportunity for the development of shopping malls to cater to their
residents‟ needs (Prosser 1977).
New Jersey was thus also an early pioneer of the enclosed mall, with the Sears in
Hackensack and the Cherry Hill Mall in Camden being two of the earliest examples
nationwide. It is important to note that since they primarily catered to suburbanites, these
malls were envisioned as environments for „middle class‟ consumption. „Discount‟ stores
were deliberately shunned by the malls, and they eventually gravitated to many of the
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locations in city centers vacated by quality retailers in their migration to the malls. As the
enclosed mall diverted consumers from traditional main street retail destinations, these
now struggling main streets in many townships simply became destinations for „working
class‟ consumption (ibid).
In this context of severe decline that cemented places like Camden, Newark, and
Trenton in the national imagination as the penultimate image of urban pathology, 1983
was a seminal year in New Jersey politics. Alarmed by the self-reinforcing spiral of
economic decline and disinvestment in the state‟s urban cores, the legislature finally
acted on the urgent need for urban redevelopment programs. This resulted in two
enduring programs that are still in place today, more than twenty five years after their
inception: the Urban Enterprise Zone (UEZ) Program and the Special Improvement
District Program.
UEZ program. The first form of state aid to struggling cities was to come through
the Urban Enterprise Zone (UEZ) program. The UEZ program was mainly a local
business promotion program that allowed participating localities to locally reinvest half
of all sales tax revenues. It exempted certain business activities from the tax altogether if
certain employment conditions such as local hiring, were satisfied as I was informed by
Mr. Don Smartt of the Community Advocates, one of the two consultants on SIDs in the
state.
As a badge of economic distress, UEZ designation became an ominous indicator
of the shifting geography of disinvestment across the state. In 1984, ten UEZ were
initially designated (New Jersey Department of Community Affairs). By the mid-1990s,
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conditions in New Jersey‟s central cities had reached an even more critical state, and
another batch of cities was „inducted‟ into the program. Cities such as Paterson, Passaic,
Perth Amboy, Asbury Park, Orange, Newark, Camden, Trenton, Elizabeth, East Orange,
and Irvington all gained the dubious distinction of having achieved UEZ designation by
the mid nineties.
Some UEZ cities such as Asbury Park and Long Branch are „Jersey Coast‟
communities which were hard hit by the changing geography of leisure travel and were
mere shadows of their older selves as resorts for the affluent. Others such as New
Brunswick and Trenton were some of the state‟s original urban settlements, plagued by
decades of suburban flight, disinvestment, and the accelerating concentration of
economic activity in the New York City and Philadelphia metropolitan areas.
The more interesting story is given away by the inordinate number of UEZs in the
greater Newark area. Newark, Kearney, Elizabeth, and Bayonne are all urban
communities with a legacy of vibrant industry and that have been victim to decline, all
which warrants their inclusion. Other townships that made the list, such as Orange, East
Orange, Irvington, and Roselle, though definitely depressed in their own right, are not of
the economic impact of the first batch.
Constituting a ring of inner „suburbs‟, these communities were losing their status
as a refuge of the commuting middle class by virtue of their close proximity to the city
and their vulnerability to the pathologies of nearby cities such as crime, disinvestment,
and „white flight‟. This threatened the dissolution of the barriers that make for the buffer
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between the Newark-Elizabeth conurbation and the affluent townships beyond. Many of
these UEZ localities went on to create SIDs.
SID program. The second major state program to deal with the issue of decline
was, of course, the Special Improvement District program. In correspondence with Mr.
John Lynch, former State Senator and one of two legislators to craft the SID bill, I
learned that the New Jersey version of the legislation was the brainchild of David
Schwartz, then State Assemblyman from Plainfield and also a professor at Kean College.
In drafting the bill, Dr. Schwartz‟s considered other states‟ experiences with
similar legislation, and concluded that an SID can marshal an important missing
ingredient that would help struggling urban cores thrive: attaining „mall-like‟ powers of
control over building design. In sum, Dr. Schwartz‟s thinking on the matter was that if
middle class consumption was to be lured back from the mall to main street, then in many
ways main street had to become a mall.
To get the bill through the New Jersey legislature, a political coalition needed to
be formed. Here Dr. Schwartz needed an ally in the Senate, and eventually partnered with
the powerful and influential Senator John Lynch, partially because of the acquaintance
between the two men. Plainfield, Schwartz‟s district, is located in Middlesex County,
which Lynch represented in the State Senate, I was informed by Mr. George Henley, the
attorney whose firm worked on the bill.
Senator Lynch, it happens, had his own incentives for joining in the effort which
stemmed from his experiences in downtown revitalization as the mayor of New
Brunswick (New Jersey allows officials to hold state level and municipal level positions
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simultaneously). In 1984, the then 3
rd
year State Senator and Mayor of New Brunswick
was presiding over a major redevelopment effort to revive what Lynch called a‟ run-
down urban center with urban flight and a shabby antiquated central business district‟,
and the SID program seemed like the most appropriate route to get the business
community involved in the effort.
The State Senate Bill introduced in May of 1984 authorized that the ordinance
may “include the requirement that the construction or alteration of building and structure
facades be subject to prior review and approval to assure compliance with design criteria
included in the ordinance”
4
. Furthermore, it was clearly stated that the “governing body
may designate the district management corporation to conduct these reviews and grant or
deny these approvals” (ibid). For one reason or another, the design review provisions of
the legislation were not at all controversial. New Jersey was the most urbanized state in
the U.S., and since urban centers existed in most legislators‟ districts, most were willing
to entertain any ideas that would catalyze investment, I was informed by Mr. Lynch.
The first draft of the bill did not feature any accountability measures to monitor
SID activity. In the final draft however, measures for mechanisms for municipal
oversight were inserted in the bill. These included a mandatory annual report, an annual
audit, and the requirement that one board member be appointed by the municipality
5
.
None of these pertain specifically to the design review powers in question, thought the

4
New Jersey Senate. 1984. An act authorizing municipalities to undertake, develop, construct, operate and
finance, as local improvements, pedestrian malls, and to create special improvement districts and
downtown district management corporations and supplementing chapter 56 of Title 40 of the Revised
Statutes. S.B. 1680. Introduced May 14, 1984 by Senator Lynch.

5
New Jersey Senate. 1984. Senate Amendments to Senate Bill No. 1680. Adopted June 25, 1984.

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language of the statute does imply that localities must exercise caution in undertaking
delegation.
This language on SID-administered design review made the New Jersey enabling
legislation unique amongst bills in other states in the extent of development control
authority SIDs exercise. Amongst all other states, only in Georgia is there a stipulation in
the enabling legislation that local government can mandate unique design standards
within SID districts
6
. Still in the case of Georgia the burden of legislation and
administration of design review falls on local government, although influence from SIDs
in crafting and administering the guidelines cannot be ruled out.

4.2.2 The Politics of the SID Enabling Legislation
The political thrust that lead to the decision to create a new route for design
review with SID involvement has its roots in the desire to side step agencies of local
government which were perceived as being inflexible and thus inefficient. It was felt of
the legislature that the hierarchical, functionally specialized bureaucracy had failed New
Jersey‟s cities. SIDs‟ purview over design would remedy this by distancing decision
making from local government control and by restoring functional integration in policy
making where various programs designed to revitalize urban areas can be grouped under
one roof.
The politicking culminating in the SID enabling act and the design review
provisions contained therein is one manifestation of the resurgence of conservative ideals

6
Georgia Ann. Codes § 36-43-8.

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in the early 1980s. This resurgent neo-liberalism gave Republicans a majority in the state
legislature and helped instate a Republican in the Governor‟s office in the person of
former Governor Thomas Kean. Urban policy was one key legislative arena where the
new Republican majority wanted to make an imprint after decades of perceived failure of
the liberal establishment in tackling what has become one of the most pressing issues of
the time.
Since New Jersey was the most urbanized state in the nation, declining urban
centers existed in most legislative districts in the state and many of these were eager for a
catalyst for change. The benefits of a mall concept of self governance, common
promotion, façade improvements, streetscape improvements etc. „was obvious to all‟,
recalled Mr. Lynch, not the least of course to the Republican majority. Seizing a moment
of political power, the Republican majority in the state legislature created a mechanism
that created an avenue for a more devolved urban policy-making with greater influence
from the private sector.
First, in a state notorious for bureaucratic corruption and ineptitude, the
legislature conceived the SID program as the „self help‟ counterpart to the publically
funded UEZ program. The UEZ program in essence made for a tax abatement whose
condition was local reinvestment of the funds. But what was sorely needed was a
mechanism for reinvestment that recognized the place-based nature of urban problems.
This mechanism had to sidestep local economic development departments, whose efforts
in the twenty years prior to the enactment of the legislation were perceived to be
ineffectual.
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In the SID enabling legislation, the state legislature created the conditions where
local government and interest groups could sidestep the possible „holdout‟ of reluctant
business owners. Here they placed New Jersey in the minority of states where an SID can
be created by city government alone, rather than through petition by district business and
land owners
7
. Although the route to establishment passes through city hall, the drive for
formation is most often spearheaded by private and civic parties such as the chamber of
commerce, merchant associations, non-profit groups and concerned citizens.
In anticipation that various localities have varying perspectives on the monitoring
of SID activity, New Jersey's SID enabling legislation allowed two routes to SID
formation: SIDs formed as municipal corporations or as non-profit corporations. Non-
profit status does allow a district to apply for and receive support from private
foundations, which may have been a factor in further eroding government control of their
operations. This is a more complex route that requires both legal and administrative
expertise which is often provided by a sponsoring organization.
The New Jersey Department of Community Affairs (DCA) downplays the private
character of SIDs by describing them as essentially public authorities that can address
private business concerns through cooperation and management (New Jersey Department
of Community Affairs). As mentioned earlier, the exact positioning of SIDs on the
public-private continuum is subject to debate. Thus some of the more prominent
consultants in the state would beg to differ with the DCA‟s assessment and even go to
proclaim that BIDs are as much private entities assuming public powers.

7
N.J. Stat. Ann. § 40:56-66.

127

Although it is true that municipalities can form SIDs as municipal commissions,
most prefer the less intrusive non-profit route, where public involvement is limited to a
minor representation on the board of directors and annual oversight. In the commission
form of SID governance, the municipal authorities appoint all board members. The
commission form was used in the first few SIDs as communities were cautious of
delegation, but soon thereafter it fell out of favor, as I was told my Mr. Donald Smartt,
consultant and manager of the Community Advocates group.
Secondly, SIDs‟ purview over design would also restore functional integration in
place-making. By functional integration I mean the consolidation of the administration of
many urban services under one agency. As mentioned, the bill was initiated by Dr.
Schwartz in the State House, but spearheaded by Mr. Lynch is the Senate. Mr. Lynch‟s
experiences with redevelopment in his hometown factored into his preference for such an
arrangement.
In 1984, then 3
rd
year State Senator and Mayor of New Brunswick was presiding
over a major redevelopment effort in the downtown district which was not progressing to
the desired speed and scope, as he informed me. New Brunswick, with two hospitals,
Johnson and Johnson‟s headquarters, and Rutgers University experienced relatively less
underinvestment than other cities in the state, but there was great potential in a
redevelopment scheme that would connect the downtown area to the Rutgers University
campus.
The township had managed to redevelop a large plot with street-facing storefronts
and a parking garage, but it became clear that gaining the cooperation of merchants and
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property owners was important but difficult. Merchants, Lynch adds, were distrustful of
government and there was no leadership among them to spearhead development. Most of
them were waiting for the next redevelopment project to buy them out, he added. It
became clear to Senator Lynch that developing a „mall mentality‟ amongst merchants
was necessary get the store owners and operators to agree to work together.
It was then that Lynch was approached by David Schwartz who proposed that the
SID as a form of self governance with limited taxation. As with any other entity, large or
small, the key to an aggressive and successful regeneration effort was leadership,
identified Mr. Lynch. From Mr. Lynch‟s experience, New Brunswick had attracted of
restaurants and nightlife (the presence of students being a major cause) and several
theatre and theatre related companies. Retail growth, while noticeable, was not
satisfactory. For New Brunswick and other cities, functional integration assured that this
leadership would be forthcoming.
The business community‟s interest in functional integration and hence design
review was from the perspective of economic development. In the accompanying
statement to the bill, it was described as primarily about „self-help‟ to enhance local
business conditions. The bill moved quickly through both houses of the legislature and
was signed by then Governor Kean who was very supportive of the legislation
8
. In
signing the bill, Governor Kean indicated that the SID statute will enable the
revitalization of older downtown shopping districts and redirecting investment to central

8
New Jersey Office of the Governor News Release. Release September 10, 1984.

129

cities. The final language in the statute in the introductory section on „policy‟, the law
clearly states that SIDs are a form of local „self help‟ that was to be encouraged as a
matter of policy
9
.
The DCA has always described the SID program in terms more typical of the
standard SID in other states where design review authority is not in their palette of tools.
The idea pushed by the DCA is that SIDs empower the business community to more
effectively manage competition with shopping malls, thus either entirely sidestepping the
place character issue or simply subsuming it under the rubric of the economic dimension.
In its rationalization of the SID program, the DCA retorts that the problems of a business
community than never better addressed than by the communities themselves (New Jersey
Department of Community Affairs).
In fact, the DCA has no mention of design review authority in their description of
the services SIDs offer (ibid). In any case it is worth noting that in addition to managing
the SID program, the DCA also manages the state‟s Main Street Program (MSP). Since
the MSP is an older program, the office that deals with both is primarily staffed with
„MSP people‟, who generally are not that informed about or interested in the SID
program, I was informed by Mr. Seth Grossman, director of the Newark IronBound SID
and lecturer on SIDs at Rutgers University.
In the final assessment, SID-administered design review allowed for a measure of
flexibility where localities are able to customize their processes to achieve the above-
mentioned goals of independence as well as functional integration. First and as

9
N.J. Stat. Ann.§ 40:56-65.

130

mentioned above, SIDs could opt for the route of non-profit incorporation. Secondly,
although it is indicated that preliminary design guidelines for the districts should be
drafted using municipal funds (the presumption being that the task be executed under
municipal supervision), the mandate that these studies be conducted to promote what is
termed unified or compatible design leaves a wide margin for interpretation
10
.
Thirdly, it is indicated that the municipal planning board should approve the
guidelines before they are included in the ordinance
11
. It is however left open as to how
this approval should be carried out. Fourthly, the authority to administer the guidelines
would lie with a municipal agent only if the SID was found to be „constituted and
organized as to be reasonably appropriate and qualified for this role‟ (ibid). This very
broad language authorizing the delegation of police powers does not specify any criteria
that can be applied to insure the SID is „qualified‟ for the task, indeed empowering local
governments to apply their own determinations as they see fit. Finally, each locality was
granted the voluntary choice to decide whether applicants could appeal SID decisions to
the municipal planning board.

4.2.3 The Imperatives of SID Incorporation
The DCA has not come to terms with the qualitatively different nature of SIDs in
the state, and that they are not simply a vehicle for local, flexible district management,
but have the potential through design review to redefine how neighborhood planning is

10
N.J. Stat. Ann. § 40:56-70.

11
N.J. Stat. Ann. §40:56-71.

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conceived and implemented as many localities have discovered. This fact was not lost on
suburban townships. Interestingly enough, Cranford, the wealthy township in Essex
County, was the first locality to make use of the law. Lawrence Houston of the Atlantic
Group, the second consultant on SIDs in the state and the author on an important
reference book on the subject, informed me in an interview that although we find SIDs in
urban communities such as Jersey City and Elizabeth they are also popular in less
populated communities such as Bound Brook and Millburn (Houston 1997).
Lynch‟s New Brunswick was the second SID to be organized, after Cranford, and
after the anticipated haggling amongst the owners and merchants, the governance
structure was put into place with significant help from two local non-profit
redevelopment entities (New Brunswick Tomorrow and the New Brunswick
Development Corporation). Soon the SID embarked on an effort using Community
Development Block Grant funds and initiated a design competition and façade
improvements. The SID (henceforth called City Market) has functioned continuously
since.
The first six SIDs - Cranford, Trenton, Elizabeth, Englewood, Somerville and
New Brunswick - were established within a three year period from 1985 - 1988, and
continue to operate today. Three of these are suburban townships. One issue this study is
concerned with is the nature of the townships that have become interested in these powers
of delegation. Today, suburban towns disproportionately form a larger share of SIDs that
make use of design authority. There is a seemingly perplexing initial lack of interest on
the part of urban municipalities to espouse a law that was created to help them tackle
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issues of urban blight. The reason for that disinterest I was told by Mr. Henley is that the
SID formation process was perceived to be too cumbersome. But given interest by other
communities, this rationale is not entirely satisfying.
Mr. Lynch had relayed to me that in urban communities, convincing mayors and
council members to relinquish power to SIDs remained a large obstacle. New Jersey
politics has a dubious distinction of being the most corrupt in the nation. The number of
assemblymen, congressman, mayors, etc. that are charged with crimes involving the
abuse of public office every year is much larger than in other states. It is my observation
that it may simply be that that local politicians are unwilling to relinquish control over
urban development given the role development has in the underground world of politics,
money, and power. Even when local merchants manage to form SIDs in larger cities, turf
wars around the contested nature of place making remain to deal with, as the episodes
from Newark‟s Ironbound‟s district attest to, I was informed by Mr. Grossman.
SID-led design review was meant as a tool to help communities in the state‟s
largest cities deal with decline by adding to the repertoire of the economic development
tools of SIDs the ability to coordinate visual dimension of new developments. However
because of the reluctance of urban mayors to cede powers to SIDs it was ironically
smaller cities and suburban localities, rather than urban ones, to be the ones to capitalize
on these opportunities. Questions remain as to the extent these suburban municipalities
have instituted safeguards on the public interest that the enabling legislation afforded.
As mentioned earlier, the Atlantic Group headed by Allan Houston in Cranbury,
and the Community Advocates headed by Donald Smartt in Verona have consulted on
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the formation of a majority of the state‟s SIDs. Mr. Smartt has participated in the
formation of many of the states‟ better known districts such as in Fairlawn, Maplewood,
Bayonne, Jersey City, Haddonfield, etc. Through his experience, Mr. Smartt has observed
that smaller districts are residentially galvanized, which is one of the reasons „aesthetics‟
matters for these smaller communities. For larger districts, he observed, merchants „don‟t
take pride in their windows‟. In the smaller suburban townships, the closer relationship
that exists between city hall, the merchants, and residents, has made „relinquishing‟ of
power less problematic, since the interests of many of the parties align.
To underline this point, the Cranford and Maplewood SIDs were spearheaded by
residents of both townships, then marketed to the business community, Mr. Smartt
continued. As Mr. Grossman phrased it during our interview, New Jersey towns are all
„single interest towns‟. Today as growth in urban New Jersey has slowed considerably
with build out, water shortages, and various preservation programs such as the Pinelands
Preservation Act, inner ring suburbs have experienced pressures of densification. It seems
that these pressures of assimilation to the urban conurbations have made these powers of
design review desirable to communities interested in preserving their character.

4.3 New Jersey SIDs’ Involvement in Design Review
To probe the extent of the involvement of New Jersey SIDs in issues of physical
development, I contacted all SID managers in the state whose emails or phone numbers
were listed in the list compiled by Downtown New Jersey. I received replies from fifteen
SIDs, and I proceeded to ask them about their involvement in issues of physical design.
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Although these communications were exploratory and not representative of all SIDs, I
nevertheless received some interesting replies. As mentioned, I made use of this
opportunity to test some of the ideas that I would later incorporate into the survey.
Although the replies were not representative, I will report findings in terms of
percentages for easier reference.
Substantive and procedural goals. More than two thirds of SID managers
indicated their vision for the downtown area is one of service and retail, less so one third
who indicated their striving for a downtown area as public place or an entertainment
center. Four SIDs indicated explicitly their interest in issues of place, such as making
downtown into an arts center, redeveloping areas with varied character, and creating a
destination. When I asked more generally about place character, almost half thought the
enhancement of the character of the downtown is most served by preserving the historical
character of township. In fact, most said that creating a traditional downtown is a top
priority, as did three quarters a quaint downtown.
As a goal, two fifths of mangers said it is important to make the downtown
district a place that has a diverse mix of restaurants, cafes, and shops and a place that has
a distinctive character, while three quarters aspired to a place that encourages walking,
sitting and enjoying the scenery. Eight out of ten said business diversity would be most
important. This focus on enhancing the historic, pedestrian, and hospitality appeal of the
district was universal. When I asked how this was to be achieved, most prioritized
regulating the architectural styles, materials, and details of buildings over the themes and
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designs of shops and restaurants (half) and the designs of public outdoor spaces (two
thirds).
In deciding on design guidelines for the downtown area, managers
disproportionately thought it is important to involve downtown property owners and
downtown business owners over residents and consultants, which was expected given the
interests they represent. In reviewing the designs of proposed projects in the downtown
area, the merits and qualities of each project and the designs of other buildings in the
downtown area were cited as a priority. But when prodded to make a choice, 9 out of 10
said a case by case consideration is the more important criterion, also predictable result
given the fact that SIDs aim to manage the districts affairs unconstrained by the city‟s
bureaucratic machinery.
Design review and the façade grant program. For those five SIDs that enforce
mandatory guidelines, three answered that the reasons for taking this route was alarm for
the degree of degradation and dilapidation in the districts, while one cited the lack of
adequate municipal controls, and another business owners‟ initiative. Of those SIDs that
did not declare involvement, two thirds mentioned that they had previously considered
the issue.
As to why the issue was not pursued further, three mentioned opting for a
voluntary incentive-based façade grant program instead, while another three mentioned
the lack of resources to conduct design review for all downtown projects. These results
were also anticipated, as a high percentage of SIDs initially express interest in the
guidelines, but many factors deter them from further consideration, most notably
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resources issues. Just in terms of size, one third of SIDs reported having five or more paid
employees. One fifth reported two employees. Although the survey did not probe how
many of those are full time, the figure is likely to be lower, with my experience pointing
at 2-3. The small nature of the operation often precludes SIDs from pursuing design
authority.
The option of voluntary compliance with the SID‟s guidelines through the façade
grant program often is a less costly approach mostly because the case load is reduced to
those proprietors interested in the grant. In fact the façade program was so popular that
three quarters of directors mentioned managing such a program. In assessing applications
for facade grants, the SIDs rely mainly on volunteer professionals as two thirds attested,
the rest on SID staff themselves.
This is typical of the situation on the state where the size of the SIDs does not
allow for the retention of full time staff. On the flip side, it allows community
involvement in the process as many of these professionals are local residents. The range
of dates as to when the façade grant program was initiated was from 1999 to 2007, with
the median date being 2002, indicated that most are relatively new. More than half of
SIDs with a façade grant program reported issuing one two five grants per year as
average. The façade grant program is not allotted a relatively large part of the yearly
budget.
In terms of the size of the SIDs annual budget, one third indicated a budget of
more than 500k, and one fourth a budget of 300-400K. With these types of budgets, SIDs
argumentatively can fund more than five projects yearly. For many of the newer SIDs
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though, funding priorities lock up funds for major streetscape programs, as two thirds
reported funding streetscape improvements in the past. This indicates that physical design
issues is on the agenda for a majority of SIDs, but streetscape improvements still
represent a more legitimate use of funds, since the improvements are permanent and carry
high visibility.
In conclusion, it is clear though that the use of design review authority is not
widespread amongst SIDs in the state, and is limited to the SIDs bordering the larger
urban areas of the northern part of the state as stated previously. As to why these SIDs
were interested in this authority, the replies corroborate the evidence from the archival
material and paint a portrait of interest groups weary of decline in their townships that
decide, often preemptively, to form SIDs to manage their downtown districts. On the
question asking why those SIDs going the façade grant route chose to do so, one third
answered that is was easier to control guidelines that are under the sole discretion of the
SID. To make design review mandatory would require the municipality to amend the
zoning ordinance, which might be a resource consuming bureaucratic process.

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Chapter 5. Political Imperatives and Discretion in Design Review
The purpose of this chapter is to start to illustrate how a framework of political
imperatives can illuminate the nature of the design review process in its legislative,
substantive, and procedural dimensions through the example of the processes in Bayonne
and Maplewood. I attempt to show that necessary compromises between political
imperatives made for a margin of discretion for the SIDs in the design review process.
In Bayonne, the BTC was spearheaded by Broadway merchants eager to turn
around an ailing district. In the compromises that resulted in substantive policy and the
crafting of the guidelines, regulatory considerations prevailed where the local business
community sought to gear other developers towards a contextual design agenda, a move
which resulted in the partly discretionary recourse to character-based guidelines.
Given this necessity of somewhat constricting substantive goals, the city’s and
BTC’s interest in flexibility as a delegatory imperative contributed to a process with very
little control or oversight. Given high levels of trust and cooperation, agency
considerations did not exert sufficient pressures to limit discretion. This all found
expression in a private-public agency where city representation on the BTC Board is
nominal and where it is possible for the BTC to update the guidelines in anticipation of
city approvals.
In Maplewood, the MVA was spearheaded by civic leaders who were interested
in preserving the special character of their community in a context where nearby urban
areas were showing signs of decline. In the compromises that structured the MVAs
operations, the interests of the city in regulation actually called for high discretion in

139

substantive policy. This was because Maplewood Ave. was not endowed with a building
stock of identifiable character. The influential townsmen also expressed an aversion to
stylistic development guides which they saw as resulting in artificial environments. This
necessitated a substantive policy and the drafting of theme-based guidelines predicated
around the idea of ‘small scale village character’.
To counteract the highly discretionary policy guidelines given that the agency
relations between the township’s civic leaders and the business community were not
characterized by high levels of trust, controls were built into the legislative and
procedural dimensions. Legislatively, city hall also appointed a large percentage of
members of the MVA board. Contrary to the situation in Bayonne, the design guidelines
have to be voted into law by the township to take effect. An institutional check came in
the form of the need for the MVA board vote on all approvals. A recourse of appeal to
the planning board was also mandated. The distance of the design review agency from
government and the extent of its decision making authority reflect the fact that discretion
was however somewhat tempered by agency considerations.

5.1 Design Review in Bayonne
5.1.1 Snapshot of Bayonne
When the city of Bayonne was founded in 1869, it was a known destination for
leisure, with its shores and forests drawing wealthy New Yorkers who organized into its
yaching, tennis, and rowing clubs (Whitcomb 1904; Schnitzer 1973). The peninsula’s
strategic location however would help transform this idyllic retreat into a logistics and

140

industrial powerhouse. Constable Hook, a peninsular area on the Hudson was an ideal
location for industrial growth because of its proximity to the Morris Canal and the ocean
routes (Robinson 1961). In 1886, the Port Johnson Coal Docks was the first industry to
be established, followed by Standard Oil in 1877, and later the Prentice Oil Company.
By the 1890s, the population had grown to more than twenty five thousand, and
industrialization had slowly taken root with a wide base of industries ranging from
electric machinery, oil products, to medical products (ibid). The Hazard (Gun) Powder
House, the Sulphur Works, the Clarks Iron Foundry, the Babcock and Wilcox company,
the Bergen Point Iron Works, the Bayonne Steel Casting, and the Southern Cotton Oil
Company were some of the notable plants that absorbed the German, Slovak, Polish,
Italian Catholic immigrants who poured into the city (Sinclair 1940; Robinson 1961).
This history of ‘blue-collar’ industrial employment would continue to shape how
Bayonne self-identified as a ‘proud’ and ‘working class’ community to this very day
(Schnitzer 1941; Middleton 1995, 2000).
In its heyday, the oil industry and the shipbuilding industry generated robust
employment, and workers and employees spent their disposable income at the shops that
lined the thee mile long Broadway strip. Throughout the early twentieth century,
Bayonne managed to remain essentially a stable middle income, blue collar community
(Nowicki and Fahley 2006). After the demise of industry, Broadway kept losing its draw
as a shopping destination to out of town areas. The hemorrhage was to the extent that
recent studies by Mr. David Milder, a consultant to the city on economic matters, showed

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that 80% of economic activity that could have been conducted locally was being lost to
out of town retailers.

Figure 5.1 Broadway Avenue, Bayonne (1)

Source: Author

Suburban malls, such as the Newport Center in Jersey City were attracting an
increasing number of shoppers, especially the young, and night business was in decline
(Abeles Schwartz 1986). It was during these difficult times that Broadway started to
suffer from an image problem as being unsafe and unclean (The Jersey Journal March 31
1991). By the time the clothier Posner’s completed its move from Broadway to the
Newport Center partly in pursuit of a safer environment with better parking facilities,

142

there developed enough momentum to tackle the image problem (The Jersey Journal
October 19 1988).
Broadway St., around which the SID was formed, had long been a bustling
commercial thoroughfare, and consequently had always been one of the first avenues in
Bayonne to receive infrastructure upgrades. The city first laid out Broadway St. as a
north-south route in 1850. It was first paved with heavy wooden boards before it was
renamed Avenue D and macadamized in 1883. The compact nature of the city, with
Avenue D strategically located in its center, made it the avenue of choice for commerce,
accessible by cycling and trolley cars.
In 1904, the street was paved, and in 1907 the merchants along the street asked
the city to change the name to Broadway. In 1938 trackless trolleys were put into service,
but were soon abandoned for buses (Robinson 1961). In the popular imagination, the
history of Broadway as a bustling destination of commerce clearly dates back to its
heyday in the early twentieth century. It was then that an industrial renaissance expanded
business opportunities for merchants who embarked on an ambitious building program
which resulted in the building stock that preservationists and local architects refer to
today as being typically ‘Broadway’.
Though Broadway prospered through various epochs, it was not to meet its
gravest challenge until the late 1970s. With the globalization of industrial production and
the loss of employment in Bayonne in the petrochemical and chemical industries to
overseas destinations, Broadway St. started to show signs of distress typical of other
struggling downtowns. Mall developers were quick to capitalize on this potential to lure

143

consumers away from Main Street, and when the Newport Mall in nearby Jersey City
opened its doors in the early 1980s the prospects for Broadway were not encouraging.
Quickly once popular stores started to shutter, and facades and buildings fell into
disrepair. After years of decline, the enough political will had formed for some type of
government intervention to stem the tide.

Figure 5.2 Broadway Avenue, Bayonne (2)

Source: Author

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5.1.2 The Politics of Discretion in Bayonne
The purpose of this section is to illustrate how a framework of regulation,
delegation, and agency imperatives can help explain nature and extent of discretion in
Bayonne’s process of design review.
Regulation. Given the anxieties about decline and abandonment, the city began to
show interest in building design standards because as a way to create an environment that
encouraged patronization. In late 1980s Bayonne, there was a concern with decline and
changing demographics that has prompted action. To regenerate Bayonne, a report that
the city commissioned in 1986 (Abeles Schwartz 1986) recommended that awnings and
signage be spruced up and facades in blighted buildings be given facelifts. Historic
buildings needed to be maintained and new development on empty lots and pocket parks
would be encouraged. More importantly, the report recommended that in order to achieve
these development goals, façade standards needed to be developed.
Specifically, it was noted that these standards should vary from area to area, and
be revised over time. When the city considered these standards, it aimed to promote the
public interest and materialize the safe and inviting environment that the detailed
recommendations called for. The city worried that traditional establishments such as
furniture and appliances stores were deserting Broadway, while the number of discount
stores was on the increase. It attributed this to changing demographics and the decreasing
numbers of young residents and rise in the elderly population. The city’s plan was to
revive Broadway to its former self (Abeles Schwartz 1986).

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Bayonne would remain faithful to this goal. In his report to the city, Milder
(2004a) opined that revitalization would be best achieved by aiming to give Broadway
the character of a family-friendly hometown. Intuitively, Milder asserted that quality
retailers and restaurateurs hesitate to locate near buildings with facades that are
unattractive or in poor condition. There was also a perception that shoppers felt that if a
store’s facade looked unappealing, then the merchandise will be distasteful. There was
also a conviction that a downtown with many ‘good-looking’ facades was more likely to
be perceived as a charming and safe shopping destination. These later observations were
some of the same concerns that those working with design review early on had to deal
with.
Obviously the Bayonne United Merchants Association (BUMA) also concurred
with the city on some its assessments. Early on, merchants acknowledged Broadway was
losing vitality and suffering from decline, as evidenced in vacant store fronts, store
closings, and the proliferation of stores with hand lettered signs. In response, the nucleus
of a core group was formed to consider and implement the proposals of the 1986 study
(Drayton 1990). The need for action was widely acknowledged. Many shared the
frustrations and hopes of Ms. Patricia Murphy, Chairwoman of the Board of the BTC
who as a small business owner was very well aware of the challenges of operating a
successful business and retaining customers. When the SID was created, it banded
merchants together, so much so that when the Board of Trade changed name to the BTC,
more than two hundred merchants were involved (ibid).

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In their effort aimed at forming the BTC and acquiring design review authority,
the businesses behind BUMA also saw an opportunity to further their interests in
materializing their vision for Broadway and uplift the image of Bayonne, which was the
overriding impetus behind regulation. Through regulation the BUMA leadership sought
to compel rivals businesses to approach design through its vision of a Broadway that
capitalized on the street’s traditional building stock.
As one BUMA member put it, the goal was to bring in a new upscale mix of retail
establishments (Benedict 1991). To effectuate any sort of change, though, an agreement
on principles was necessary. At the most general level, the goals behind regulation for
both the city and BUMA converged on the idea of restoring pride in a declining
downtown by encouraging decent, contextually sensitive design solutions. These
principles would find expression in character-based guidelines.
Then as today, most local business owners agreed that attracting more
development and developing empty lots was a crucial point. The goal of creating a better
pedestrian environment also was expressed by several others. In sum, the prognosis by
Mr. Benecke of the BTC was that since people like to stroll and feel it was a great
experience, Bayonne should focus its efforts to improve the shopping experience
(Benecke 2008). Other than design regulation, there was consensus on the need for more
forceful enforcement of zoning codes, programs to encourage residential projects above
retail on Broadway, and progress towards the redevelopment of empty ‘blighting’ lots
(ibid).

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Delegation. The impetus for seeking delegated authority from the BTC’s
perspective is predicated on the issue of flexibility and secondarily expertise, and stems
from the belief that the turnaround be achieved much more effectively if a dedicated
party was responsible for the multiple facets of the endeavor. The rationale for flexibility
had its roots in the 1986 study where it was concluded that in order to plan for a
turnaround effort must be concentrated to keep Broadway safe, friendly, and attractive
(Abeles Schwartz 1986).
Many of the reports’ recommendations on revitalization were of the sort that
demanded a concerted effort between departments concerned with economic
development, business promotion, planning, and building. Although these city
departments existed, they did not cooperate in ways that produced sought after results.
When both the city and its consultant sounded the proverbial alarm, there was little
traction to implement the recommendations of the report.
In its decision to proceed with the forming of the BTC, the township’s rationale
for delegating design review was influenced by the belief that the SID promised to be a
‘place-based’ agency that leveraged the city’s expertise and coordinated departmental
efforts in these various fields as they pertained to specific projects which they advocated.
The city had come to believe that design improvements on their own do not necessarily
insure downtown revitalization. Design, in the city’s perspective, had to be coupled with
efforts on the business end, such as helping clients secure suitably-sized commercial
spaces, improving transportation access, and strong marketing (Milder 2004a). In the
absence of these complementary efforts, the districts were very likely to have the fate of

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becoming what Milder (2004a) called ‘decorated coffins’.
The experiences with a façade renovation program that predated the BTC also
shed light on the need for a vehicle that could guide an applicant effectively through the
renovation process. It became apparent to Mr. Milder, the consultant to the city, that
merchants were not moving forward with renovation projects because they did not know
how to secure financing, hire an architect, etc. and lacked the time and energy to remedy
this situation. It was envisioned that the BTC could run a process where it would secure
city approvals with input from BTC professionals and reduce anxieties about delays and
escalating costs among the participating business owners.
Agency. When the city took shy steps towards revitalizing Broadway, BUMA
rose to the occasion and decided to initiate action. After three years during which city hall
failed to act on any of its recommendations in the 1986 report, BUMA, the local business
group, decided to take action and leverage the expertise of consultants to jumpstart an
effort of revitalization. Adamant about not letting the city deteriorate, the association,
with a grant received from the Bayonne Economic Development Corporation, retained
Mr. Don Smartt of The Community Advocates of Verona as a consultant to set up
programs such as senior citizens discounts, a merchants directory, and promotional
programs (London 1989). Merchants acknowledged Broadway was losing vitality and
suffering from decline.
Mr. Smartt’s input and subsequent involvement shaped many BTC programs and
policies. Mr. Smartt also set the stage for merchant’s involvement when he proclaimed
that the recommendations of the 1986 could only be put in place with the participation of

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the private sector. As deliberations ensued, the idea that a private-public partnership was
the most suitable vehicle gained traction (Abeles Schwartz 1986). Experiences of other
townships with SIDs were also highlighted by consultants, especially the positive results
achieved in nearby communities such as in Cranford (The Jersey Journal, September 24,
1990). The merchants’ association also pointed out to the success of Windsor (Ontario) in
turning around its’ shopping district in the late 1970s. In an effort to in support for the
plan, the BUMA promised residents that they will wait less than 5 years to achieve
similar results in Bayonne (Kalcanides 1990).
Given this history of proactive involvement on the part of BUMA, although the
SID initiative was spearheaded by the business groups in town, there was no indication of
the city being concerned about issues of moral hazard resulting from any possible
divergence of interests. After its creation, the BTC’s relationship with the city was very
harmonious. It managed to wrestle from the city more autonomy than was contemplated
in the Abeles Schwartz report. The report had originally recommended that the
merchant’s association be involved in crafting guidelines, but not their administration
(Abeles Schwartz 1996).
The legitimacy of the BTC’s involvement is pinned on its conception of physical
improvements as an element of economic development, a goal to which the city
subscribed. This commonality of purpose is reflected in the close relationship between
the BTC and the City of Bayonne in administering programs and setting policy. If it were
any indication of a close relationship, the BTC website can be accessed from the city
website through a ‘resource for business’ link. Neither the city website nor the BTC

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website feature a text explaining the BTC’s mission or rationale as in other SIDs, which
further highlights the ‘taken for granted’ nature of the center’s mission.
The BTC’s goal was to transform Broadway into a viable pedestrian friendly town
center. An economic report to the city clearly indicates that establish(ing) the town center
as the city’s ‘Central Social District’ is a major strategy in this effort (Benecke 2006).
The role of the Town Center was to cooperate with other city agencies, such as the
community economic development department, and the planning board in this regard.
The close relationship between the city and the town center can be gleaned from
examining some of their physical improvements-related efforts. The BTC’s efforts with
streetscape improvements, repaving the street, replacing pavers, renewing landscaping
and installing benches, new trash baskets and new parking meters helped build trust with
the city. The façade improvement program is an interesting example of this close
relationship since it is funded jointly by the BTC and the reinvestment of the sales tax in
the urban enterprise zone through the city’s Office of Community Development.
Immediate stakeholders such as landlords and proprietors, city-wide stakeholders
such as residents and civic associations, and professional advocates all can claim rights to
the guidelines development process. But the main legitimating thrust of the Town
Center’s control over the design guidelines development process is the fact that the
guidelines were developed in close consultation with the City’s Office of Community
Development and the City’s Zoning Officer (Bayonne Town Center). It is not very likely
though that that both city agencies played an active role in guidelines development, and it

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is more plausible that they provided the ‘official seal’ that legitimated the guidelines
prepared by the BTC in consultation with BUMA.

5.1.3 The Politics of the BTC Legislative Dimension
These considerations of regulation, delegation, and agency can help understand
why the legislative, substantive, and procedural dimension of the process took the form
that they did. In Bayonne, the township acted to confront the challenges of a declining
downtown by instituting and delegating design review to the private-public BTC with
proactive stewardship from BUMA. The BTC had both review and decision making
authority, especially the authority to write design guidelines. As illustrated, the BTC’s
rationale for lobbying for the delegation of design review was predicated on
considerations of expertise and flexibility.
Agency considerations were also not much of an issue. This made a compelling
case for discretion. The regulatory interest of the BTC core group in steering the larger
population of business and property owners towards a specific contextual design agenda
(akin to the rationale of control of rivals) tempered these discretionary imperatives. All in
all, the legislative characteristics of the BTC showed more deference to the private
partner in the private-public partnership.
The issue of delegating design review was made more acceptable to the
city by the fact that the delegation of authority was conditional, and the process seemed
like ‘more teeth for government’. Bayonne was interested in design control, but doing so
through BIDs has many advantages. The structure of the SIDs already was a convenient

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conduit for the promulgation of local guidelines. There is also an argument for flexibility,
as SIDs are better aware of what guidelines are suitable to the local situation. The interest
in deflecting costs also cannot be denied as SIDs do all the ‘dirty work’ of gaining
momentum on the guidelines, assuaging criticism of government intervention, and
approval for plans, I was told by Mr. Grossman of the Newark Ironbound in a
conversation.
In the final assessment, the legislative independence of the design review agency
from government and the extent of its decision making authority relays the fact that in
Bayonne, regulation was mainly spearheaded by a group of proactive merchants who
were interested in compelling fellow proprietors and businesses to conform in their
proposals to a place character that is consistent with the thoroughfare’s historic image.
The influence of the private partner is manifest in the fact that the incorporation
ordinance states that design guidelines become legally binding after a defined time period
from their promulgation and their presentation, without the need for a vote in the
council
1
.
This is made easier because the guidelines were prepared by the consultant to the
BTC Mr. Chatham, an architect with experience in design regulations. This bestowed two
advantages. The first is that the idea of entrusting a professional quells skepticism about
argument of expertise, i.e. expertise the Town Center staff might lack in creating and
enforcing guidelines. Secondly, the specific choice of Mr. Chatham for the job is also
germane given his prior experience in downtown revitalization. Also as mentioned, the

1
Bayonne Municipal Code § 10-2

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city felt comfortable that the BTC shared its objectives and goals for the district. On the
legislative level, this is reflected in the fact that the composition of the board of directors
of the BTC mandated a very limited representation from the city.
One of the first orders of business for the BTC was to tackle the reputation
Bayonne suffered as being unsafe and unclean (Casey 1991). Mary Divock, the BTC
executive director, understood the importance of keeping the town center free of physical
signs of disorder. The BTC hired a cleaning crew and embarked on streetscape
improvements including tree metal grates, benches, and lamp poles (Froio 1995).
The BTC looked into issues like widening sidewalks, though it was decided there
was just not enough critical mass for the project to be viable (Milder 2004a). When the
BTC turned its attention to aesthetic improvements, the recommendations of the 1986
report concerning façade standards were put into effect. Design was an important
consideration because of its role in attracting business and foot traffic, according to Ms.
Patricia Murphy, Chairwoman of the BTC board as I was informed in a communication.
Legislative authority. As mentioned, the nucleus of a core group was formed to
implement Mr. Smartt’s proposals and the proposals of the 1986 city study. The
involvement of the private sector is setting guidelines for the downtown area was insured
when an SID was created for that purpose, after there was encouraging progress in the
reduction of vacancies with the involvement of SIDs in other communities like Cranford.
By ordinance, the Bayonne Board of Trustees is to be composed of eleven voting
members and two non-voting members, the latter representing the city. Ten of the eleven
voting members represent the local business community, the eleventh represents the

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Bayonne Economic Development Corporation. Six of the ten are proprietors, while three
are real estate owners. Heavily tilted in the favor of business interests, the board
exemplifies the ‘hands off’ approach of the city
2
.
The ordinance stipulates that the BTC will be responsible for promulgating as
well as administering the design guidelines. The design guidelines are developed and
promulgated by a design review board composed of the Executive Director of the Town
Center Management Corporation, two Board Members of BTC, the Director of
Community Development, the City of Bayonne's Zoning Officer, and two owners of
properties within the district
3
. Flexibility is evident in the procedure for the updating of
the design guidelines. Rather than being published by ordinance as in most other
communities with similar ordinances, the code stipulates that the guidelines become
enforceable after a forty five day period from the moment they are presented to the
council expires, unless there is action by the city to the contrary.

5.1.4 The Politics of the BTC Design Guidelines
As with legislation, in the compromises that resulted in the development of the
guidelines, regulatory considerations moved the BTC to limit discretion while delegatory
and agency considerations exerted opposing pressures. These competing imperatives
found expression in the character-based guidelines that were promulgated.

2
Bayonne Municipal Code §10.2

3
Ibid

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On the spectrum of discretion, the character based guidelines can be described as
being partly-precise. The city wanted to create a physical setting that would catalyze
vibrant commercial activity and in pursuit of that goal it saw potential in BUMA’s
interest in a contextual aesthetic. The BTC retained architect Walter Chatham to draft the
guidelines. Mr. Chatham’s mission was facilitated partially by the fact that Broadway had
inherited a stock of historic structures representative of the street’s heyday in the early
twentieth century.

Figure 5.3 Project with BTC Involvement (1)

Source: Author

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In his efforts, though, Mr. Chatham could not be too ambitious as to the scope of
the enterprise. As mentioned, Bayonnites painted themselves in a positive light as a
hardworking blue collar community. The reality, however, is that Mr. Chatham also had
to contend with the fact that Bayonne had a not so flattering reputation as a rundown part
of the state. As he communicated to me, the perception was that when industry migrated,
Bayonne had nothing left going for it.
Cognizant of Bayonne’s status and conditions, and echoing the city’s baseline
goal of creating an inviting environment, Chatham recognized that he could not approach
the task with an elitist sensibility. Chatham was also cognizant that the popular design
imagination had to be respected. He noted to me that for example though he was not
particularly opposed to neon signs, some design elements have a clear connotation of a
certain economic status. As an architect he would beg to differ, he mentioned, but in his
own words, ‘this was not the place for Avant Garde design’.
The BTC’s strategy for maintaining and increasing pedestrian traffic on
Broadway was focused on retaining and expanding on the street’s major ‘anchor’
institutions, which are the medical center, the Shop rite supermarket, the post office, and
some of the largest consumer banks. The BTC website does proclaim Bayonne to be ‘a
walkable, safe, attractive and friendly commercial area’ with over thirty national and
regional chains, strong family restaurants, popular gyms and spas, over twenty shops
caterings to children, ten banks, and lots of unique shops and boutiques’ (Bayonne Town
Center). Arguably, the BTC justified its mission by being a catalyst for the generation of
traffic for these quality establishments (Chaly 2006).

157

Figure 5.4 Project with BTC Involvement (2)

Source: Author

To design standards for Bayonne’s struggling downtown, Mr. Chatham was
influenced by his experience while working for the famed New Urbanist firm Duany
Platter Zyberk, namely by the idea that one can write codes without any reference to
style. Mr. Chatham credits DPZ for another enduring lesson in guideline development:
categorically banning what is considered a serious infraction and being very flexible on
the rest of the issues, a lesson that he applied to the BTC guidelines. In other words, to
undo what is offensive, it is very likely that one has to do with what is mediocre. Mr.
Chatham’s strategy was also to encourage ‘clean legible design’ that incorporates
‘common sense’ use of features and materials, as I was informed by him.

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In the first iteration the guidelines were crafted as a simple, short document. Mr.
Chatham’s idea of the guidelines was that they should be clear and concise. Someone
who ‘landed from Mars’ should understand be able to understand them, he quipped.
During the process of guidelines development and in the attempt to integrate character
considerations, Mr. Chatham laments how the first version, a two page monograph
prescribing what is prohibited and what is encouraged, was superseded by a longer
version that diluted the clear intent of the original document.

Figure 5.5 Project with BTC Involvement (3)

Source: Author

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Guidelines. This approach to ‘common sense’ design that respected the historic
character of Broadway was endorsed by the city. The guidelines were organized in two
sections, a general requirements section with a list of desired features and a specific
requirements section detailing the intent of each requirement and ways to adhere to it for
renovations and new construction. If we analyze the guidelines Mr. Chatham prepared,
his approach of stipulating what is required and what is not acceptable becomes clear.
The guidelines call for such features as framing windows and storefronts (section
1-3), the requirement for retractable awnings (section 1-4), stone storefront bases (section
1-6), inlaid stone or tile areas at store entries (section 1-7), signage limited to awning
valence, glass, banners, hanging solid-type signs, and solid freestanding lettering
mounted on facades (section 1-9). On the other hand, the guidelines prohibit elements
such as neon signs, waterfall awnings, synthetic materials, mansard roofs, and simulated
shakes or shingles (section 1-8) (Bayonne Town Center).
But if we consider the guidelines from within the framework developed in the
previous chapter, it is clear that what is required or encouraged mainly has elements of
character-based guidelines. To define its objectives, the BTC created visual guides
illustrating ‘appropriate’ and ‘inappropriate’ examples of development supplementary to
the written guidelines. In a telling example of intentions, the inappropriate establishment
is described as a ‘Save-O-Rama’ which is ‘On Sale Every Day’, whose prices ‘Can’t be
beat’. The appropriate establishment on the other hand, is a ‘Market Place’ which sells
‘Fine Products’ (Bayonne Town Center). This obvious is an obvious preference for a
Delicatessen type business over a Dollar Store counterpart. From this and other

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illustrations, one can say that the ‘theme’ the BTC preferred for Bayonne is one as a
hometown, family friendly main street.
The character-based approach to the can be best defined as ‘Broadway
contextualsim’ or a design agenda that is referential to some the scale and element
features from Broadway’s pre-modern architectural stock. Most of the required elements
from section one reinforce this vision. The requirements call for columns to divide
sections of storefronts (section 1-4), materials such as brick and stone, tile, stucco or
painted wood (section 1-8). These can are a nod to the prevalent character on Broadway
and an attempt at contextual design. The least weight is put on style-based guidelines in
the form of historic mimickry of existing buildings. The requirement for cornices with
compound profiles and discouragement of materials such as aluminum (section 1-2) is an
attempt at a historicity in contemporary design (Bayonne Town Center).
Again in the specific section on renovation, some notable requirements such that
all elements of the storefront be coordinated with the building façade to develop a
coherent ‘streetscape’, the stipulation of large display windows, and designing for
retractable awnings all are prescriptions for decent design. The idea that new materials,
textures and colors should be carefully chosen to compliment the building façade and
adjacent structures has the goal of context in mind, while the restoration of cornices is
again a matter of historic authenticity. In the section on new infill buildings, it is required
that any new building should be similar in height, setback, mass, materials and colors to
the adjoining buildings. Buildings should be subdivided into vertical masses, but

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articulated horizontally with changes of materials or a cornice. These can all be
interpreted as being contextual recommendations as well.

5.1.5 The Politics of the BTC Design Review Process
The presumed convergence of interests between the city and the BTC and mutual
familiarity with each party’s scope of policy preference has led to the creation of a policy
process where discretion is large and control is nominal.
The design review process exhibits little control on agent drift besides the fact
that the consultants are most likely retained with city’s approval through selection
mechanisms. With the legislation of character-based guidelines, the BTC did not wish to
restrain itself in achieving its goals with the added burden of procedural controls. The
city’s interest in enabling flexibility through delegation and its close relations with the
BTC did not create countervailing pressures to limit discretion.
For the city, affording the BTC a large measure of discretion offered an
opportunity to tackle the potentially large margin of disagreement between applicants and
the city on design approach. For small-scale projects, the BTC was fearful that absent
proactive involvement, proprietors would simply defer to the judgment of contractors and
landlords, pre-empted by micro-managing the design process (Milder 2004a). This was
made possible more so by the fact that the process for design review is not specifically
detailed, other than the fact that the approval of Mr. Chatham, the BTC architect, is
required. This allows for an informal exchange to take place prior to the decision on the
proposal.

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On the other hand, since the guidelines simply did not anticipate the kind of large
scale development that the BTC had to contend with, the process opened doors for
unchecked discretion when it came to reviewing some of the larger new construction
projects. A more important route for discretionary conduct came in the form of the Jump
Start and Kick Start programs, where the city offered financial incentives in exchange for
larger involvement in development and design decisions. In a communication with Mary
Divock, the BTC director, I was told that in both programs, the BTC provides financing,
while affiliated architects consulting with the BTC provide design services and the BTC
facilitated the bureaucratic process.
Process. Starting with the administration of Mayor Joseph V. Doria, the city has
afforded developers the option of presenting their proposals to a Technical Review
Committee (TRC), as a forum designed to deliver ‘frank’ advice, before they go before
the planning or zoning board. Since acquiring design review authority, the Town Center
became a member of that committee, and it is foreseeable how this official presence
legitimates its relatively discretionary administration of the design review process.
Any given project, by virtue of its size and complexity, may or may not go
through a TRC process. In any case, the next step would be to gain the approval of the
BTC on design aspects of an application. The ordinance does not specify a particular
process of approvals. The BTC has instituted two alternatives. First, if a project goes
through the regular channels, then the BTC’s consultant’s approval is required (in this
case Mr. Chatham’s approval is required). If the applicant decides to make use of design
services offered by the BTC, then the consultant architect whom the BTC retains to

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provide services has the final word (at the time of the writing of this dissertation, the
BTC had retained Westfield Architects of Haddon Heights, NJ for that purpose). What is
important to note is that both routes are predicated on the approval of the respective
architect.
Designs are reviewed by Mr. Chatham or Ms. Westfield in the case of the Jump
start program. There is no specific process in place, and approvals are subject to a ‘sign
of’ by either consultant. In fact, the guidance to applicants explicitly names Mr. Chatham
as the only person with the authority to approve design (Bayonne Town Center). Both
consultants make use of this flexible process to ‘guide’ the design through the
development stages, in essence ‘singing off’ on each of the various stages of design
development.
According to Mr. Chatham, this is important because most of these property
owners have ‘zero design literacy’. Absent guidance, there was a perception that
applicants would simply allow contractors make all the decisions. Many business owners
also have minimal resources to turn their properties around. Also absent guidance, they
will simply work with what they have inherited, I was told by Mr. Chatham. By having
exposure to projects even before they have been substantially completed for presentation
as would be in a typical review process, projects are put on the ‘right path’ from the start.
In practice, the BTC reviews designs prior to them being taken up by other
municipal agencies such as the planning board or building department. Due to the fact
that the guidelines were presented to the city council but not actually approved by
ordinance, there was some confusion about their enforceability, as Mr. Chatham was not

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aware that they were enforceable by law. This might have had some effect of on the fact
that he rarely initiated any administrative or legal action against proprietors who did not
adhere to his comments. The retention of Mr. Chatham, the architect of the guidelines, to
administer the review process insured that the intent of the guidelines would however be
respected.
Bayonne, like many other cities, initiated an incentive scheme to stimulate
landlords to improve the external appearance of their buildings. The program, however,
was not being used to its fullest potential, and a study completed by the consultant
determined that the main reasons for this was that landlords, although interested in
improvements, did not have any particular idea about what design direction to pursue, the
process of hiring an architect or contractor, and the time to follow up on these issues, I
was told by Mr. Milder. This is how the idea for the programs labeled ‘Jump Start’ or
‘Kick Start’ came into being.
The Jump Start Program is a structured program that allows the BTC to
orchestrate façade improvements. The Bayonne Town Center marketed the program with
the assurance that participation resulted in direct approval for the design, a direct
incentive given the waste of resources that many landlords fear would result from a
protracted approvals process. By providing a rendering of the proposed improvements,
materials samples, and a cost estimate, the Jump Start Program aims to insure that design
intent is carried through by the landlord while being sensitive to budget constraints. The
program also helps landlords retain an architect to do the construction drawings, a

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contractor to do the improvement work, and more importantly, apply for funds from the
City of Bayonne’s Façade Improvement Program and other sources.
For more extensive projects, the Kick Start program awards property owners
funds through a local non-profit housing developer, the Community Preservation
Corporation (CPC). The CPC will produce feasibility studies that will detail how many
residential units might be built on their property, the types of units that should be created
and cost estimates for the project (Milder). In both these cases, Mr. Chatham would defer
judgment on proposals to the consultant retained by the BTC to provide these services.

5.2 The Politics of Design Review in Maplewood
5.2.1 Snapshot of Maplewood
In 1838 the Morris and Essex Railroad created a ‘flag stop’ at the location of what
is today Maplewood station (Noble 1961). In the 1860s, John Vose, a New York attorney,
started to purchase large agricultural lots in South Orange and convert them to residential
parcels, initiating a development dynamic that, though initiated by single homeowners,
was to transform the area from an agricultural hinterland to a suburban commuter
community (McMurray and Gelston 1992).
It was not until the early 1900s when Springfield Avenue became an iron bound
stage-coach stop locally between Morristown and Newark, and regionally between New
York and Philadelphia that the size of the local population surged dramatically,
increasing from 5,000 and reaching 21,000 in 1920. After this ‘build out’ of Maplewood,
comprehensive land controls became necessary (Noble 1961). It was then in 1922 that

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Maplewood, once part of the Village of South Orange, was incorporated (ibid).
In the building ordinance of the 1920s, Spanish, Tudor, and Bungalow styles all
became ‘fair game’ in an early eclectic moment (Phillips Preiss Shapiro Associates
2004). A dramatic surge in speculative building in the 1920’s demanded quick
government response, which came in two forms. First, a zoning ordinance was put into
effect. Secondly, a building code stipulating that no two adjoining homes should be built
in the same style also became law. The intention behind this ordinance was to prevent
profit-minded developers from pursuing a ‘cookie-cutter approach’ to development
(Phillips Preiss Shapiro Associates 2004).
The zoning ordinance received another major update in 1965. Soon after that, it
became clear that as a tool of land management, the ordinance was inadequate in
addressing the many challenges that lay ahead. By 1981, the traditional businesses (e.g.
the local hardware store, pharmacy, etc.) that catered to the needs of local residents
succumbed to a ‘new retail’ economy whose main protagonist was the out of town ‘big
box’ retailers, as I was informed by Ms. Virginia Lamb-Falconer, former director of the
MVA.
The early development of Maplewood was around three commercial corridors: the
village center on Maplewood Avenue, Springfield Avenue, and Milburn Avenue. In
many ways the divergent paths of commercial development along Maplewood Avenue
and Springfield Avenue have shaped local values as to the attributes of ‘desirable’ and
‘deplorable’ patterns of development. The history diverges very early on. When the
Morris and Essex Railway constructed its Maplewood Avenue stop, the rural landscape

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of the First Mountain became conveniently in reach of wealthy city dwellers seeking
scenic retreats, around which they built their country homes.

Figure 5.6 Maplewood Avenue, Maplewood (1)

Source: Author

The convenience stores of (what was then) Jefferson Village now shared the strip
with stores catering to the indulgences the area’s newest patrons. On Springfield Avenue,
originally the Newark-Springfield turnpike, eateries, light manufacturers, and trade shops
sprouted and thrived. Till this very day, this ‘high end’ ‘low end’ distinction’ persists, but
the idea that not one of the avenues had a unifying architectural character is also
conceded to.

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Figure 5.4 Maplewood Avenue, Maplewood (2)

Source: Author

5.2.2 The Politics of Discretion in Maplewood
The purpose of this section is to illustrate the regulation, delegation, and agency
constraints whose consideration is illuminating of the form the design review process in
Maplewood took.
Regulation. The impetus for regulation in taking up the issue of design review
derives from city hall’s goal, pursued in what it saw as the public interest, of maintaining
a ‘unique’ Maplewood Avenue free of dilapidation. This goal traces back to the sequence
of events, which I described in a previous section, that over the decades of the postwar
years created conditions of blight and disinvestment in neighboring cities. The city’s
master plan from 1984 summed up what the community expected of the area. It was
hailed for its lack of serious concentrations of blight and substandard conditions.

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Maplewood Ave was described as a high quality commercial area that needed little
expansion, but required controls on signage and appearance to maintain its allure (Queale
and Lynch Associates 1984). Recommendations were made that deterioration be checked
by a marshalling of civic pride through neighborhood associations (ibid).
The immediate effect of these structural transformations in the economy was
acutely felt in town as the recession of the early 1990s initiated a sequence of events that
was feared to alter Maplewood Avenue’s character as a ‘charming village center’. This
stoked local fears that the character of the village might change as bankruptcies ended the
presence of longtime businesses, I was told by Mr. John James of the MVA in an
interview. Some of the worst fears started to materialize, with vacancies being scooped
up by stores of the dreaded ‘neon’ sign variety, I learned in an interview with Amy
Koehler, director of the MVA. At this juncture in the city’s history, the concern for ‘place
making’ clearly trumped other considerations, recalls Virginia Lamb-Falconer, former
director of the MVA in an interview.
At some point later in the decade blight seemed like it had reached the doorsteps
of Maplewood. Early on, a ‘Downtown Empowerment Group’ was formed to confront
the fate of downtown, but soon folded because it did not have the necessary tools and
skills to deal with an issue of this magnitude (Ragozzino 1996f). Given the fact that
Maplewood businesses were owned by out-of-townsmen, further private initiative did not
materialize. It was then that the city decided to take action. As then Mayor Profeta
declared emphatically, the main goal was to preserve the character of the township
(Ragozzino 1996f). This distinctive character was alternatively described to me in an

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interview by Mr. Jack Ryan, former member of the Maplewood planning board as
charming ‘village’ like atmosphere.
Concerns about dilapidation in Maplewood came to the fore in a cruel fashion
when a township resident was killed when a portion of 147-49 Maplewood Ave. (Bill and
Harry’s) collapsed on him, triggering an urgent need for action into more than streetscape
improvements (Maplewood News-Record August 12 1999). Locals appreciated the
character of the district and wished to preserve it, stressed Ms. Allison Ziefert, former
director of the MVA in an interview. When the ‘nth’ nail salon put on the neon flickering
sign, this seemed to have catalyzed a collective need for action. Thus although the mix of
business was not what residents wanted, there was also palpable concern about character
issues , I was told by Ms. Elizabeth Davenport, previous board member of the MVA.
Given the failure of the early voluntary initiatives, the local political and cultural
gatekeepers took their campaign to city hall.
Delegation. The impetus for delegation stems firstly from the city’s desire to
address its inability to meet the costs associated with design review, secondarily from its
desire to benefit from the expertise of neighboring towns with SIDs, and lastly in staying
clear of the controversial issue of design regulation.
The cost component relates to an issue that has always hampered Maplewood’s
efforts at land and development management: its relatively small size and want for
professionals who could tackle an issue as specific as design review. Historically there
existed for a short while a design review and beautification committee which ruled on
proposed signs in the district. This was the closest thing Maplewood had to design

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review, concluded Elizabeth McDonald, director of the Springfield Avenue Partnership in
an interview. The sign ordinance, though on the books however, was rarely enforced.
Even the application of the zoning ordinance was for the longest time ‘very sketchy’
admitted Mr. Ryan.
The city had for a long time also considered establishing a Historic Preservation
Commission, a type of regulator whose powers are clearly delineated in MLUL
(Maplewood News-Record December 2 1999). The city retained consultants to further
this project as I was told by John Branigan, member of the MVA board and author of the
MVA guidelines in an interview. Over time, onerous and time consuming procedures for
surveying buildings and designating areas as worthy of preservation inflated the budget
for this project beyond feasibility. The city’s wariness of the costs of regulatory authority
derive partially from this experience with not being able proceed with this project.
The perception of the immunity of the SID arrangement from costly legal
challenge was also an important factor. MLUL, the state act enabling land use control,
was a product of an era where design was not as central to the planning enterprise as it
had become in ensuing decades. The authority to regulate design in MLUL is thus not
explicit. Most local politicians were under the impression that MLUL did not allow
municipalities to control the aesthetic appearance of buildings.
The New Jersey Redevelopment Act gave towns powers to redevelop ‘blighted’
areas, but courts have generally not been supportive of ‘underutilization’ argument of
blight. This uncertainty about the legal basis of design regulation and the subsequent need
to retain professional and legal consultation to design a process that would stand legal

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scrutiny and hedge against possible challenges and associated costs was one of the
reasons that dissuaded Maplewood from setting up a public process, I was told by Ms.
Lamb-Falconer.
The downtown area’s failure to attract ‘strong’ merchants and its lack of a clear
sense of purpose, vitality, and community character and the city’s slow response also
hastened its retention of a consultant to investigate the idea of an SID (Manzo 1996).
Those residents and local politicians in favor of an SID argued it would be more
committed to downtown design than the city, and the city conceded. The consultants
naturally stressed the argument of expertise.
At the time of the inception of the SID and the drafting of the guidelines, many
neighboring municipalities had put in place revitalization plans of their own through
public-private partnerships. It was then that South Orange unveiled its long anticipated
downtown revitalization linchpin, the Performing Arts Center, funded with a state grant
(Maplewood News-Record July 8 1999). The Bears Stadium, also an important element
in Newark’s revitalization, opened for its first game in front of sellout crowd (Maplewood
News-Record July 8 1999). Public investments also accelerated pace, with the South
Orange, Irvington, and Newark train stations selected for renovation through a ‘model
station’ program. The interests behind the MVA cited these developments to press for a
unique private-public cooperation in Maplewood as a legitimate process for urban
regeneration.
Setting aside the arguments of cost and expertise, the controversial nature of
design regulation in its own rights made a case for delegation a lucrative option. In New

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Jersey, where municipal proliferation abounds and ‘home rule’ reigns, the natural
gravitation of social and cultural groups to different municipalities had made the need for
design regulation superfluous. In fact, design control had always been approached with
suspicion as a ‘fascist’ enterprise, elaborated Mr. Ryan. SID-administered design review
afforded Maplewood the chance to deflect having to claim authorship of this
controversial program.
Agency. As for issue of agency, it is important to keep in mind that the creation of
the MVA as a design review authority in Maplewood was a township-led effort to
preserve what was perceived to be a vibrant, charming downtown area threatened by
dilapidation. Snippets from the MVA’s history are a testament to this city spearheading
of the plan. Empowering a business group which did not initially show interest in the
program brings to the fore issues of congruence of preferences and the need to account
for multiple principals.
Early on, Maplewood residents recognized that the real issues lay in the fact that
economic restructuring have made for a shift from a retail to a service economy, all
which created uncertainty and volatility, I was informed by Mr. James, chairman of the
MVA board in an interview. ‘Laissez Faire’ inaction on the condition of downtown
needed to be addressed as the downtown area started to look ‘tired’, I was told by Ms.
Davenport. Predictably, the commitment of business owners to the MVA was less
unanimous that in the case of Bayonne.
The legitimacy of the SIDs was at first suspect as many, if not most merchants
opposed it since it was perceived to add another layer of bureaucracy to land use

174

management. Many business owners, such as Samuel Sirota, protested the increased tax
burden. Others suggested investigating other avenues, such as the Main Street Program,
where funding is provided by the state, and organization is strictly voluntary (Ragozzino
1996f).
One of the main goals of a program of action was to attract quality retailers. Since
less than 25% of properties were owned by locals, it was necessary to create a mechanism
that would compel owners into action, I was told by Mr. James. The Chamber of
Commerce was initially not very interested in the idea of an SID considering that it
would mean an increase in the tax burden, I was told by Ms. Ziefert. Though the advent
of the MVA did raise rents in area, MVA officials were adamant that it did not make
Maplewood less affordable, I was also told by Mr. James.

5.2.3 The Politics of the Legislative Dimension in Maplewood
As illustrated, the township’s rationale for delegating design review stemmed
mainly from cost considerations, and less so expertise and responsibility-shifting
considerations. These rationales for delegation make a compelling case for discretion.
Non-withstanding these pressures and the regulatory interest in discretion, details of the
legislative dimension of the MVA exhibits the concern for agency issues demonstrating
the uneasy working relationships between the city and the business community.
When input from local residents was touted, they enthusiastically expressed
obliged and expressed opinions on the issues under consideration. In a meeting with the
public held on February 8 1996 to discuss the MVA, then Mayor Profetta proclaimed that

175

the MVA’s success would be a ‘whole township effort’. Input from residents was sought
in a two month long field process (Maplewood News-Record February 22 1996). During
the public communications process, the Atlantic Group recommended preserving the
village’s architectural fabric and district vitality, reflecting community character, history,
and outdoor dining to add vitality and business appeal (Ragozzino 1996c). Residents
expressed concerned for issues such as parking, and cleanliness, but also more
importantly issues of physical nature such as conditions of awnings, facades, and
maintenance (Manzo 1996). The township acted to confront the challenges of a declining
downtown by instituting design review and delegating it to the private-public MVA. The
MVA had decision-making in addition to review authority.
In terms of expertise, SIDs were seen as being a better approach to development
since people who are assessed would naturally demand better results, and ‘put their heart
to it’, Ms. Lamb-Falconer communicated to me. Encouraged by efforts in neighboring
townships, Maplewood decided to investigate the possibility of a local SID (Maplewood
News-Record July 8 1996). The township invited officials from neighboring suburbs’
SIDs, and visits by Cranford’s Meryl Layton and Millburn’s Tara Brodish (respective
SIDs’ directors) early in the formation process were instrumental in helping Maplewood
understand how an SID can reduce vacancies, serve as a negotiating center for business
development, and help in beautification (Maplewood News-Record July 8 1996).
The town created an SID oversight committee, and retained Mr. Don Smartt of
Creative Services and the Atlantic Group as advisors. The Atlantic Group surveyed
members of SID oversight committee, residents and merchants. It ran working sessions

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were they solicited public input (Ragozzino 1996a). It also aimed to educate merchants
about the idea of the SID as a ‘town within a town’. Originally, an SID was one of many
ideas under consideration, but eventually the proposal became the only real contender
(ibid).
The issue of delegating the administration of a contentious issue was especially
appealing though, and an SID vehicle had the added advantage of design review being
packaged as form of local ‘self-help’ and ‘self-determination’. The SID had a justified
‘interest’ is in place making, and design regulation is a tool to that effect, I was told by
Mr. Ryan and Mr. Branigan.
The township allocated seed funds for feasibility studies and hired an architect to
prepare them. When the first board was formed with two residents, two merchants, and
two property owners, the township offered seed funds to help the fledgling organization
through its first year (Maplewood News-Record July 8 1996). After the first year the SID
was expected to become self reliant for financing its operations, including design review.
The town considered various courses of action according to Ms. Lamb-Falconer. One
option that the city considered was the Main Street Program, but decided it was more
suitable for larger cities with a veritable inventory of historic structures, and might prove
controversial in Maplewood who is not endowed with the same, mentioned Ms.
Davenport.
In the final assessment, the legislative independence of the design review agency
from government and the extent of its decision making authority was however tempered
by agency considerations. The fact that the SID was instituted to a great extent primarily

177

to confront the issue of design regulation as a catalyst for business promotion
necessitated however that government keep some measure of control over the
organization. The same can be said of the fact that it was primarily a resident, and not
business led program.
When plans for incorporation became concrete, city officials touted the SID as an
organization that will function as the building department’s ‘eyes and ears’ (Maplewood
News-Record May 8 1997). These constraints are reflected in the fact that four members
of the board of directors are appointed by the township committee, which makes the
MVA akin to a private-public organization. As to the issue of guidelines, although the
responsibility of developing the code lies with the MVA, any design guidelines
promulgated had to be first approved by city council before going into effect.
Early on, the program on streetscape improvements, such as street lighting, and
the launch of the façade grant and loan program were two major efforts in that direction
that established the MVA’s credibility and commitment to the goal of design
improvements (Ragozzino 1996e). The MVA assumed the responsibilities that the sign
committee had once it was formed. Soon after its inauguration, it became clear that the
potential conflict between an existing (but ineffectual) beautification committee and
MVA must be resolved, which lead to the eventual dismissal of the former
4
. The MVA’s
efforts were paid off when they attracted outside investors. When Saul Fischer of Sovan
Associates purchased 166, 177,178, and 180 Maplewood Ave. (Maplewood Matters
1997), he cited the MVA’s efforts in maintaining the unique character and village

4
Maplewood Planning Board, Board Minutes, October 10, 2000.

178

atmosphere of the village as incentives (Ragozzino1997). In the end, the argument
prevailed.
The legislative dimension. The township committee has instituted oversight over
the MVA’s affairs by mandating that at least two members of the board of trustees
represent the city, one being a member of the committee, the other a member of the
planning board. The MVA annual budget is voted on and approved by the committee,
and a public hearing on thereon is mandated. The ordinance also calls for a yearly audit
of the MVA
5
. Adoption of the design guidelines follows regular process of adopting any
ordinance. This requires one public meeting and an up and down vote in the council, I
was told by Mr. Ryan. The ordinance does not prescribe a design review process. The
ordinance creates a route to appeal the MVA’s decisions to the planning board.

5.2.4 The Politics of the Maplewood Design Guidelines
Non withstanding agency issues, regulatory and delegatory considerations exerted
discretionary pressures all finding expression in the theme-based guidelines that were
promulgated. The complexity of the task of safeguarding the character of a district not
endowed with a distinguished building stock precluded the possibility of drafting a
precise policy document and hence created the preconditions for discretion.

5
Maplewood Municipal Code § 237-1.

179

Figure 5.8 Project with MVA Involvement (1)

Source: Author

The concern was for formulating the right types of controls for an ‘aesthetically
pleasing’ town center (Ragozzino 1996f). The task of drafting the standards fell unto Mr.
John Branigan, long time resident and design professional. Echoing Mayor Profeta and
the general local inclination, Mr. Branigan stated that he mostly had in mind guidelines to
preserve the feel of a ‘village’ on Maplewood Ave. (Maplewood News-Record May 8
1997). Since Maplewood Village featured a ‘hodge-podge’ of styles, the township did not
wish to impose a style-centered ordinance. When writing the guidelines, the idea was not
to impose upon the village an image it did not have, just because the consultants thought
that this is a good idea, or that the demands of the market were such, stated Mr. Branigan.
Put otherwise, the MVA was not interested in any particular style, but in maintaining
‘tasteful’ design, as Ms. Ziefert put it.

180

Figure 5.9 Project with MVA Involvement (2)

Source: Author

The theme-based guidelines that ensued called for the creation of an environment
that had the character of a ‘charming compact village’. An important component for the
rationale for delegation was expertise, and imprecise policy would allow the MVA to
exercise this expertise. For a township that was not endowed with a building stock such
as in Bayonne, the political and bargaining costs for arriving at consensus on a stylized
vision for place in the township committee were also prohibitive. The sentiment amongst
town officials was that large-scale or themed developments such as those prevalent in
places like Southern California planned communities or more recently in New York were
‘boring’, artificial places, said Mr. Ryan. The MVA was not to replicate a Times Square
type strategy, which was viewed as resulting in a spectacular, but ultimately not very
substantive type of development, also mentioned Mr. James.

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Figure 5.10 Project with MVA Involvement (3)

Source: Author

But the township’s stated imperative for regulation in Maplewood was a public
response to a crisis perpetuated by the infiltration of the downtown district by unwelcome
businesses. The control over the design guidelines promulgated in the name of the public
interest was achieved by the fact that they could only be ratified by a vote in the township
committee. To deal with the issue of agency drift, the guidelines attempted to be as
precise as possible with the building elements for which precise language can be written,
such as storefronts and signage.
Guidelines. The search for a framework of guidelines that addressed these
concerns prolonged the development process (Maplewood News-Record October 14
1999). The MVA finally adopted the design guidelines on July 6
th
1999, some three years

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after the MVA’s inception. Again adopting the framework of guidelines developed
earlier, in general the theme-based guidelines indicate that the intention of the review
process is to preserve the village as a ‘charming’ and ‘intimate’ business district
(Township of Maplewood 2002). The design standards are mainly textual guidelines that
cover eight concerns: style, materials, colors, buildings, grandfathering, demolition,
vacancy, and signage and graphics. Roughly speaking, the first four concerns have
guidelines that can be described as performance guides, while the last four are
prescriptive.
The best way to describe the first four concerns, which pertain to new
construction, is as including a performance guideline, possibly paired with a description
of what is prohibited or required in the interpretation of the guidelines. Some of the
guidelines for the first four concerns are the following: all work must be visually
compatible with the existing buildings in the district (style); new construction must
employ materials used in existing structures (materials); colors must be compatible with
that of the materials of the building and adjacent buildings (colors); and new construction
shall be visually compatible with other structures in the district and shall be constructed
of complementary materials. For signs and awnings, and the last four concerns, the
guidelines are markedly more technical, with such stipulations as graphics having to
occupy less than 25% of window area and signs less than 75% of fascias. The standards
are exhaustive, tackling the gamut from window proportions to trash cans (Township of
Maplewood 2002).

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To legitimate the guidelines it crafted, Maplewood mainly relied on the
experience of its design team and model codes from nearby cities. Given this uncertainty
about an overarching ‘theme’ for Maplewood Ave., the guidelines in the final assessment
relied heavily on the interpretation of ideas of compatibility, connectivity, and contextual
continuity. It was just simply too difficult to create guidelines that can dictate the
character that was being aimed for, assessed Mr. James. The strategy was to borrow from
the languages of other ‘model’ codes. When Mr. Branigan helped craft the guidelines, the
main ideas were borrowed from Princeton’s façade grant program, recalled Ms. Ziefert.
Incidentally, Mr. James was also a consultant on Millburn historic preservation
committee. Millburn was one of the first townships to delegate design review to its SID,
though its program soon ended because of financial difficulties. Millburn’s guidelines
were inspirational for Maplewood as well.

5.2.5 The Politics of the Maplewood Design Review Process
The public interest in maintaining a ‘charming village’ character, expertise and
responsibility shifting considerations if they were ideally the sole determinants of
discretion would imply a highly discretionary process. Agency considerations however
necessitated controls over MVA activity. The MVA considered administering the design
review process one of its top priorities, and it is clear that from the inception of the
program it intended to exercise some discretion in that regard. The MVA was clear in its
sense of mission, and it legitimated its intervention on grounds of expertise.

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Early on in the planning stages, Mr. Branigan was clear to indicate that though the
MVA was ‘not hired guns or trying to be nit-picky’, there was going to be standards non-
the-less (Ragozzino 1997). After a year of experience with the design guidelines, the
MVA went back to the city council to change some design standards that it saw as being
‘overly restrictive’, presumably restricting both the applicant and the MVA
6
. The MVA
staff was composed of individuals deeply concerned about issues of architecture and
planning. Allison Zeifert, the MVA’s first director, was a graduate of Columbia
University with a degree in architectural history and urban planning. Later on although
subsequent directors were not professionals, they served during the tenure of architect
John James at the helm as MVA chairman. The long time design committee chairman,
John Branigan, is a reputed environmental graphics consultant.
As mentioned in the previous chapter, the decision not to adopt style-based
guidelines resulted in granting the review agents the authority to make judgments as to
whether proposals met the code. Given the need for this latitude, city oversight over the
process came in the form of procedural controls. To satisfy the constraints of the public
interest in character setting and aligning the interests of the MVA with that of
government though, two types of procedural bounds on discretion were instituted:
institutional checks and recourse to appeals.
First, the full board of the MVA, which has members appointed by the township
in its ranks, has to vote on any proposal for final approval. Although the MVA is free to
administer the code as it sees fit, it has instituted a process that resembles a municipal

6
Maplewood Planning Board, Board Minutes, file October 10, 2000

185

review process. The MVA design committee is the equivalent of a municipal design
review board in its advisory role, while the MVA board is the equivalent of a planning
board its decision making role. City officials are copied on most of the important
correspondence with the applicants. This is because in many cases the same application
has to be submitted to the planning board and the building department, which creates a
need for coordination. This makes for an ‘unofficial’ monitoring of SID actions
(Township of Maplewood 2008).
All applicants are required to submit documents specified on a checklist, and all
applications are considered by an MVA design review board, which is composed of a few
members of the larger MVA board. Even when there is support for a project, approval is
withheld until all documentation is submitted. In cases where material is lacking,
discussion is almost always postponed.
Second, any applicant has the right to appeal the MVA’s decision to the planning
board within a predetermined time period. Though the recourse to appeals is optional in
the enabling legislation, it is required by the city. The threat of an appeal theoretically
would have enticed the MVA to rule on proposals within the boundaries of acceptable
interpretation of the guidelines. More generally, the requirement that each SID submit a
yearly report with its activity for the year creates the basis for an assessment. This is
important since the MVA comes up for reauthorization every five years and hence could
form the basis of the denial for reauthorization.
Process. The Design Standards for Maplewood Village (2002) set out to delineate
how an applicant can expect the design review process to unfold. First, the MVA clearly

186

stipulates that design review would run concurrent with review by the planning board and
building departments. The review, it is stated, is expected to take two weeks. One week
would be for approval for the design committee, and another week for final approval by
the MVAs board of directors. Secondly, when completed application is received, the
applicant is scheduled for a brief presentation before the design committee. The
committee can then tentatively approve the project, tentatively approve it with changes,
or not recommend approval to the board of directors.
To insure approval, the applicant is encouraged to discuss their plans with the
MVA prior to submitting an application. In order to make a determination, the MVA
requires ‘sufficient’ information to be able to decide what the project looks like, stated
Ms. Koehler. These requirements are listed on the Design Review Application form.
Thirdly, the when the project comes before the MVA’s board of directors, the board is
however required to vote on the proposal. If it is denied, then the board is required to
furnish the applicant with a letter setting the specifics forming the basis of denial. Finally,
any applicant denied an approval may appeal to the Planning Board within twenty days of
the rejection. The design review process is therefore in essence a two step process with
two up and down votes, one advisory and the other binding.
Technically, the MVA’s design committee meets in the offices of Mr. James,
architect, and Alliance chairman, stated Mr. Branigan. It meets once a month to decide
applications. It is unlikely to have more than one or two applications discussed per
meeting, stated Ms. Koehler. This is not to say that approvals cannot be a protracted
process. A gift shop that was applying to become a theatre had to endure a 3 month delay,

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mentioned Ms. Koehler. Although the SIDs are not required to abide by the Open Public
Meetings Act, SID directors have indicated that they would be willing to make minutes
available upon request. Members of the planning board did however concede that
accountability can be ‘translucent’, stated Mr. Ryan.

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Chapter 6. The SIDs’ Design Review Processes in Practice
In the previous chapter, I applied an analysis of political imperatives to propose
that although the enabling legislation allows for the possibility of extensive oversight by
the locality of an SID‟s activities in administering design review, practical considerations
might have necessitated otherwise. Given a sample of projects that have come up for
review in Bayonne and Maplewood, the discussion in this chapter will probe substantive
and procedural issues that this margin of discretion in SID-administered design review
raises
1
. In the previous chapter, I have shown that the SIDs made use of the latitude given
to them in setting policy through guidelines promulgation. The evidence suggests that the
SIDs also engaged in a pattern of proactive involvement in design and administration that
may supersede the typical role of regulatory agency.
In the substantive dimension, my reading of the BTC‟s record of administering
design review leads me to raise questions as to the extent the SID was faithful to the
intent of the character-based guidelines. Questions arise as to whether the BTC in some
cases interpreted the guidelines an excessively traditional lens beyond what the
guidelines call for. These concerns gain more urgency given the lax procedural controls
that characterize the process and have important implications for the assessment of
delegation.
As argued earlier, the MVA guidelines are typical of what I define as theme-based
guidelines, the theme being of “an intimate, charming, tightly defined, pedestrian

1
The issue of accountability pertains mostly to the legislative dimension and the record from the
administration of design review is most revealing of the latter two considerations.

189

oriented business district” (Maplewood Village Alliance, ii). Although theme-based
concerns did figure in the decisions the MVA made vis a vis improvements in the district,
questions can be raised as to whether the guidelines were however interpreted narrowly
by the MVA more akin to character-based guidelines, the specific character ideally
sought deriving from a „European-chic‟ aesthetic.
In the procedural dimension, my interpretation of cases that have come before the
BTC and the MVA reveal a pattern of discretionary review that makes for proactive
involvement which supersedes the typical roles of a regulator in design review. The BTC
and the MVA in many ways assumed both roles of a regulator and a partner in design
development. In both cases, discretion in the interpretation and administration of
guidelines raises important questions about representation and due process.
As a control group, I also present in this chapter a brief overview of two SIDs that
have adopted style-based guidelines, two cases of municipalities with public design
review boards, and Maplewood‟s other SID, the Springfield Avenue Partnership. The
analysis from the SIDs with style-based guidelines reveals that SIDs can design and
enforce very prescriptive guidelines. My impression of the record from municipalities
with design review boards is that these boards generally act in conformance to the
expectations of the typical role of a regulatory agency.

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6.1 The Process in Bayonne and Maplewood
6.1.1 SID-administered Design Review in Bayonne
In Bayonne, the BTC afforded applicants two avenues for design review.
Applicants who wished to retain their own architects had their proposals reviewed by
architect Walter Chatham, the consultant retained by the BTC. The BTC also
administered the „Jump Start‟ program which offered applicants free design services.
Those who wished to make use of the Jump Start Program benefited from the design
services of a consultant, currently Westfield Architects and Preservation Consultants
(Bayonne Town Center).
The incentive for acceding to the Jump Start program is that those applicants
whose final designs remained faithful to the conceptual designs produced by the
Westfield Architects were guaranteed smoother approval of their projects by the BTC.
The following is a description of the substantive goals and procedural history of some
projects that came before the BTC. All the information in this section and the one
referencing the MVA are synthesized from information by SID staff in reference to
project application files of the BTC and MVA
2
. The identities of the projects were made
anonymous upon the request of the SIDs so as not to divulge the identity of the actors
involved. The reader is referred to the SID websites for images of projects completed
with SID involvement.
Project A, a major medical and office building, was one of the largest
developments to be considered for Broadway in years and one of the largest to come

2
The City of Bayonne. Bayonne Town Center. Design Review Application Files.

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before the BTC. The goal for the owners was to construct a first class facility, which
included commercial retail on Broadway, and a parking structure below floors that
housed offices and suites above. Looking over early designs, and in deliberations with the
architects, Mr. Chatham‟s input concentrated on attempting to preserve the integrity of
the streetscape while accommodating the larger building.
Consensus converged on the idea of the introduction of a historic street façade at
the pedestrian level and setting back the rest of building in a dramatic way. It was also
suggested that the architects should consider eliminating „heavier‟ materials such as brick
from the upper stories and consider introducing „light‟ materials such as architectural
metal panels to help make the streetscape at the base the only „solid‟ structure, diverting
attention from the rest of the mass. This would mitigate the effect of the building feeling
like a large mass jammed up right against the sidewalk, or what Mr. Chatham referred to
as the monster building problem. To duplicate the effect of the pedestrian scale
streetscape, it was suggested that the rooftop details be refined as an urban silhouette.
Process-wise and after receiving preliminary drawings, Mr. Chatham produced a
series of sketches to tweak the initial design and suggest preserving the Main Street feel
of Broadway by a series of architectural adjustments to the original proposal. Solutions
for the gap or proposed split in the mass discussed above, such as air slots and building
façade lighting were also proposed. In order to „dematerialize‟ the building as much as
possible, the bulk of the high-rise was to be treated as a floating mass of glass without
clear scale to dilute the visual continuity with the streetscape.
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Here also Mr. Chatham recommended light-colored silver reflective glass
combined with reflective panels and sunshades to render the floating mass a neutral field
in order to detract attention from it. The individual occupant room windows were to be
blended in to create a more scale neutral composition appropriate to the larger urban vista
and context. Also as mentioned, the roof top masses were also to be treated as separate
small scale elements to breakdown the mass of the building.
Project B was a first floor commercial property that was to undergo renovation
and a possible addition of a second floor with new dwelling units. In the design
refinement involving the BTC, one can trace the incorporation of recommendations from
the guidelines in improving the original generic brick structure. The first major redesign
involved giving greater depth to the elevation. The gradual setbacks on the elevation
form one storefront to the other was sought to achieve this. In the refined design,
substantial brick piers were introduced as well.
With the cornice at the top the façade changed from wood to cast stone
ornamental molding, the effect of crowning the façade and establishing a „stopping point‟
for the viewer‟s eye is achieved. The introduction of a brick course that demarcates the
top line of building also fulfills the requirements for horizontal demarcations on any
building taller than two stories as per the guidelines. The new design also features the
elimination of cast stone sills form the window frames on the second floor. Finally, the
decision was made to replace brick with cast stone masonry.
In terms of process, Mr. Chatham tried to achieve as much conformity to the
guidelines as possible through „best practice‟ design decisions. The BTC, working
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closely with the city‟s office of community development, the zoning office, and urban
enterprise zone created a broad range of technical assistance and financial incentives
programs that assisted the proprietor in order to encourage him to invest in Broadway.
Most of the constructive comments that the BTC afforded the proprietor were
through the TRC process. In the post-TRC phase, the city zoning officer advised on
matters relating to variances for a reduced rear yard and a number of parking spaces. The
city engineer advised on issues pertaining to the drive aisle, perimeter lighting, site
boundary fence, and street trees. Although the city planner instructed the applicant to
liaise with the BTC for approvals, many of his comments also pertained to design issues
such as the perimeter decorative iron steel fence and elevation.
Project C is a new medical building with retail on the ground floor. The building
features a classical retail base-midsection-top section arrangement differentiated by
materials and a gradual increase in fenestration. Attention to traditional details such as
arched storefronts, cornices, and window proportions is apparent. The BTC‟s design
input focused on demanding more fenestration on the midsection. To render the project
more contextual, the architect was asked to refine the design of the upper cornice line to
provide additional visual interest through ornamentation. The same idea was to be carried
through with materials and color scheme.
In terms of process, the architect was advised in exchanges with Mr. Chatham to
refine the appearance of rear wall appearance on the upper floors to include more
articulation. The architect was advised that minor revisions such as an inlay or other
false work to provide a minor change in plane and visual relief achieve that goal.
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Similarly, the use of recessed lighting at the upper floors levels instead of façade
mounted wall scones to reduce visual clutter was also advised. Also from a
pedestrian/shopper experience perspective, it was agreed to define sill heights for
storefront window units. To animate the entrance, the architects were asked revise the
design of the entrance to make it more of a visual focal point.
Project D is a coffee and ice cream franchise of a national chain on the property
where a local restaurant was originally located. Without prior consultation with the BTC,
the proprietor‟s architect finalized a design that featured a new canopy made of very
commercial composite materials, large lettering identifying the establishment and a very
sizable and prominent object-banner „hanging‟ from the corner of the Building.
The proprietor did not anticipate that his proposal would not be received
favorably because in his assessment of the guidelines he was not deviating considerably
from existing conditions as his new design conformed, in location and volume at least, to
the existing canopy. The owners‟ architect felt that the design will be aesthetically
pleasing and relate well to the existing neighborhood. The BTC saw things differently
and worked with the architect to change the design of the object-banner to be more
suiting of the scale of Broadway. The final design incorporated many other
recommendations including a simple, elegant awning, reasonably sized and placed
lettering and logos, and goose neck lighting. Process-wise, Mr. Chatham instructed the
BTC director to notify the applicants that revisions to the commercial „EIFS‟ material,
the „fubble‟ canopy, and the need for approved exterior lighting are required to make the
proposal in scale and appearance consistent with the guidelines.
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Project E is a multi-tenant commercial building built with a „modernist‟ aesthetic
erected more than 30 years ago. The proposals called for contextualizing the design
within the parameters of the Broadway aesthetic with inspiration from the traditional
early century building stock. The details of the renovation included refinishing the
structure with a stucco-like material, partitioning the undifferentiated field on the second
floor into bays, and raising the building corner.
Project F is a general merchandise business establishment that was due for
remodeling. The existing façade featured a blank stucco field framed in aluminum trim
and featuring the prominent lettering. The proposed design featured a striped awning,
brick-like materials, Main Street compatible signage, a cornice element, and two
symmetrical windows in the previously blank field.
Project G is another commercial establishment where the planar façade element
was thoroughly redesigned featuring recessed panels and pyramid shaped corbel
supports. Project H is another multi-tenant commercial building. In receiving a facelift,
some features of the original building were retained, while others were altered. Although
the central bay with the arched shaped „bris-soliel‟ was retained, the storefronts flanking
the bay with the blank brick piers were with canopies and framed windows.
Project I is another rejuvenation/ wellness commercial establishment. The original
plain façade lost its integrity over time as bubble canopies and window A/C units were
added. Westfield Architects worked with the owner to incorporate a traditional striped
awning, ornate wooden columns, a new gold leaf wooden sign and incandescent lighting.
The same is true of Project J, a restaurant establishment. In the upgraded design the
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bubble canopy, neon signs, and iron gates were done away with and the proposal featured
a symmetric design, arched windows and doors, recessed panels accommodating those
windows, and a cornice feature. It is clear though that in the final design cost
considerations did not allow the remodeling of the windows, nor the inlays. In Project K,
an appliance store building, the proposed design featured the addition of ornamental
cornices to frame the signage area.
Project L is a prominent fast food restaurant on Broadway. The proprietors had
served the community on Broadway for the last 35 years until increased competition
necessitated a redevelopment of the property. They had initially planned a remodeling of
the establishment to the most recent corporate design standards. After the proprietors
participated in the Jump Start program, modifications were sought by Westfield
Architects to relate the building to the urban context and anchor the corner of the building
on the prominent intersection.
It was suggested that the parapet of the main block at the corner be raised to
respond to the height of other buildings along Broadway, creating the „box‟ at the corner.
An arcade of brick piers in front of the side wing was introduced to create a street wall.
This element was extended higher and connected to the main mass with a continuous
band to unify the various building components.
In the final design that followed lengthy negotiations, Westfield Architects
worked with the consultants to abstract from a unique prototype from Indiana that was
through to satisfy both the former‟s insistence on a contextual solution and the latter‟s
desire for uniformity and brand recognition. The later design adaptation featured recessed
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panels and entries, colonnades, the incorporation of cornices, brick-like colors, and
tower-like corners to materialize the goals of contextual design.
In terms of process, the BTC encouraged the proprietor to enroll in the Jump Start
program. The BTC lobbied the Planning Board to press the idea that such involvement is
crucial to the goal of making Bayonne a pedestrian friendly and an inviting place. The
franchisee initially expressed some reservations that the design by the Westfield
Architects diverged from the original submission and proposed a design that attempted to
address some of Westfield‟s concerns in keeping with the original design which was
consistent with corporate guidelines.
Some of these suggestions by the corporate design department, such a higher
parapet instead of a bold corner gesture, or a metal trellis instead of streetscape awnings,
where not viewed favorably by the consultant. Westfield showed willingness to work
with another option that featured a continuous awning, if the parapet wall behind it was
raised in height for a taller effect. While Westfield Architects wished to continue the
building wall along the street and on a continuous awnings to „pull the building together‟,
the applicants‟ consultants hesitated because the solutions were not compatible with
corporate standards.
After that point, the franchisee‟s consultants returned with a solution that
addressed the street wall issue by changing the colors of the brick piers to beige to blend
more with the base building. It seemed that they lost the corner „anchor box‟, presented
non-traditional awnings that did not feature a valence and were not visually „supported‟,
and did away with the „waistband‟. Westfield Architects expressed regret that in the least
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their concerns were not headed, and that these actions possibly amounted to strategic
maneuvering on the part of the consultants.
The consultants were poised to recommend to the town planner that the proposal
be rejected should cooperation remain unforthcoming. After the BTC toyed with the idea
of halting cooperation on design development to send a clear message about their resolve,
the applicants addressed some concerns such as changing the metal latticework to
awnings, and incorporating goose-neck lighting. This, however, did not satisfy the
Westfield Architects.
Subsequently, the anchor piece, continuous awnings, and „waistband‟ tie-together
element of Westfield‟s design were reintroduced. Westfield made clear its desire that the
brick piers wrap around the building to reinforce urban street wall, that the corner
element be made slightly higher, and that the design feature more masonry. The applicant
expressed reservations about the non-conforming awnings and the muted height of the
anchor, prompting the Westfield Architects to suggest raising the stylized arch to add
height to the building. Other than the desire for a traditional awning, it was proposed that
the stylized logo be placed on the parapet rather than in front of it to add more height, and
that the entire corner piece be one color.
At this point in the process the applicants indicated their willingness to consider a
„one time‟ proposal for this location which presumably was a strategy they considered in
locations where meeting corporate standards was complicated for unforeseen reasons.
Although the Westfield Architects would have created a „good‟ design for the location
and come up with a traditional façade that respects neighboring buildings and streetscape
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had they known this was a feasibility, they were cooperative in adapting from a unique
Indiana outlet that featured a unique „traditional‟ design. To its credit, the BTC was
consistent in its interpretation of its urban goals, massaging the Indiana design to reflect
its interest in a colonnade, a corner piece, and a coherent language.
Project M is an eatery on Broadway. The design proceeded with the assumption
that the owner wished to add another story of rental apartments to the existing building,
while maintaining the eatery on the first floor. Mr. Chatham worked with the owners to
introduce recessed entries, vertical separations, and unobstructed signage at the storefront
level to improve the visual pedestrian experience.
On the second floor, the vertically proportioned windows and three bays were
introduced to effectuate the same. The design also featured wood siding, a beige color
palette, brick piers, a wooden cornice, and ornamental supports. The original design
featured a red tile canopy which framed the storefront. This element was not considered
very favorably since it was arguably „caricaturish‟ and a more muted canopy was
preferred.
In terms of process, one element of BTC aid through Kick Start was the
preparation of a property evaluation report which enlightened the owners to various
possible uses for their property. The report considered various scenarios. Due to the
footprint of the current building, a second floor addition was deemed possible. The other
option of building five new stories, although allowed by code, would have meant raising
the building all together. The BTC also worked with the owner to produce a feasibility
study. When the owners seemed to hint that the second floor addition could therefore not
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be completed, the BTC took the lead in encouraging the tenant to apply for the proposed
tax abatement for mixed-use projects in the Urban Enterprise Zone.
When the owners expressed interest in a traditional feel and to keep the existing
pressed tin pent roof, the BTC suggested creating a new pent of similar character that can
be carried across all three storefronts below the second floor windows. At the storefront
level, the BTC suggested introducing new glazing so that pedestrians could see into the
restaurant. Another suggestion was to recess the storefront is recessed to allow for a
covered outdoor seating area. Finally, the building would clad in earthly colors to provide
a warm environment. The BTC suggested three second floor window bays to maintain the
rhythm of the buildings along the street lines. They also suggested the traditional
bracketed cornice at the roof line.
Project N is a revamping of a municipal parking lot on Broadway. The Town
Center‟s interest in municipal parking lots emanates from the fact that many serve as de
facto public spaces. The location of the lot is strategic and enabled it to be used for
special events and a summer movie series as well as daily parking. An unattractive metal
guardrail encircled the perimeter. To improve the lot‟s appearance while better
accommodating the alternative uses of the public property, it was recommended that the
existing guardrail be completely removed.
In its place will be a low brick wall with a cast stone coping, spanning between
matching brick piers. The upper half of these piers would receive a prefinished metal
fence placed towards the outer edge of the low wall to allow a seating area along the
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inner edge

on a precast bench. A series of banners are suggested at the top of alternating
piers to create a welcoming, festive feel to the area.
Process-wise, and after it was deemed that the initial design was initially not
priced adequately, the Westfield Architects worked to reduce the number of piers and
banners. As the needs of the city evolved, another option of installing piers on the
corners and openings only was developed with pole banners only framing two street
elevations. The rear wall seating was scrapped and it was decided to use colored block
instead of brick.
Project O is an accessories store on Broadway. The initial proposal featured a
stucco exterior a with a light and dark beige trim, a dark beige decorative cornice, light
beige fascia, and two faux columns, a shingled canopy, a „bronze‟ storefront. On the
interior, it featured „desert cream‟ granite slabs, slate tiles for flooring, and a bronze
ceiling grid. The consultant recommended altering the color of the storefront and revising
the canopy to be in character with the building.
To maintain the pedestrian experience, the proprietor was also advised that
regulations did not allow for a security gate unless the gate is in the interior of the glass
line and be of open-link type in order for the interiors to remain visible. In terms of
process and to make the original proposal consistent with the guidelines, Mr. Chatham
signaled that the path to compliance would involve certain types of outdoor lighting
fixtures and a particular finish for the storefront.

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6.1.2 SID-administered Design Review in Maplewood
In Maplewood, design review is administered by a design review committee,
which at different points in its history featured in its membership some prominent
residents who are also design professionals such as committee member Mr. John
Branigan, MVA chairman Mr. John James, and first director Ms. Allison Ziefert. The
following details some projects that came before the MVA in the last three years. All the
information in this section is distilled from project application files of the MVA
3
.
Given the size of the township and the scale of the projects that came before the
MVA, most of these projects are of the storefront construction and renovation variety.
The description below details specific decisions on such issues as graphics to illustrate
the attention the MVA afforded each application in its effort to re-vision Maplewood
Avenue.
Project A is a restaurant establishment. The original design featured a typical
commercial awning, a commercial wooden storefront and a graphic identity with non-
matching graphics and colors. The design as elaborated with the help of the MVA
featured a much more refined awning and graphic identity with cues taken from
European delicatessens, and repainting of the wooden storefront to more subdued colors.
Project B is a café establishment. In developing the original design, an attempt was made
at making the commercial graphics „upscale‟. In terms of process, the colors, graphics,
and lettering, information such as the phone number was struck off the valence by the
MVA. For visual appeal, stylized coffee cups were added on each side. For a more

3
The Township of Maplewood. The Maplewood Village Alliance. Design Review Application Files.

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subdued, elegant color, forest green was suggested and approved in lieu of red for the
canvas (Maplewood Village Alliance).
Project C is a deli establishment. For this project, the MVA altered the proposed
graphic by making it more suitable to the image of Maplewood. Project D is a restaurant
establishment. The original design featured the name of the restaurant and an olive
branch graphic copied twice on the sloped portion of the awning, and the „restaurant and
lounge‟ lettering on the valence.
The MVA worked with the proprietor to develop the design. In great attention to
detail, the restaurant name was moved to the valence, and the font changed to one with a
less imposing size and thickness. The duplicate olive branch graphic was removed, and
the „restaurant and lounge‟ information were pushed to the two ends of the awning and
lettered in an elegant art deco revival typeface. Gooseneck lighting was also added to the
design. The owners were also asked to put up a sign in front of the door of the same
design as the awning, and were dictated lettering styles and colors.
Project E is a pizzeria on Maplewood. The establishment had been given positive
reviews in the press and described as a unique Italian-American Pizzeria and restaurant.
Process-wise, the MVA intervened to arrive at a logo and motto that reflects the eatery‟s
reputation as a unique establishment and the work culminated in an image that featured
the graphic of a brick oven and the motto „wood burning brick ovens‟, all aimed to
transition the establishment from fast food to casual dining.
Project F is another restaurant establishment. The original project name and
design, was in the MVA‟s view, not terribly sophisticated. Color-wise, and instead of
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white on red, the MVA encouraged the applicant to consider a „warmer‟ light grey. In the
MVA‟s view, the typeface lacked any distinctive graphic treatment. The proprietor was
prodded to enhance the concept with a distinctive tag line. To Mr. Branigan, the original
name was more appropriate for a produce market and less so for a fine restaurant. Mr.
Branigan‟s encouragement that the typeface be changed was headed. When the
establishment‟s name was changed, most of the suggestions were carried through.
Project G is a diner on Maplewood Ave. In working with the proprietor to
develop the design, two proposals were originally submitted. The MVA worked with the
applicants to elevate the design of the diner to that of a casual „family place‟ that could
appeal to a higher income clientele. Although the proprietors just wished to revamp the
existing eatery, the MVA pushed them to consider a total image transformation to create
a „sidewalk cafe‟. The MVA were very involved in the design of the graphic identity,
stipulating that the awning cannot be internally illuminated, that it be of an opaque
canvass fabric, that the valence be reduced from 2‟ to 9” and feature less information, and
that the fabric be darker and have ivory lettering. Of the two awning designs being
proposed, the blade type fabric awning was to be installed.
The MVA suggested reducing the text on the awning for clarity by posting the
omitted information on the windows. It was decided that the motto „a family place‟ was
to occupy the sloped portion of a darker fabric awning. It was also advised that the
„steaks chops seafood‟ and the „free delivery‟ language be revised as it was seen to be
unrefined. When the proprietors expressed interest in external fluorescent lighting, Mr.
Branigan cautioned that fluorescent and neon façade washing are totally unsuitable and
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pushed in the direction of warm wall washers. To create a café feel, Mr. Branigan
suggested the diner open up their front windows and dispose with the very distasteful
signs blocking the view. He also made the case for pendant fixtures over the tables to
create a „nice café‟ atmosphere.
Process-wise, and in the first exchange, the Diner presented plans for minor
awning and lighting changes. Later when the owner submitted blade and bubble type
awnings for review, the MVA pushed for the blade variant. Still unsatisfied with the pace
of progress and over-crowded design, Mr. Branigan volunteered a design, trying to
incorporate elements of an initial hand sketch he had produced. Finally, although the
owner did not abide to Mr. Branigan‟s sketch, the MVA did manage to get the Diner to
sign on the important issues such as a reworked image and motto around the idea of
„family place‟.
Project H is an entertainment venue. The MVA sought to arrive at a graphic
identity that had a „theme‟ and was recognizable. Procedurally, the MVA helped the
bar/lounge create a suitable graphic identity. In deliberations on the design, the MVA
originally made the case that the oval logo would be more effective on the awning, rather
than down on the door. Mr. Branigan proposed a solution with a creative use of the
interesting logo. He pressed for store identity and communication through pedestrian-
oriented graphics. The solution was to show a „continuous band of musicians‟ graphic
that „marches‟ in front of the street level curtains. In requesting the deletion of the phone
number information, the case was made that though that solution may be traditional, it
was neither aesthetic nor particularly effective, and hence unacceptable.
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Project I is a deli on Maplewood Ave. When the deli wished to add outdoor
seating, the application was denied because, in the MVA‟s view, that would make it look
like a „fast food‟ establishment instead of the „gourmet deli‟ they thought it had the
potential to be. Project J is a takeout restaurant establishment. The original graphic
provided did not feature any lettering. The MVA took the liberty of adding the
establishment name to the valence in sophisticated lettering. Project K is another
entertainment establishment with a much muted graphic identity suited for a multi tenant
building.
Project L is a boutique that prides itself as a very chic new type of shopping store
for „stylish shoppers‟ who crave „one of a kind‟ fashion. Project M is a beauty salon. The
MVA worked with the applicants to change the aluminum frame color to black and have
the window frames around second story windows be painted the same color. After the
plans were submitted, a decision was made to relocate the awning so that fanlight and urn
decoration are not obscured. In Project N, a bakery, the initial feedback was that the type
featured on the graphic identity was too large and that it crowded the frame. Mr.
Branigan suggested shrinking the type and centering it.
Another example is Project O, which by any measure was of the typical
convenience store variation. The intent of the MVA was to tone down the gaudy nature of
the design. Procedurally, the MVA prescribed the location, shape, and colors of the sign,
the arrangement of the fenestration, the colors of the awnings, location and type of
exterior lighting, etc., and worked with the applicant on graphics and storefront design.
Some of the suggestions were using red with gold lettering for sign colors, and using
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wood sign in lieu of the plastic for materials. Gooseneck lighting was suggested to match
nearby Jocelyn‟s. The proprietor was told to rearrange the rear door and windows to have
window flank door and eliminate the light box sign. When non-complying white
gooseneck lights were installed, the proprietors were informed that they needed to be
changed. In Project P, when the name of the establishment changed, revised graphics
were due. Procedurally, in the initial phases the MVA framed the direction of the design
by suggesting to the proprietor the idea of a „vertical‟ sign that is better suited to the
building.
The MVA‟s reservations were less pronounced in the case of Project Q, a
stationery, where the design more successfully married a playful with a traditional
approach. Process-wise, and to prevent the owner from choosing for the cheapest possible
materials for the renovation, the MVA stipulated that the painted masonry surface
indicated on the drawing must be a special epoxy masonry with added texture. Although
the MVA initially explicitly prohibited the proprietor from using incompatible materials,
he nevertheless continued to refinish the knee wall with incompatible bluestone. The
MVA decided to hold firm, and subsequent events lead to the owner selling the store. The
new owner did however show more flexibility, and his plans for renovation did feature
the correction of the documented incompatibilities. In Project R, an ice cream shop, the
new proposal was markedly more village-theme appropriate that the previous generic
franchise graphic identity. In place of the generic sign, the MVA worked with the
proprietor to produce a simple plain maroon awning with no lettering or logo. The knee
wall panel was pained to match the awning and sign.
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In the renovation of project S, a cleaners, the proprietors proposed that since the
cleaners was situated opposite rail tracks, the owners felt compelled to express the store‟s
association with trains. The new storefront, pushed as „individual‟ and „unique‟, would be
„train and station‟ themed. In his proposal, the architect did speak a language to which the
MVA was sympathetic. The existing façade was described as a „metallic monster‟ which
overwhelms the limestone façade of the building. The new design responds by replacing
aluminum trim with a new wood façade, using natural materials and colors, removes the
ribbed metal siding and re-exposes limestone above sign band.
The color palette and materials were described as sensitive to the immediate
context. The MVA was more in favor of something simpler that resembles the generic
commercial nature of the adjacent storefronts and is more in keeping with the style of the
building using one color scheme, and existing door frame and windows. The over the top
detailing of the pilasters and knee wall panels, the return wall and the sign were seen as
problematic.
Procedurally, the MVA particularly advised on color schemes, demolitions, metal
work, doors and transoms, pilasters, knee wall panels, and sign colors and materials.
While the architect headed on the issues of the pilasters and general simplification of the
elevation (which he agreed might have looked too dated and busy), he took issue with
some other points. He resisted on the door and transom lights (enhances storefront and is
integral to design), metal pilasters (not in keeping with the overall concept), and sign
materials. The MVA insisted on many of these issues leading to proprietor acquiescence.
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Project T is a commercial building. When it was proposed that the new
professional building be a replica of the „brutalist‟ bank addition building, Mr. James
persuaded the owners to create a design respectful of the residential language on that
street, Ms. Lamb-Falconer stated to me. Procedurally, the MVA also worked with the
architect for the project to arrive at detailing that is compatible with the MVA‟s vision.
A longtime local architect was the first architect hired to design the professional building.
His design mirrored the design of the Bank of America addition across the street with the
same institutional language, but it was clad with stucco instead of brick (Maplewood
Village Alliance). The owner, not aware of the MVA‟s mandate, went ahead with the
design and presented it to the planning board.
After recognizing the situation, the owner flatly made it clear that he would do
what it takes to get the project approved, making it clear to John James, MVA president
of the board of directors, that he would accept whatever suggestions he offered. Mr.
James instructed the owner to borrow from the original building‟s design, that it need
have the character of a building on a side street. When the new architect (who was an
acquaintance of John‟s) presented new design, Mr. James was very liberal in his
commentary, suggesting for example that he replace the „McMansion‟ like precast
balusters with more slender iron ones and to use detailing similar to the adjacent building.
Project U is an office for a publication. When two variations on their new environmental
signage were proposed, the design that was more „classical‟ and ornamental was chosen.
Project V is a beauty salon. The logo developed for the awnings is a very
classically designed artwork. The pink awnings are a subtle play on the theme of the
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establishment, a spa, and the brick building in which it is housed. The classically lettered
„experience the difference‟ motto also reinforces this upscale image of the establishment,
so does the addition of an outdoor park bench in the lawn. The initial sketch provided
featured typical awnings, lettering, and information presentation. Using this as a starting
point, the MVA indicated that the proprietor look into substituting the name of the
establishment with a logo. It also recommended using more sophisticated black instead of
white lettering for the valence. In a second round of refinements, an effort was made to
replace the „hair nails skin‟ information on the valence with a more sophisticated motto.
Procedurally and in the first exchange on the project, the applicant was instructed
on issues relating to the sign (materials, size, and color), vinyl lettering (area), and rear
door (location), all with the intention of softening the excessively unrefined nature of the
design. In the second exchange, issues relating to the awning (lettering, size), lighting
(goosenecks) were brought up. In the third round of interaction, the MVA voiced
dissatisfaction with progress, and the fact that lettering color and size was not acceptable.
By this point it is clear that applicant incapable of discriminating and
understanding direction they are taking her in. Displaying patience and perseverance,
again the applicant was instructed to change the size of neon sign and vynil lettering,
location of back door, and light box. More ensued later, with a request to hide gooseneck
lighting conduits and changing the color of the stucco. Finally, when owner put up white
gooseneck lighting, they were ordered changed to black. In a strategy seen again and
again, only after all these adjustments were made that the project was put to review
before the design committee.
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Project W is an advertizing establishment. The application was approved with the
condition of the modification of the sign to have softer edges. Since the building was in a
Spanish style, matching the signs to the building became very important. The MVA
dictated, for the purpose of aligning the design with the Spanish style architecture, that
the original design be modified to have softer edges. The sign was gold leafed on cedar
wood plank and hung from a wrought iron hanger.
When the building owner was looking to renovate, the MVA suggested the best
way to proceed was to open up windows to existing size as display windows with some
kind of wrought iron detailing compatible with existing faux Spanish Moorish elements.
John James suggested opening up the windows to existing size as display windows with
some kind of wrought iron detailing compatible with existing faux Spanish Moorish
style.
For Project X, a nail salon, a classical theme was proposed for the establishment
complete with a classical sign with typical wood and gold leaf lettering. The fact that this
project was quickly approved signifies how by now the sign makers have had experience
with MVA guidelines. When Project Y, a liquor store expressed interest in rehabilitating
the facade, the MVA was very supportive and interested in the details of the renovation.
It stipulated an extensive list of renovations ultimate intent of which was to give
the store the feel of an upscale establishment. Although the proprietor merely wanted to
replace the awning and repaint, the MVA pushed for a far more extensive renovation
program including re-stuccoing, painting woodwork, adding a cornice, eliminating
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„dated‟ panels, replacing fluorescent lights in window display areas with incandescent
fixtures, adding gooseneck lighting, etc.
Project Z is a realty office. The MVA wished to arrive at a design that is well
integrated within the building. The MVA prepared two options from the outset, and the
one which fits within the frame of the storefront was decided upon. In terms of process,
the MVA ordered certain information be removed (e.g. phone # on left wall graphic to be
removed), and re-arranged ( # should be moved to valence of right hand side awning
under Bergdorff sign). They instructed that the wall sign extend to occupy the entire
width of the transom opening.

6.2 Critical Assessment of the BTC and MVA Processes
6.2.1 The BTC Process and the Substantive Dimension
The BTC design guidelines are what I termed character-based guidelines which
call for the respect of context, scale, materials, and proportions. In the regular process of
design review, there are instances where however it seemed that the consultant Mr.
Chatham adopted a conservative interpretation of the guidelines. For those projects
participating in Jump Start, the work by Westfield Architects more definitely points in
that direction.
The retention of a consultant who self-identifies as an expert on Main Street
revitalization through the Historic Main Street Program (Westfield Architects) is one
indication that the BTC was bent towards creating a more traditional city center that what
the guidelines might have called for. One can glean from some of the projects that came
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before the BTC tolerance for historicism, ornate design, and some traditionalist and anti-
commercialist inclinations.
Historicism is defined by the literal incorporation of features from historic
structures. Project A was by far the largest project that the BTC had to review, and one
whose size was a significant challenge to BTC ideal of a „Main Street‟ Broadway. Given
the size of the building, the BTC‟s input on the creation of a „historic‟ two story base
differentiated form the rest of the „modern‟ building was perceived to be the best solution
for the scale problem. While the intent is valid, making a glass mass float over a 19
th

century-like 2 story streetscape is a traditional solution to the problem at hand. The
equation of contextualism with small-scale eclectic facades, a rooftop caricature and even
smaller scale elements such as shutters and awnings raises questions about BTC‟s
conservative sensibilities.
The proposal by the consultant for Project E under the Kick Start program was
unsympathetic to the original modern design and called for making the building take
traditional features as mentioned by applying a „faux‟ façade, bays, and raising the
corner. To the discerning viewer, the much compromised final product can seem as
unrefined as the original building, and ironically presses the point that decent design can
be achieved by detailing and execution rather that any stylistic consideration. In Project
F, the proposal under Kick Start also shows antipathy to modern design which can be
seen in the desire to give the store a „hometown‟ feel.
The BTC‟s design guidance for Project B illustrates a preference for the ornate
and weariness of designs perceived to be too simple. The application of the wide array of
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the guidelines to proposed the design, of course, is not a value free exercise. Through the
process of design refinement, the BTC worked with the applicant to introduce depth, trim
to frame elements, brick piers, a cornice, and cast masonry. In these and other revisions,
we can detect a conservative sensibility in the attention to detail. Although the final
design is more detailed and contextual, it is undeniably more traditional.
The renovation of the commercial establishment in Project G under Kick Start is
yet another case where the redesign, featuring a planar façade element and classical
pyramid-shaped corbel supports is an obvious statement against simplicity. Project H,
also under Kick Start, is a more complicated case. Although the central bay with the
arched shaped shading devices was retained, the storefronts flanking the bay with the
blank brick piers were „traditionalized‟ with canopies and framed windows. The intent of
clearing the visual clutter is commendable, but that could have also been achieved while
respecting the elements of the original design.
The BTC‟s design guidance for Project C under Kick Start also evinces a
preference for traditionalism and a desire to curb developers from attempting design
solutions that are perceived to be too modern. Since the applicants had hired a reputable
architect, it was practically straightforward for the team to incorporate the BTC‟s
comments and understand the kind of vision they had for the district. The final product
can be described as traditional, but also a very simple design.
The unarticulated storefront of the original building in Project I is an example of a
plain façade which the BTC most likely would have found uninteresting. The fact that the
consultant under Kick Start decided to go for a traditional awning, detailing of the faux
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wooden columns, and gold leaf wooden sign was a matter of choice, not specifically
called for by the guidelines. Local sign makers have experience with this type of
traditional signage, and there was no attempt to push the boundaries in the direction that
the initial sketch indicated.
The BTC‟s design guidance for Project D on the other hand evinces a desire to
disguise the commercial symbolism of business establishments. With the advent of SID-
administered design review, the applicants underestimated the BTC‟s desire to tame
corporate and commercial design. In their guidance to modify blatantly commercial
materials and signage, the BTC cited „scale and appearance‟ concerns, language which
implies discontent with the commercialized approach to the issue of character. This
reasoning on the part of the applicant‟s architect is perfectly consistent with how he
would have perceived zoning officials to react, their mandate and concerns being not
specifically design oriented.
Under Kick Start, the remodeling of Project L illustrates clearly how Westfield
Architects and the BTC understood „decent design‟ and contextual continuity narrowly
through the lens of traditional design. While the franchise valued relaying the
identifiable brand more than context, it also seemed that the consultant pushed for
conventional design solutions for some worthy urban issues. The franchise gave no one
reason to challenge the consultants‟ traditional interpretations of these goals since their
solution pulled the design in a diametrically opposite direction. In sum and although the
franchise‟s guidelines allow for more innovative designs, their desire to be faithful to
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brand guidelines led them down a path that resulted in a product much more traditional
that they would have initially liked.
In Project M, similar sensibilities are evident. The 19
th
century bay windows,
wood siding, traditional beige colors, brick piers, wooden cornice, and ornamental
supports all temper the commercial nature of the establishment. The red tile pin canopy is
an exception to the muted traditionalism in its very literal reference to Mediterranean
styles, but anyways adds to the feel of the building as a hodge- podge of traditional
elements.
In the design for Project N the consultant attempted to integrate the functionality
of an events space into a traditional design that can function as a backdrop to community
events. The final design again, however, features classical piers, banners, and a wrought
iron fence that interpret the valid urban concerns in a traditional manner. Though
unimpressive, it may have been necessitated by the need for a public improvement to
project the safest possible image.

6.2.2 The BTC Process and the Procedural Dimension
As mentioned, I believe that the BTC-administered design review process is
characterized by a form of proactive involvement that supersedes the typical role of a
regulator, for which we can find evidence both in the regular review process and in the
structured Kick Start process. In the regular review process, design decisions were meted
out by Mr. Chatham in writing, and design development was supervised via informal
oversight and monitoring of progress that allowed for a closer review of development that
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what would have been possible via design review hearing. Under Kick Start, the case for
proactive involvement is much clearer since the BTC sanctioned consultant actually
produces the conceptual design.
In a typical design review process due process considerations constrain the
regulatory authority and thus usually the application is reviewed once or twice after
substantial completion. Design review under the BTC, especially as it pertains to Kick
Start, is a very malleable process where in-person interviews, e-mail and correspondence
make for a process of regulator-applicant interaction that is more fluid and open-ended.
One form of proactive involvement was in identifying and educating applicants
about possible design solutions. In Project M, the BTC intervened to renegotiate a project
whose size and proportions did not square with the BTC‟s goal for the district. Project A
is the clearest example of the BTC proposing specific solutions to channel the design in a
direction consistent with their vision for Broadway. As mentioned earlier, there were
concerns that the first proposal did not satisfactorily reconcile the large program with the
goal of maintaining the streetscape.
Mr. Chatham took the initiative to produce a revised concept, were he suggested
preserving the commercial Main Street feel of Broadway by a series of architectural
adjustments to the original design. It is worth noting that these recommendations were
very specific nature, such as the specific solutions for the gap or proposed split in the
building. The same is true of the design solutions to dematerialize the building such as
treating the high-rise as a „floating‟ mass of glass and as a neutral field to detract
attention from it. This is also evident in the articulated suggestions for the façade.
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Another important benefit to proactive involvement is the capacity to micro-
manage the design process, which would not be possible in the case of a typical design
review process. This is especially important in the cases where it is not possible to
crystallize a clear design problem and where the review agency feels the need to regulate
design by successive adjustments to the original proposal. It is clear from the redesign of
the Project B for example that what needed to be done was to gear the development of the
property in a direction consistent with as many guidelines as possible. The BTC pushed
conformity to the guidelines such as in demanding deep elevations through gradual
setbacks and many other detailed augmentations.
Another relevant case is that of Project D. In the notification to the applicants the
design‟s general scale and appearance is not consistent with guidelines, the consultant
indicates in detail the elements that need revisions, such as the EIFS material, the „fubble‟
canopy, and the need for approved exterior lighting. After deliberations with the BTC, the
applicants reconfigured the design to incorporate design features that are typical of
designs that the BTC encourages, insuring prompt approval of the application.
The detailed prescriptions for Project C, such as the applied façade to eliminate
the blank wall appearance on the upper floors at the rear, the inlays to provide changes in
plane, lighting fixtures, and sill heights also exemplify this point. Project O exemplifies
the BTC‟s strategy of offering concrete advice concerning design improvements. When
Mr. Chatham indicated that the original plans were inconsistent with the guidelines, he
signaled that the path to compliance would involve certain types of outdoor lighting
fixtures and a particular finish for the storefront.
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The same can be gleaned from Project M. When the owners expressed interest in
a traditional feel and to keep the existing pressed tin pent roof, it was suggested that since
the existing tin pent cannot be kept because it is too high for the second floor windows
above, but cannot be relocated due to condition, that a new pent of similar character and
that can be carried across all three storefronts below the second floor windows should be
created. The BTC suggested three second floor window bays to maintain the rhythm of
the buildings along the street line and a traditional bracketed cornice at the roof line,
amongst other recommendations on glazing, recessed storefronts, and cladding color.
Project L probably most exemplifies this fluid review process, and the lengths to
which the BTC is willing to go to achieve their urban goals with creative solutions to
conflicting preferences during multiple iterations. The unusual interest in this case is
partially explained by the fact that building was the most commercial of all Broadway
establishments, and its redesign will validate its mandate to transform Broadway to a
„hometown‟ district.
As mentioned in the previous section, the main goals herein where to „anchor the
corner‟, preserve the „street wall‟, and tone down the corporate image to fit the context.
From early on the process, the BTC pressed the franchisees to enroll in the Jump Start
program, and it lobbied the Planning Department to intervene with the idea that such
involvement is crucial to the goal of making Bayonne a pedestrian friendly and an
inviting place.
After initial design suggestions, the consultant played the role of reviewer to
alterations proposed by the corporate design department, and alternatively augmented
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those proposals to keep the project on track. When corporate design came back with a
design that attempted to address some of the consultant‟s concerns by reversion to the
original design to return the design to the franchisee‟s original proposal, the consultant
insisted on the argument of context and dismissed some suggested alternatives such that
the higher parapet might compensate for a bold corner gesture, or a metal trellis for a
streetscape awnings.
After it seemed that corporate design would be seeking token conformity, the
consultant insisted on the anchor piece, continuous awnings, and „waistband‟ tie-together
element. The consultant also insisted that the brick piers wrap around the building to
reinforce urban street wall, that the corner element be made slightly higher, and that the
design feature more masonry.
When corporate considered a „one time off‟ proposal for this location, the
consultant was consistent in its insistence on a higher corner, and that the entire mass be
one color. When corporate design acquiesced and referred the BTC to another outlet that
featured a unique „traditional‟ design for reference, the BTC was consistent in its
interpretation of its urban goals, massaging the design to reflect its interest in a
colonnade, a corner piece, and a coherent language.
Project N also showcases the role the BTC played in steering the design through
an unfolding process. As the needs of the Mayor and city evolved (requesting
contingences), and the union labor issue emerged, the consultant assumed the role of
coordinator, quickly incorporating design changes. The quick reaction and value
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engineering exercise by the consultant meant the world of difference between the project
being shelved and actually gaining momentum.

6.2.3 The MVA process and the Substantive Dimension
In my analysis of the MVA administered design review, there is evidence that the
theme-based guidelines were interpreted by the MVA more akin to character-based
guidelines. The specific character the MVA was interested in promoting can be described
as a sleek modernist „euro-chic‟ character. The MVA pursued this vision in a meticulous
attention to details such as materials, color, and graphics given to each and every
application from the simple awning replacement to the more comprehensive façade
improvement.
The first strategy in this endeavor was the borrowing from of the visual arsenal of
metro and euro cafes and trattorias. Here the MVA worked to transform the cafes and
eateries that came before it by subduing the gaudy character evidenced in the initial
conditions or the conceptual sketches such as in Project A, Project B, and Project C. The
intervention on Project C evidences the laborious effort that went into sophisticate the
theme of the establishment. The revamping of the brand in Project D is probably the
most successful transformation the MVA attempted in terms of impact it had on
Maplewood Ave and in effectuating its mission. This is partially due to the „gaudy‟
nature of the then existing storefront featuring a „bubble awning‟ and commercial
signage. The MVA‟s goal was to transform the restaurant to an upscale trattoria. It is
clear that the goal was to hone the potential for „elegance‟ inherent in the original design.
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When an eatery did not have a powerful theme that could be built on, the MVA
intervened. In the Project E original design, the graphics theme and motto lacked
sophistication. The same is in the case of Project F, where the original design was in the
MVA‟s view, not terribly sophisticated. This search for a tasteful concept reinforcing the
international nature of the eatery resulted in the owner being prodded and convinced of
changing the name of his establishment. The approach taken in the case of Project G also
demonstrates the MVA‟s bent towards sophisticated theming. The MVA was adamant
that awnings without fringes look more updated, as well as on the other details proposed
to the applicants. In Project H, the proprietor initially did not capitalize on the
establishment‟s distinctiveness to create a unique graphic identity, which invited
intervention by the MVA to theme the lounge along its chic vision for Maplewood.
Other than eateries, and for establishments that did not insist on a particular
theme, the MVA‟s strategy was to strive for a minimalist design agenda. Minimalism
reduces visual clutter and is symbolic of an upscale social context. In Project J, both the
minimalist information and the proposed matte colors are hallmarks of Mr. Branigan‟s
notions of sophisticated design. In Project L, the fact that the boutique shared the
minimalist sensibilities of the MVA facilitated the approvals process. In Project M, the
subtle suggestions on graphics made for a more refined design. In Project N, the MVA‟s
sense of mission is also quite evident. In tweaking the original design, the MVA showed
interest in a more „subtle‟ design. The same can be gleaned from the gradual
simplification of Project O.
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Thirdly, and for establishments that proposed „playful‟ storefronts, the MVA
carefully steered the proposals to more simple variations on the theme. For the MVA, the
risk is that in the hands of the not- so-capable designers, „playful‟ designs could easily
denigrate into a kitschy variant. In Project P, the playful signage was probably approved
because it contributes to Maplewood Ave‟s image as an „artsy‟ place, although not
without adjustments as the MVA clearly indicated the approach that it condoned.
Some types of establishments lend themselves to a playful image more than
others, such as Project R. Store information was limited to a wooden elegant sign that
centered on the transom and whose background color matched the awning and featured
lettering in gold leaf. The episode of the Project S renovation is another tale of a business
with a kitschy design. Although the MVA was supportive of the idea of replacing the
aluminum and restoring the limestone façade, it had reservations and dedicated time and
effort to simplify the proposed design.
The MVA did sometimes work with „classical‟ themes in the case where the
nature of the establishment required that a visual „dressing‟ alter the image residents had
of it, such as in the case of the nail salon and the liquor store. This was also the case
where the proprietors aimed at luxury as a theme. After all, classical themes can be a safe
choice since they evoke luxury. Project V is an interesting example of the kind of this
luxurious village-suitable design that the MVA sought to implement.
Again and to reiterate, when the proprietors of Project X expressed no particular
interest in design, a classical theme was proposed for the establishment, complete with a
classical sign with typical wood and gold leaf lettering. Project Y is an interesting case in
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the sense that that it exemplified a type of use associated with loitering and delinquency.
It stipulated an extensive list of renovations ultimate intent of which was to give the store
the feel of an upscale establishment.

6.2.4 The MVA Process and the Substantive Dimension
As pertains to design review, I submit that the MVA also benefited from applicant
deference to its judgments to be proactively involved in the design aspects of proposed
projects through conceptualization, dictation, and mutual adjustment. The MVA was
uniquely positioned amongst its peer SIDs to be proactively involved in design review
given that two the members of the board of directors were architects. More importantly,
one member is an environmental graphic designer with extensive experience in place-
branding. Similarly as in the case of Bayonne, the MVA leveraged its powers to blur the
lines between regulation and production. It is important to keep in mind that this
involvement was almost always an „informal‟ exchange prior to the actual hearings on
the application.
Early on, the sense of mission the MVA had motivated it to actively pursue
merchants about their goals, propose design options and line up sources of financing. The
MVA‟s first director Allison Ziefert managed with a „top down‟ approach, in many cases
instructing property owners on specific design formulations. A less proactive approach
might have been less adversarial, but in retrospect this might have been necessary to
establish presence for a fledgling organization. Still, the MVA struggled to have
landlords see eye to eye with the MVA‟s goals.
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For example, the owner of a prominent building abused the law exempting
maintenance from site plan review to completely remodel his buildings in a manner
totally inconsistent with village character, replete with out of context ornate details. As a
friend of Ms. Lamb-Falconer (the former MVA director) observed, the final design was
“like her grandmother from Staten Island who doesn‟t know when to stop accessorizing”,
I was told in an interview. Another experience was with a local arts business where the
proprietor had an idea for a „funky‟ design, which was not compatible with the image the
BID wanted to project which resulted in friction, I was told by Ms. Koehler, the MVA
director. With these experiences in mind, the MVA set out to insure its vision was
understood and effectuated.
Since the MVA did not offer a design grant such as in the Kick Start program,
involvement in initial conceptualization, though noticeable, was less prevalent than in
Bayonne. The MVA did however steer applicants in certain directions when they
presented alternatives or seemed unsure how to proceed. One such example is Project Y,
where the MVA helped the applicant design the storefronts and chose materials. This was
most likely due to the fact that the establishment‟s success in upgrading its image was
perceived to be crucial considering the negative impression the MVA has of the type of
establishment the store represented. The same can be said of the conceptualization of the
graphic identity in project E.
The same is also evident in the total image transformation in Project G to create a
sidewalk cafe. For Project H, the MVA helped the bar/lounge create a graphic identity
that emphasized its artsy nature through careful coordination of a graphic with the
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background curtain. In Project P, the MVA suggested to the proprietor a vertical sign that
would be better suited to the subdivided nature of the storefront. In Project Z, the MVA
prepared two options from the outset, and geared towards the choice that was the most
practical and aesthetically pleasing. The MVA also worked with the architect for Project
T to make the design more residential and to take cues from the buildings in the area. The
final product was, according to Mr. Branigan, much more exciting than what had been
originally proposed.
When the MVA was presented with proposals it did not approve of, the ability
micro-manage and to dictate terms became especially important, even more so for small
scale projects such as is prevalent in the MVA‟s jurisdiction where competent architects
and designers are seldom retained. It was very common for the MVA to dictate specific
details, which in sum make for desired design solutions. Some of the more prevalent
dictates include colors, graphics, and lettering (e.g. Project B, Project K), lighting fixtures
(e.g. Project O), graphics (e.g. Project J), and awning details (e.g. Project C). In Project
T, the incorporation of the MVA‟s directives guaranteed the project quick approval.
Project D is another example where the MVA‟s attention to detail, down to the
selection of typefaces and tweaking the original design had a substantial impact on the
original „run of the mill‟ design for the eatery. The same design illiteracy on matters of
design on the part of the proprietor in Project O initiated MVA involvement. The
intransigence on the part of the proprietor in Project O and their refusal to abide by the
standards invariably led MVA down a path were it had to come up with suggestions to
steer the designs towards compatible solutions.
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Other than conceptualization and dictation, the MVA also benefited from its
independence to administer an informal process of mutual adjustment to channel design
proposals in a desirable direction. The continuous involvement of the MVA in steering
Project S from the initial „literal‟ design through a protracted informal series of
exchanges exemplifies this approach. In response to the first proposal, the MVA
expressed that they would be in favor of a simpler design that resembles the generic
commercial nature of the adjacent storefronts and is more in keeping of the style of the
building. As the process unfolded, the MVA insisted on many of these issues (knee wall
panels, train graphic, door and transoms, etc.). The initial resistance on the part of the
architect, where he cited design integrity and contextual concerns, eventually subsided as
he realized the costs of resistance would be too high.
The rounds of exchanges on Project O, whether on the sign, lettering, and door
location, then on the awning and lighting, and on graphics and lettering have also been
illustrative of this. For Project V, the initial sketch made for a starting point for two
iterations of refinements involving the MVA. The feedback on Project G went through
four iterations where the MVA progressively geared the project to more desirable ends.
In the case of Project F, the original design was objectionable in terms of lettering, and
relationship between the awning and the rest of the signage. In a protracted adjustment
process, most of the suggestions were carried through.
In Project N, the exchange between Mr. Branigan and owner‟s design consultant
did lead to a design more acceptable to the MVA which suggested how the owner‟s
interest in having a treatment identical to an existing sign can be achieved without the
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recourse to mimicry. The iterations in the case of Project D on the other hand did result in
a design more suited to the vision of the MVA. In another example, the initial rapport on
Project M was centered on the assumption of the cost-effectiveness of historic
preservation, which lead to an agreement on a store entry flanked by two symmetrical
window areas. When this assumption proved too optimistic, the MVA and the owner
worked out a new arrangement for the entrance.

6.3 Control and Comparison Groups
6.3.1 Municipalities with Design Review Boards
As mentioned earlier, the courts in New Jersey did rule that MLUL does in fact
authorize townships to exercise aesthetic control, although for reasons that have to do
with the fact that this determination has been made by the courts as an interpretation of
the law has dissuaded the majority of municipalities with interest in design review form
taking advantage of the authority. In fact, the practice was still not prevalent and I was
able to only enumerate five municipalities that did so (Ramsey, Montville, Wyckoff,
Colts-Neck, and Vernon).
A reading of the municipal ordinances creating Design Review Boards in the
Borough of Ramsey gives us glimpses of what authority such a board has under New
Jersey Law. In terms of authority, the Design Review Board (DRB) serves in an advisory
capacity to the Planning Board, Zoning Board of Adjustment, and the Building
Department. In this capacity, it recommends action based on the design aspects of
applications, and does not have final say over applications, although in practice the
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planning board does not act on an application that is not substantially approved by the
DRB
4
.
Accountability and oversight over board activities is substantial. First, of its seven
members appointed by city council, one has to be a member of the borough council. The
building inspector and the borough engineer may attend meetings of the design review
Board and participate in its deliberations. The board cannot conduct business unless four
members are present. In terms of qualifications and expertise, there is a stipulation that
Board members need have demonstrated civic interest, expertise in architecture, land
development, city planning, real estate, and affiliation with local businesses or historical
associations.
Due process and transparency is addressed by the requirement that the board need
keep minutes of its proceedings, showing the vote of each member upon each question.
The law specifies the areas that the board may ask the applicant to reconsider when an
application comes up for review, in this includes the relation of proposed buildings to
environment to insure compatibility with existing development, harmonious design, and
coordinated appearance, and the design of building walls to encourage broken masses,
texture, and durable materials.
Ramsey. The ordinance creating the Borough of Ramsey Design Review Board
specifically states that the board‟s mission is to promote good quality of design and
restore and preserve significant and historical structures. This is achieved by insuring
compatibility with the architectural style of existing adjoining development, and their

4
Borough of Ramsey. Borough Municipal Code § 31-3 to § 31-3.6.

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appropriateness within the community‟ (Borough of Ramsey). Elsewhere, it is stipulated
that the design regulations are intended preserve the exterior architectural heritage and
ambiance of the Borough. The borough states explicitly that the intent is not to stifle
innovation nor legislate specific styles, but it is clear that the twin goals are those of
contextual harmony and architectural quality.
The record of DRB decisions for the years 2007 and 2008 indicate that the board
remained faithful to these two goals. In the most extreme interpretation of the mandate of
contextual compatibility, the DRC discouraged proposals that it deemed „too
contemporary‟, and encouraged designs that that responded to the „turn of the century‟
character of Ramsey. For the 20 Orchard Street two story commercial building, the DRB
pronounced that the overall the building appeared stark, asked if there was any way to
change the modern look. For the Ramsey Pharmacy renovation, the Board indicated the
importance of having renovations fit within Main Street by returning the building exterior
to a turn of the century look
5
.
For the HSBC redevelopment, the Board asked for changes because the proposed
signage was contemporary and would not fit in with the architecture of the surrounding
area. In a more moderate interpretation, the board interpreted conformity to context at the
level of materials and elements. The verdict on the Urban Auto Spa was that it need
coordinate the overall design with the renovated building. The DRB also determined the
same for the Board of Education Signs (neither schools have red brick façades suggesting

5
Borough of Ramsey. Design Review Board. Minutes of Meeting. December 18 2007, January 22 2008
(20 Orchard Street); July 24 2007, December 18 2007, May 27 2008, June 24 2008, July 22 2008 (Ramsey
Pharmacy).

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brick columns), the Chase Bank Signs (illuminated sign unsuitable s bank is close to old
stone church), and the Classic Auto Spa Sign
6
(modern pylon should match classic
building).
The DRB position on design quality was more straightforward, calling for
unassuming „tried and tested‟ solutions when confronted with controversial or
underdeveloped solutions. For the Interstate Shopping Center, the DRB indicated the
need for a garage that is aesthetically pleasing in reference to another nearby garage. For
the D‟Angelo building, the DRB asked for revisions that raised the roof and shielded
mechanical equipment from sight. For the Nuova Cucina sign, a photo book was
reviewed and another Ramsey sign was shown which would improve and give the sign a
softer look. For the Capital One Bank Sign There was basic agreement from committee
members that design and colors were acceptable but that size reduction was needed. The
Center for Classical Acupuncture Sign was questioned, as the colors clashed with those
of a nearby establishment
7
.
The ordinance creating the DRB also clearly establishes the role of the Board is
strictly to produce recommendations on which other agencies such as the Borough
Planning Board can act. The Design Review Board was to be guided by the standards in

6
Borough of Ramsey. Design Review Board. Minutes of Meeting. July 24 2007, December 18 2007,
February 26 2008, April 22 2008 (HSBC), July 24 2007, May 22 2007 (Urban Auto); November 27 2007,
December 18 2007, February 26 2008, July 24 2007, November 27 2007, March 25 2008, June 24 2008,
July 22 2008, August 26 2008 (Board of Education); December 18 2007, February 27 2007, December 18
2007, February 26 2008 (Chase Bank); July 24 2007 (Classic Auto Spa).
7
Borough of Ramsey. Design Review Board. Minutes of Meeting. January 23 2007, July 24 2007,
February 27 2007, July 24 2007, June 24 2008, July 22 2008, October 28 2008 (Interstate Shopping
Center); December 18 2007, January 22 2008 (Capital One Bank); May 27 2008, April 22 2008 (Center
for Classical Acupuncture).

232

the ordinance in producing the recommendations. As is typical of design board approach,
and to expedite the approvals process, the record indicates that the DRC was liberal in its
dispensing of recommendations, and recommended to the applicants approaches that
would insure compliance.
For 20 Orchard Street the use of shutters or different window materials or design
that may give more character to the building was recommended. The DRB also requested
different aesthetically pleasing window styles, placement of shutters, and stone around
base of building. HSBC originally presented a modern building, and the DRC
recommended a more architecturally pleasing design with many suggested elements
being incorporated. For the Ramsey Pharmacy, the DRC recommended bringing the
building exterior to a turn of century look. The DRC recommended another Ramsey sign
for Nuova Cucina which would improve and give the sign a softer look. For smaller
projects the DRC issued some more specific recommendations, such as fonts for the
Center for Classical Acupuncture, colors for the Bellito sign, and text for Beltone‟s
8
.
Montville. The Township of Montville defines the mission of its Design Review
Committee (DRC) as that of promoting good quality design and attractive appearance of
properties to contribute to the amenities and attractiveness of an area and to maintain and
improve the economic value and stability of property
9
. In passing its judgments, the
Design Review Committee bases its decisions on design standards, the relation of

8
Borough of Ramsey. Design Review Board. Minutes of Meeting. December 18 2007, January 22 2008
(20 Orchard); July 24 2007, December 18 2007, February 26 2008, April 22 2008 (HSBC); August 26 2008
(Beltone‟s).
9
Township of Montville Municipal Code § 8-16.

233

proposed buildings to the environment, architectural design which is harmonious with the
character of existing development, design of building walls, open space, special features,
etc (Township of Montville). An analysis of the Montville Design Review Committee
decisions from 2007 and 2008 reveals a pattern of decision making based on general
considerations of context and scale. The following are some representative
recommendations.
One line of recommendations by the DRC had a focus on aesthetics that blend
with the architecture of the surrounding context. For the Old Bloomfield Road project,
the DRC recommended the design of the façade be consistent with the site. For Paisano‟s,
the DRC recommended that the tenant work with the community to the set theme, so that
with each tenant change, the theme remains constant. For the Mountain Care Center, the
applicant was advised to enhance buffering between building and site. For the Boiling
Spring Savings Bank, the design should address the existing strip mall to enhance the site
with architectural features to fuse the site elements together. The proprietors of the
Dunkin Donuts were advised to revise the „very intrusive‟ cup-logo
10
.
Another prevalent concern was with the architectural massing of proposed
projects. For the William Keating subdivision, the DRC expressed concern with the
mass of the façade. For the Korean Church, concerns with the mass of the building were
expressed. For the Montville Residency, the applicant was advised to make sure mass is
diffused in elevation view. Another line of commentary involved internal consistency in

10
Township of Montville. Design Review Committee. Minutes of Meeting. January 11 2007 (Paisano‟s);
June 26 2007, June 8 2008 (Mountain Care Center);November 1 2007, January 10 2008 (Boiling Springs
Bank); January 11 2007, November 1 2007 (Dunkin Donuts).

234

detailing. For the Elysium, the applicant was advised to consider using a background
color consistent with roofing color. For Chuck Landscaping, the DRC recommended re-
addressing the color theme to coordinate better with existing sign theme colors. For Paul
Miller Auto, there were concerns with the consistency with the design of the building and
the decorative fence
11
.
In illustrating its objectives the DRC usually makes general recommendations to
advance their goals. For the Montville Residency, the applicant was advised to use
different materials to breakdown the mass. The DRC suggested breaking up the façade of
the Sharpe Health and Fitness project to reduce monotony. For the All Brite Car Wash
project, when the digital sign was found not acceptable, the applicant was advised to find
another way to achieve intent. For the Elysium, the proprietor was advised to change sign
theme colors. The High School was advised to coordinate the sign with the opposing
Purple Heart monument
12
.
In other situations though, the DRC recommendations were more specific, but
nonetheless discretionary on the part of the applicant. For 57 Stiles Lane, it was
suggested that the owner add more porch columns and wrap around roof details to add
more detail to proposed buildings. For the William Keating subdivision, Rosario Design
Group, and Boiling Spring Savings, it was suggested that the applicant reconsider their

11
Township of Montville. Design Review Committee. Minutes of Meeting. November 1 2007 (William
Keating); August 26 2008 (Korean Church); August 26 2008 (Montville Residency); January 11 2007
(Elysium); August 26 2008 (Chuck Landscaping).

12
Township of Montville. Design Review Committee. Minutes of Meeting. August 26 2008 (Montville
Residency); March 19 2007 (Sharpe Health and Fitness); January 11 2007 (All Brite Car Wash); January
30 2008 (High School).

235

signs to possibly monument type signs. For smaller projects such as the business More
than Just a Kennel, the proprietor was asked consider an alternate graphic treatment
specified by the DRC, as were RBR investments and Welco.

6.3.2 Other SIDs with Design Review Authority
Other SIDs with design review boards in the greater Newark area include
Livingston and Millburn. In Northern New Jersey, Boonton, East Hanover, Morristown,
Wildwood, and in the Southern part of the state, Atlantic City complete the list. If the
case study cities, Bayonne and Maplewood, both SIDs have adopted guidelines that at
least ostensibly been style-neutral, there are examples to the contrary. Two SIDs with
established design review committees, Rutherford and Cranford have adopted guidelines
that are inclined towards traditional themes, while two others, Bloomfield and Newark,
have commenced due diligence on guidelines that are more tolerant of modernist themes.
Rutherford and Cranford. Rutherford is a borough in Bergen County. As with
many other communities in New Jersey whose residents commute to New York during
the day, Rutherford‟s building boom accelerated in the early twentieth century and
reached its apogee in the 1920s. This has created a communal identification with
Victorian Era architecture. When the Rutherford Business Improvement District was
created in 1996, a streetscape committee established design guidelines that would create a
Victorian „turn of the century‟ image (Rutherford Downtown Partnership).
The Rutherford design guidelines do not require new construction to emulate a
Victorian styles for obvious legal impediments, but the many exhortations for design that
236

is „sympathetic‟, „complementary‟ and „coordinating with its neighboring buildings‟
creates the expectation that emulation would be a easy route to compliance (Borough of
Rutherford). Other than that, the ordinance explicitly calls for traditional design solutions.
Materials wise, only traditional materials such as brick and stone are deemed acceptable.
Color wise, only traditional colors acceptable to historical preservationists are
encouraged. More generally, the regulations evince a disdain for modern design
solutions. Only traditional roof pitches are accepted, while flat roofs and blank walls are
discouraged.
Cranford is a township in Union County. Originally the town was named
Craneville for the homesteader who originally settled the area. As New York and
Brooklyn transplants settled the area in the 1870s, they proposed the change of name to a
more „dignified‟ one fitting of their social stature. In a few short years the town was
transformed from an agricultural hamlet to an upper middle class if not wealthy suburban
village dominated by commuters (Fridlington 2005). This history of bourgeois implants
lead to a lasting association of the city with the Victorian era (The Kiwanis Club of
Cranford 1971). A township river carnival by the Rahway River that bisects the town has
helped distinguish the town in the minds of its residents as the „Venice of New Jersey‟
(Township of Cranford 1986). This early history became a centerpiece of the SIDs
approach to place making.
In the 1980s the downtown was renovated with streetscape improvements to take
on a Victorian feel. A Victorian street clock was installed in the center of town. When the
Philadelphia firm of Wallace Robertson Todd was contracted to write the design
237

guidelines, the report clearly indicates that the consultants pushed the Victorian theme
(Wallace Robertson Todd 1982, 22). The report recommended a design manual be put
together and that its stipulations be enforced by a township design review committee.
When the city opted for SID design review, but the guidelines became code. Unlike in the
Rutherford code where the Victorian theme is not prescribed but insinuated, Cranford‟s
code explicitly states that the intent of the guidelines is to evoke „the Victorian
architectural era in style, color, material and design‟
13
. Secondarily comes the concern
with preserving the architectural integrity of buildings, and the idea of using materials
harmonious with the existing building stock such as brick, wood siding, and terra cotta.
Finally we also note a concern with classicism through the rule that all colors need be
from a palette of conforming shades maintained by the SID.
The reasons behind the espousal of a Victorian approach can be gleaned from the
situation at the time of the incorporation of the Cranford SID. Cranford sits between
Elizabeth and Plainfield, and did not want succumb to deterioration during the recession
of the early 1980s as was the case in nearby Roselle Park. There were tangible fears of
crime, and in a preemptive more, local residents and merchants teamed up to start a
Downtown Improvement Group which did not however survive for very long.
When Mr. Smartt of the Community Advocates suggested the SID form of
government, the chamber of commerce, township, business community, and residents all
supported the idea. Although the consultant said the Victorian style was predominant, it
was not really impression of the town‟s residents, but the idea was legislated anyways

13
Township of Cranford. Ordinance No. 2003-10.

238

because of the feeling that a strong character was necessary to stem the decline in ratables
and to invoke the upper class character of the township to community and prospective
business owners alike, I was informed by Meryl Layron, former director of the SID.
The Cranford Downtown Management Corporation (DMC) at first prepared
written reports, similar to those prepared by design review boards, to explain its position.
Later on, this practice was abandoned, and oral commentary was given to the applicant.
In one case, Mr. Calderone, an ophthalmologist, wished to erect a two story medical
building, and his drawings indicated a classical building with brick on the first floor and
siding thereafter. When the application was amended to create a full brick building, the
DRC objected on the account that this might be too overwhelming and objected to other
design matters such as window treatment, the inaccurate historicist façade, and mixed
materials. The application was approved with revisions taking into consideration the
DMC‟s comments
14
.
Bloomfield and Newark Iron Bound. Bloomfield is a township in Essex county
New Jersey. Bloomfield was incorporated from portions of Newark in the early
nineteenth century, and remains to this day characterized as a working class community
(Wikipedia). In 2007, Bloomfield initiated due diligence on to probe the implications of
empowering the local SID with design review authority. The stated goals for the
Bloomfield Town Center were to ensure the highest quality in design, architecture and
materials, to encourage an eclectic mix of architecture that successfully integrates a

14
Township of Cranford. Cranford Planning Board, Calderone Planning File.

239

variety of design styles, periods and types into the existing downtown fabric, and to
juxtapose the historic architecture with new architecture (Bloomfield Center Alliance).
What is very interesting about the Bloomfield design guidelines promulgation
process is that it was approached as a planning exercise that was kicked off with a
community visioning exercise and public design workshop. The town center was
conceived as a „main street‟, „civic center‟, and „commercial center‟, each with its‟ own
architectural approach. To structure the guidelines development and implementation,
each for neighborhood a character matrix was developed that was approached through a
definite Vibe (e.g. Diverse, Fun and Funky, Young Professionals, Event Street), Style
(e.g. Modern Industrial, Loft Style, Green Streets) and Palette (e.g. Salvaged Materials,
Metal, Masonry).
Although each neighborhood character needed to be considered when applying
the guidelines, the guidelines themselves were conceived as flexible as possible, calling
for design that is „sympathetic‟ to existing stock and to the streetscape. Other conditions
called for „attractive and quality materials, durability of materials, harmonious features
for building and architectural elements, scale, proportion, and streetscape rhythm‟ and
that „modern, contemporary facades shall only be allowed in new construction and shall
be sympathetic to the adjacent scale and proportions of more traditional buildings (ibid).
Newark‟s Ironbound SID on the other handhas developed in a once isolated part
of the city that was transformed into an industrial hub in the 19
th
century as iron,
chemical, brewing, tanning and leather industries flourished (Iron Bound Website).
Today the neighborhood still is characterized by an intermingling of residential, industrial
240

and commercial buildings. While much of Newark suffered the ravages of urban decline,
the relative isolation of the area has saved it from the ravages of highway construction
and large scale urban renewal. The Ironbound in the twentieth century has however been
shaped by a heavy and sustained immigration from Portugal, especially in the latter part
of the 1950‟s, and the cultural imprint has been sustained more recently by the influx of
Brazilian immigrants resulting in a vibrant business community (Newark Ironbound).
When the Ironbound Improvement District launched its efforts to adopt design
guidelines, these ties to mainland Europe and South America meant that local residents
were more open to modernist themes in architectural design, a fact translated in
preliminary guidelines that encouraged contemporary styles and approaches, I was told
by Mr. Grossman 2008, director of the Ironbound. The trepidation in city hall about such
a liberal approach has however stalled progress on the adoption of the guidelines as
political frictions over control over one of the city‟s most vibrant communities is yet to
find resolution.

6.3.3 The Springfield Avenue Partnership
In the Township of Maplewood, the Springfield Avenue Partnership has been
organized to manage the community‟s other main commercial corridor, Springfield
Avenue. As a state highway, Springfield Ave. was never considered a destination in its
own right. Springfield Avenue, on route from Newark to Morristown, had businesses that
reflect this „transitory‟ destiny, mentioned Elizabeth McDonald of the SAP in an
interview. It was never endowed with decent buildings, and was replete with fast food
241

chains, repair garages, dealerships, etc.
Even as early as 1966, local politicians had recognized the specific challenges on
Springfield Avenue, a two mile long stretch with auto-dependant services that is lacking
in terms of character. Seventeen years later, another 1983 survey of Springfield Avenue
found an absence of thematic harmony in signage, style, and height (Phillips Preiss
Shapiro 1983). The 1984 Master Plan also lamented the disharmonious signage, and
absence of a uniform style. Twenty years later in 2004 it was still the conviction that auto
retailing eroded the street‟s original Main Street „feel‟, and that it still suffers from an
image problem (Township of Maplewood).
In reality, what plagued Springfield Avenue was more than sub-par planning. The
Avenue was the main thoroughfare linking Maplewood to nearby, lower income
Irvington. Springfield Avenue also borders other troubled areas of Newark and Vauxhall
plagued with high crime areas, I was told by Elizabeth McDonald of the MVA. In a study
on economic revitalization, Milder (2004a) found that the fear of crime reportedly has been
one of the reasons that Maplewood‟s residents do not shop more frequently on Springfield
Avenue. The stigma of this association is so severe that when, by way of error the
„Welcome to Maplewood‟ sign was first erected misrepresenting the Sunoco Gas Station
as being in Irvington, the owners did not rest until it was repositioned to represent the
correct boundaries, I was told by Mr. Victor De Luca, former mayor of Maplewood.
It is in this context of these challenges that consultation on creating the SAP was
with put into motion by Mr. Donald Smartt of the Communtiy Advocates with input from
the local Hilton Neighborhood Association (Maplewood News-Record January 11, 1996).
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To build a sense of place on the street, the goal was to distinguish the Maplewood
segment of Springfield Avenue from the rest of the 2 –mile stretch spilling into the
neighboring townships, asserted Deborah Lyons of the SAP (Zingaro 2000b).
The township wanted to capitalize on a perceived waning interest in mega-mall
shopping. Physical improvements such as a planted median, lighting, and bus shelters as
well as sidewalk cafés and open spaces near civic buildings were mulled to transform the
thoroughfare to a veritable destination (Vickar-Fox 1998).
As plans for the SAP were under way, the SAP started considering plans for a
four node development strategy. To be able to effectuate their agenda, the city wrestled
control of the highway from the state (Zingaro 2000c). Work on the Prospect Ave. node
then ensued (Maplewood News-Record, July 27, 2000). As Milder (2004a) later
observed, this represented a real effort to stimulate the emergence of a pedestrian-based
commercial activity nodes on Springfield Avenue.
According to Ms. McDonald, many SIDs first initiated a façade grant program to
attempt to tackle physical improvements. It was quickly realized though that mandatory
guidelines, although more and time and resource consuming, were a more effective and
comprehensive approach. In the strategy to transform the avenue into a recognizable
place, Ms. McDonald, the SAP‟s director, composed design standards that put a premium
on flexibility. To insure a higher caliber of quality, the guidelines disallowed stucco
buildings and first-floor only brick buildings. As in the case of the MVA, the fact that no
strong character was present demanded a more focused relationship with the applicants.
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The SAP had a conscious approach to build business repertoire around family-
oriented businesses and trying to get couples who live in the district to open businesses.
This is meant to increases ownership of place. Eventually, property owners became very
cooperative. The SAP also helped connect merchants with landlords. They alerted
landlords to vacancies when word on the street is that a retailer is leaving.
Following up on a recommendation in the Master Plan,

Maplewood‟s Township
Committee designated Springfield Avenue between Indiana and Princeton as a
„Pedestrian Retail Business Zone‟

to encourage high coverage and a continuous street
wall (Milder 2004a). The SAP‟s intervention on was orchestrated by conceiving the
Avenue as two nodes (first node around Prospect Avenue, other around the library and
the municipal park). It was decided that the park node could not be redeveloped without
significant intervention, so a redevelopment zone was formed to encompass the area,
mentioned Mr. De Luca.
The proactive process of redevelopment also involved being able to advocate on
the behalf of developers to relax zoning requirements that were a hindrance the creation
of pedestrian friendly areas such as in the case of parking requirements. When the first
buildings were starting to be developed, developers were not accountable to drawings
shown to planning board. The SAP consequently started meeting with property owners
and guides them through the process of developing in town. Examples of success include
the Mormon Temple, where the owners wanted to a have blank wall to the street and
were forced to animate the façade.
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Chapter 7. Pragmatic, Regulative, and Normative Legitimacy
In the previous chapter, I illustrated issues that might arise in a situation where the
compromise of political imperatives allows an agency a margin of discretion in
administering the review process. I especially highlighted the proclivity for proactive
involvement. I did not particularly dwell on the issue of proactive involvement in the
legislative dimension, but can be determined as a matter of fact since both communities
delegated to the SIDs the task of guidelines promulgation.
The benefit of proactive involvement, I believe, is that the SIDs can steer the
involved parties to a conceptualization of proposed developments that is consistent with
its vision thus shaping the applicant’s understanding of the policy issues. An important
task in the proposed assessment framework described in earlier is to assess the legitimacy
of these processes and understand what role legitimacy constraints play in channeling this
discretion towards policy that ultimately is in the public interest and whether
consideration of these constraints made for adequate checks on opportunistic behavior.
From a pragmatic point of view, the results raise some interesting questions about
the interest of residents in issues of aesthetics beyond the small population of Caucasians
in Bayonne and high income residents in Maplewood. Consideration of legal issues
varies as expected, and in general the process in Maplewood seems to be more responsive
to these considerations. In a normative analysis, the process in Maplewood also seems to
stand on firmer footing. In a normative analysis, I will argue that the extension of design
review authority to SIDs puts in serious question the extent to which SIDs are subject to
245

popular accountability, the extent to which due process can be observed, and the extent to
which equal representation can be achieved.

7.1 Pragmatic Legitimacy of SID-administered Design Review
The following results are from a survey of residents of both localities whose aim
was to assess their views on the autonomy of the design review agency in terms of its
authority (legislative dimension), place character (substantive dimension), and the design
review process (procedural dimension). By this exercise, it is possible to gain some
perspective into the extent to which pragmatic legitimacy was an overriding concern. The
survey also asked the respondents to assess the legitimacy of SID-administered design
review in particular, and I aimed to untangle whether this perception of legitimacy was
correlated to residents’ preferences as they pertain to the legislative, substantive, and
procedural dimensions.
To reiterate the basics from framework elaborated in Chapter Three, pragmatic
legitimacy in terms of legislative/ input terms is gained if participation in setting the
guidelines meets local residents’ expectations. Procedural/ through-put legitimacy is
achieved if the process is administered to residents’ intentions. In terms of the
substantive/ output dimension, pragmatic legitimacy can be thought of as the fidelity with
which the SID executes the general public’s vision in terms of their vision in place-
making. For the purposes of this section, I will start with a discussion of substantive, then
move on to legislative and procedural preferences, followed by a discussion of
legitimacy.
246

I received replies from more than one hundred residents in each locality (Table
7.1). Since I mailed one thousand surveys in a random mailing in each township, this
makes for a response rate of 11.9% and 13.3% in Bayonne and Maplewood, respectively.
The rates are consistent with those obtained in other one shot mailings with no follow-up,
and the number of responses obtained is large enough to allow statistical generalization.

Table 7.1: Response Rate by Community

Community Count Percent
Bayonne 119 11.90%
Maplewood 133 13.30%

7.1.1 Descriptive Characteristics
To better understand the socio-economic profile of Bayonne and Maplewood
residents, the survey asked about residents’ choice of township, familiarity with the
downtown area, education, ethnicity, and income.
Education. In Bayonne, 30.2% of residents indicated that they had 12 years of
schooling or less, i.e. possibly a high school diploma or equivalent or less. Of the
remaining population, 32.8% indicated they had attained 16 years of education, i.e.
equivalent to a Bachelors degree. The remaining group of residents had more than 16
years of formal education. The mean educational attainment was 15.41 ±0.28 years
(p<0.05). Thus the proportion of residents that have 4 years of post high school education
was slightly more than those who do not (Table 7.2).
247

In Maplewood, 47.1% of residents indicated that they had 16 years of schooling
or more, i.e. possibly a college degree or equivalent. Of the remaining group of residents
41.1% have had some sort of post secondary education. The mean educational attainment
was 16.86 ±0.54 years (p<0.05). Concurrent with expectations, the residents of
Maplewood were generally more educated that their counterparts in Bayonne, with the
proportion of residents that have 4 years of post high school schooling larger than those
who do not. Compared to Maplewood, the residents of Bayonne were generally more
likely to not have completed high school (Table 7.2).
Ethnicity. The majority of the respondents n Bayonne indicated that they
identified ethnically as being Caucasian, and the largest minority of residents identified
as Hispanic. The high percentage of Caucasians as a share of the local population is
consistent with the history of the area as a ‘white’ working-class community. The
majority of the respondents in Maplewood indicated that they identified ethnically as
being Caucasian, and the largest minority of residents identified being African-American.
The high percentage of Caucasians as a share of the local population affirms the history
of the area as one of the ‘white’ suburbs of Newark (Table 7.2).
Income. In Bayonne, the highest percentage of residents (31.8%) indicated
having an annual household income between $80,000/ yr. and $100,000/ yr., although
16.4% also earned less than $40,000/yr. This is consistent with the perception of the
township as a middle class community. In Maplewood, the highest percentage of
residents, 65.9 %, indicated having an annual household income in excess of $100,000/
yr. An inspection of the distribution indicates that the income in Maplewood is skewed
248

towards the higher end. This is consistent with the perception of the township as an
enclave of affluence (Table 7.2).
Choice of residence. Most residents in Bayonne reported that the main reason
they reside in town was because of family and social ties, much more than those who
indicated practical reasons such as the ease of commute and other issues such as the
character of the township. This confirmation that residency is predicated on social
considerations reinforces the view that Bayonne residents still maintain many of the ties
that invoke the towns’ heyday as an immigrant, working-class community.

Table 7.2: Demographic Summary

Variable Bayonne Maplewood
Education
0-12 30.2% 11.8%
12 --16 32.8% 41.1%
16+ 37.0% 47.1%

Ethnicity
African- American 4.3% 14.7%
Asian 4.3% 2.3%
Caucasian 75.2% 73.6%
Hispanic-Latino 6.8% 2.3%
Other 9.4% 7.0%

Income
<$40k 16.4% 3.9%
$40-$60k 16.4% 4.7%
$60-$80k 13.6% 9.3%
$80-$100k 31.8% 16.3%
>$100k 21.8% 65.9%

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In Maplewood, most residents reported that the main reason they chose to reside
in town was because of the character of the township, much more so than those who
indicated social reasons such as family ties and practical reasons such as the ease of
commute. This confirmation that residency is predicated on character considerations
reinforces the view that Maplewood residents are attracted by lifestyle considerations
(Table 7.3).
Most concerned for. In Bayonne, the highest percentage of respondents indicated
that they believed a loss of community character and in second place high crime rates to
be the most pressing concerns for them. The fear for community character reinforces the
idea that its maintenance in the face of demographic change is important to most city
residents. The highest percentage of respondents in Maplewood indicated that they
believed a decrease in the performance of the school district and in second place the loss
of township character to be the most pressing concerns for them. The fear for educational
quality as the issue of most concern reinforces the idea that the maintenance of a unique
social-cultural profile is important to most township residents (Table 7.3).
Patronization of downtown. The highest percentage of residents in Bayonne
indicated that they frequented the downtown area on a weekly basis, followed by those
who indicated daily visits. This indicates high familiarity of most residents with
Broadway. The high familiarity with Broadway St. also possibly points to a high affinity
and hence concern of the planning of the downtown district. The highest percentage of
residents of Maplewood residents indicated that they frequented the downtown area on a
weekly basis, followed by those who indicated daily visits. This indicates high familiarity
250

of most residents with Maplewood Avenue. The high familiarity with Maplewood
Avenue also possibly points to a high affinity and hence concern of the planning of the
downtown district (Table 7.3).

Table 7.3: Residential Choices and Habits

Variable Bayonne Maplewood
Choice of residence
commute 20.3% 16.5%
social ties 46.6% 15.0%
character 13.6% 61.7%
school district 5.1% 2.3%
crime 10.2% 2.3%

stature

1.7%

2.3%

Most concerned for

commute 10.3% 0.8%
social ties 10.3% 4.6%
character 33.6% 26.0%
school district 6.0% 36.6%
crime 25.0% 14.5%
stature 3.4% 6.9%
business 11.2% 10.7%

Patronizing downtown

Daily 34.5% 35.9%
Weekly 42.2% 53.4%
Monthly 13.8% 6.1%
Less than monthly 9.5% 4.6%

7.1.2 The Substantive Dimension
Substantive goals for community. The respondents were asked to give their
opinions on whether they perceived the major objective of design review was to further
251

character, business, or civic goals. The differences in resident approvals of the various
goals can be evaluated in terms of the percentages of respondents expressing some level
of agreement with each statement. Another measure is the mean of the responses when
Likert scale input is treated as interval data. In Bayonne, respondents mostly agreed with
the goals of a pedestrian friendly environment (3F), commercial vibrancy (3A), and place
character (3B). Respondents in Maplewood mostly agreed with the goals of a pedestrian
friendly environment (3F) and commercial vibrancy (3A) as well. Place character (3B)
and cultural identity (3E) were also relatively important considerations (Table 7.4).

Table 7.4: Summary of Mean Ratings, % Agreeing, and Rank for Statements on
Substantive Dimension

Q3: As a goal, it is important to make Downtown Bayonne a place
that …

Bayonne
Item %
Agree
Rank
by %
agree
Mean s.d. Rank
by
mean
3A: has diverse mix of restaurants, cafes, and
shops
92.4% 3 6.18 1.22 2
3B: has distinctive character 95.8% 1.5 6.07 0.93 3
3C: allows for markets, fairs, or concerts 81.5% 5 5.5 1.48 5
3D: has variety of offices and services 85.7% 4 5.53 1.30 4
3E: reflects community’s cultural identity 73.9% 6 5.29 1.42 6
3F: encourages walking, sitting, and enjoying
scenery
95.8% 1.5 6.41 0.92 1
Maplewood
3A: has diverse mix of restaurants, cafes, and
shops
97.7% 2 6.62 0.65 2
3B: has distinctive character 97.0% 3 6.26 0.88 3
3C: allows for markets, fairs, or concerts 79.7% 6 5.54 1.37 5
3D: has variety of offices and services 80.5% 4.5 5.42 1.06 6
3E: reflects community’s cultural identity 80.5% 4.5 5.71 1.28 4
3F: encourages walking and enjoying scenery 99.2% 1 6.62 0.67 1

252

To ascertain the significance of these findings, paired samples t-tests of the mean
ratings were performed. In Bayonne, this test reveals that residents valued the goal of a
pedestrian friendly environment (3F) somewhat more (p<0.1) than those of commercial
vibrancy (3A) and distinctive character (3B). Residents saw the goal of business
promotion (3D), public events (3C) and cultural identity promotion (3E) to be equally
less important. In Maplewood, the analysis reveals that residents valued a place that
encouraged pedestrian friendly environment (3F) and commercial vibrancy (3A) the
most. Residents valued these two goals significantly more than they did those of
community character (3B) and cultural identity (3E). At the bottom of the list was the
goal of business promotion (3D) (Table 7.5).

Table 7.5: Paired Samples T-test for Substantive Dimension

Bayonne

Pair Mean s.d. t p

3F-3A 0.23 1.30 1.91 ~

3A-3B 0.12 1.46 0.88 ns

3B-3D 0.54 1.58 3.71 ***

3D-3C 0.03 1.24 0.30 ns

3C-3E 0.20 1.80 1.22 ns

Maplewood

3F-3A 0.01 0.83 0.10 ns

3A-3B 0.36 0.89 4.67 ***

3B-3E 0.55 1.23 5.16 ***

3E-3C 0.17 1.58 1.21 ns

3C-3D 0.12 1.41 0.98 ns

*** =p<0.001, ~=p<0.1

253

Given the ‘extremity’ bias typical of Likert Scale questions, respondents were
also asked to make a ‘forced choice’ between these goals. In fact, once asked to make a
choice, commercial vibrancy (3A) was rated by far as the most important goal in both
communities (Table 7.6). In both communities, these results indicate that Bayonne’s and
Maplewood’s residents are no different than those of other small cities and towns who
place a premium on walkable, compact downtowns. Character and identity issues were
more important to Maplewood residents than to Bayonne’s, but the fact that they were
not perceived as being the most important in both communities is noteworthy. These
results are important in interrogating the priorities of the respective SIDs when they put a
premium on issues of design and place-making.

Table 7.6: Most Important Substantive Dimension

Q4: What would be the single most important goal from the list
above?

Item
Bayonne Maplewood
3A: has diverse mix of restaurants, cafes, and shops 41.7% 57.1%
3B: has distinctive character 14.8% 14.3%
3C: allows for markets, fairs, or concerts 7.0% 2.3%
3D: has variety of offices and services 4.3% 3.0%
3E: reflects community’s cultural identity 3.5% 7.5%
3F: encourages walking, sitting, and enjoying scenery 28.7% 15.8%

Opinions on place character. Residents were also asked to provide their opinions
more specifically on the kind of character that they would like each town center to have.
Residents of Bayonne overwhelmingly perceived their town as a traditional, casual place.
254

Although the identification with traditional and casual character is consistent with
expectations, there was no clear sense as to whether they perceived the town as being
more ‘quaint’ than ‘urban’. Residents of Maplewood, on the other hand, overwhelmingly
perceived their town as a traditional, quaint place as consistent with expectations.
Although identifying with traditional and quaint character was consistent with
expectations, a majority stated however that they see the town as being more ‘casual’
than ‘upscale’ (Table 7.7).
These results show that although the residents of both localities did not perceive
character issues to be central to their priorities as the analysis for the previous section
illustrates, they did however have for the most part defined ideas as to the character they
wished the respective localities to have. It is interesting also that the results from
Maplewood put into question residents’ investment in the township as an exclusive place,
which seems to guide SID actions. The preference for traditional character also raises
interesting questions about the SIDs’ investment in a modern design philosophy.

Table 7.7: Place Character

Item Bayonne Maplewood

1-A

Traditional 69.6% 93.9%

Modern 30.4% 6.1%

1-B

Casual 84.9% 63.4%

Upscale 15.1% 36.6%

1-C

Quaint 49.5% 92.4%

Urban 50.5% 7.6%

255

Scope of regulation in built environment. Residents were also asked to offer their
opinions as to what scope should design review cover, whether buildings, businesses, or
simply the outdoor environment. A majority of residents in Bayonne also reported that
regulating the design aspects of buildings, businesses, and public places are all important
undertakings whether measured by the mean of the their responses on the Likert Scale or
the percentage of respondents who regarded each undertaking to be ‘extremely
important’. The results from Maplewood offer similar conclusions. In both cases,
however, the design regulation of businesses and shops was perceived to be somewhat
less important than the buildings and public places. This is also an interesting finding
given the SIDs’ primary commitment is to the design regulation of businesses (Table
7.8).

Table 7.8: Summary of Mean Ratings, % Agreeing, and Rank for Statements

on Scope of Design Review

Q2: ... how important is it to pay close attention to the following?

Bayonne

Item %
Agree
Rank
by %
agree
Mean s.d. Rank
by
mean

2A: Architectural styles, Materials, and Details 99.2% 1.5 6.24 0.77 2

2B: Themes and Designs of shops and restaurants 93.3% 3 6.06 1.12 3

2C: Public outdoor spaces, Benches, Planters 99.2% 1.5 6.36 0.82 1

Maplewood

2A: Architectural styles, Materials, and Details 99.2% 1 6.38 0.75 1

2B: Themes and Designs of shops and restaurants 94.7% 3 6.02 1.00 3

2C: Public outdoor spaces, Benches, Planters 97.0% 2 6.25 0.88 2

256

In Bayonne, whether residents favored a traditional or modern character or an
upscale or casual one, they did not think differently of what needed to be regulated to
effectuate that goal. However those who favored a quaint character were significantly
more interested in regulating building design than those favoring an urban character. For
Bayonne, this confirms that those interested in a preserving the scale of the town as it is
today are more concerned about the regulation of building design (Table 7.9).

7.1.3 The Legislative Dimension
Input in the legislative process. Given these substantive priorities and probing the
issue of autonomy, the respondents were also asked to give their opinions on whether
they perceived the most important party to offer input to be that of the public, the
government, or various other business and landed interests. The differences here can also
be ascertained in terms of the mean of each statement and the percentages of respondents
expressing some level of agreement with each statement.

Table 7.9: Variation of Scope of Design Review

Bayonne
1C
Mean s.d. mean
diff. p
2A: Architectural styles, Materials, and
Details
Quaint 6.40 0.618 0.31 *
Urban 6.09 0.865
2B: Themes and Designs of shops and
restaurants
Quaint 5.96 1.278 0.06 ns
Urban 6.02 1.145
2C: Public outdoor spaces, Benches,
Planters, etc.
Quaint 6.51 0.626 0.25 ns
Urban 6.26 0.999
* =p<0.05

257

In Bayonne, the mean ratings for the input dimension options reveals that
residents valued a process that involved city residents (5A) more significantly than any
other group, although they indicated that the involvement of property (5C) and business
owners (5E) is also important. There was little interest in input from professional
consultants or local government agencies. In Maplewood, the mean ratings reveals that
residents valued a process that involved city residents (5A) more significantly than any
other group, although they indicated that the involvement of business owners (5E) and
property owner (5C) should also be of paramount importance. There was little interest in
input from local organizations or professional consultants (Table 7.10).

Table 7.10: Mean Ratings, % Agreeing, and Rank for Statements on
Legislative Dimension

Q5: In deciding on design guidelines … it is important to involve the following groups:

Bayonne
Item %
Agree
Rank
by %
agree
Mean s.d. Rank
by
mean
5A: Residents of the city 96.6% 1 6.42 0.93 1
5B: State government agencies 61.3% 6 4.53 1.63 6
5C: Downtown property owners 92.4% 2 6.17 1.04 2
5D: Professional consultants 77.1% 5 5.38 1.64 5
5E: Downtown business owners 90.8% 3 6.03 1.25 3
5F: Community organizations in city 80.7% 4 5.59 1.45 4
Maplewood
5A: Residents of the city 98.5% 1 6.56 0.69 1
5B: State government agencies 51.1% 6 4.53 1.73 6
5C: Downtown property owners 91.7% 3 5.96 1.05 3
5D: Professional consultants 82.0% 5 5.49 1.24 5
5E: Downtown business owners 97.7% 2 6.2 0.81 2
5F: Community organizations in city 86.5% 4 5.68 1.17 4

258

The results from the paired samples t-tests confirm the significance of the priority
given to input by city residents over input by both business and property owners in
Bayonne. In Maplewood, the same conclusions are validated, in addition to the fact that
residents viewed the involvement of business owners to be more important than that of
property owners (Table 7.11).
Given the bias of ‘extremity’ as well, residents were also asked to make a ‘forced
choice’ between the options. When asked to make a forced choice, Bayonne residents
indicated that the opinions of city residents were by far the most important goal. Here the
priority of input from business, property, and other interests trailed much further behind.

Table 7.11: Paired Samples T-test for Input Dimension

Bayonne

Pair Mean s.d. t p

5A-5C 0.25 1.30 2.12 *

5C-5E 0.13 1.07 1.37 ns

5E-5F 0.44 1.26 3.85 ***

5F-5D 0.19 1.45 1.46 ns

5D-5B 0.86 1.55 6.05 ***

Maplewood

5A-5E 0.37 0.92 4.63 ***

5E-5C 0.23 0.86 3.16 **

5C-5F 0.28 1.38 2.32 *

5F-5D 0.20 1.64 1.38 ns

5D-5B 0.96 1.86 5.95 ***

*** =p<0.001, **=P<0.01, *=P<0.05, ~=p<0.1

The same conclusions are reached by the analysis of results from Maplewood
residents choices. In the case of Maplewood, though, residents prioritized business
259

owners’ involvement as a distant second over property owners’ involvement. What these
attitudes on input reveal is that input legitimacy is granted by local residents, but that
those with daily experience with Broadway and Bayonne should also be involved (Table
7.12).

Table 7.12: Most Important Input Dimension

Item
Bayonne Maplewood

5A: Residents of the city 59.1% 67.7%

5B: State government agencies 1.8% 0.0%

5C: Downtown property owners 12.7% 7.5%

5D: Professional consultants 10.9% 8.3%

5E: Downtown business owners 10.9% 12.0%

5F: Community organizations in city 4.5% 4.5%

7.1.4 The Procedural Dimension
Procedural preferences in regulation. The survey also asked respondents their
views of the ideal method of administering regulation from a procedural point of view. In
Bayonne, respondents mostly agreed with the need to take into account the merits and
qualities of each project (7A), general community support (7B), and the opinions of those
attending hearings (7E). In Maplewood, respondents mostly agreed with the need to take
into account the specificities of the project (7A), contextual factors in the designs of
buildings in the area (7C), and general community support (7B) (Table 7.13). Thus in
Bayonne, the mean ratings for procedural dimension options reveal that residents believe
that a case by case approach that considers the merits and qualities of each project is most
suitable, followed by a process that takes into account residents opinions. The same
260

interest in Maplewood in a case by case approach that considers the merits and qualities
of each project is also evident, followed by fidelity to contextual issues and community
support.

Table 7.13: Mean ratings, % Agreeing, and Rank for Statements on Procedural
Dimension

Q7: In reviewing the designs o … the following considerations should be a priority:

Bayonne

Item % Agree Rank
by %
agree
Mean s.d. Rank
by
mean

7A: Merits and qualities of each project 93.3% 1 6.24 0.98 1

7B: General community support for the project 92.4% 2 6.03 1.10 2

7C: Designs of other buildings in downtown area 85.7% 3 5.55 1.29 4

7D: Exact text of the design guidelines 68.9% 5 5.11 1.32 5

7E: Opinions of the public attending hearing 84.9% 4 5.63 1.35 3

7F: Reviewers’ independent judgments 65.3% 6 4.81 1.50 6

Maplewood

7A: Merits and qualities of each project 99.2% 1 6.51 0.61 1

7B: General community support for the project 93.2% 3 6.01 0.93 3

7C: Designs of other buildings in downtown area 98.5% 2 6.1 0.75 2

7D: Exact text of the design guidelines 69.9% 6 5.19 1.22 5

7E: Opinions of public attending hearing 85.7% 4 5.49 1.14 4

7F: Reviewers’ independent judgments 73.7% 5 5.13 1.25 6

A paired samples t-tests was conducted to ascertain the significance of these
results. In Bayonne, the preference for a case by case approach was somewhat significant
(p<0.1), though the preference for general community support was more significant than
other considerations. In Maplewood, the preference for a case by case approach was
261

significantly higher than that for other considerations (Table 7.14). When asked to make
a choice, the preference for the merits and qualities of each project in Bayonne was by far
the most important goal. The results can be gleaned from the responses of Bayonne
residents. This might indicate a general tolerance for planners’ discretion in
administration if grounded in achieving the potential of specific projects (Table 7.15).

Table 7.14: Paired Samples T-test for Procedural Dimension

Bayonne

Pair Mean s.d. t p

7A-7B 0.20 1.23 1.79 ~

7B-7E 0.40 1.13 3.89 ***

7E-7C 0.08 1.43 0.58 ns

7C-7D 0.45 1.52 3.20 **

7D-7F 0.30 1.60 2.02 *

Maplewood

7A-7C 0.41 0.91 5.22 ***

7C-7B 0.09 1.01 1.03 ns

7B-7E 0.52 0.95 6.30 ***

7E-7D 0.30 1.36 2.55 *

7D-7F 0.06 1.48 0.47 ns

*** =p<0.001, **=P<0.01, *=P<0.05, ~=p<0.1

Table 7.15: Most Important Procedural Dimension

Item
Bayonne Maplewood

7A: Merits and qualities of each project 43.9% 55.6%

7B: General community support for the project 32.5% 21.1%

7C: Designs of other buildings in downtown area 6.1% 14.3%

7D: Exact text of the design guidelines 2.6% 0.0%

7E: Opinions of the public attending review hearing 14.0% 4.5%

7F: Reviewers’ independent judgments 0.9% 1.5%

262

7.1.5 Role of the Regulatory Agency
Role of regulatory agency. Bayonne residents were also asked what they expected
was the most important goal for a regulatory agency. The responses on the role of the
regulatory agency shows that they value responsibility for consequences of decisions
(9D) the most, followed by efficiency in decision making (9C). Interestingly enough,
Maplewood residents valued the same priorities, followed by creativity in guidelines
promulgation (9B). In both cases, the perception of the role of the regulatory agency
shows that they value an issue of interest to this study, helping applicants propose
projects consistent with the design guidelines, significantly less than other priorities
(Table 7.16). The paired samples t-tests below confirm the significance of the differences
between the median scores on the goals of responsibility, efficiency, and creativity. The
remaining scores were not significantly differentiated.

Table 7.16: Summary of Mean Ratings, % Agreeing, and Rank for Statements
on Role of Regulatory Agency

Q9: The agency responsible for design review should
prioritize the following:

Bayonne
Item %
Agree
Rank
by %
agree
Mean s.d. Rank
by
mean
9A: Judging all projects with same set of standards 86.4% 6 5.92 1.33 5
9B: Creativity in making guidelines for changing times 92.4% 3 6.03 0.94 3
9C: Efficiency in making decisions 95.0% 1.5 6.31 0.82 2
9D: Taking responsibility for consequences 95.0% 1.5 6.45 0.99 1
9E: Most objective interpretation regulations 89.1% 5 5.87 1.02 6
9F: Helping propose projects consistent with guidelines 90.8% 4 5.99 0.10 4

263

Table 7.16 (Cnt’d)

Maplewood
Item %
Agree
Rank
by %
agree
Mean s.d. Rank
by
mean

9A: Judging all projects with same set of standards 88.0% 5 5.98 1.16 4
9B: Creativity in making guidelines for changing times 92.5% 3 6.05 1.00 3
9C: Efficiency in making decisions 96.2% 1 6.2 0.76 2
9D: Taking responsibility for consequences 94.7% 2 6.22 0.85 1
9E: Most objective interpretation regulations 83.5% 6 5.53 1.15 6
9F: Helping applicants propose projects consistent with
guidelines
91.7% 4 5.93 1.00 5

Table 7.17: Paired Samples t-test for Role of Regulatory Agency

Bayonne

Pair Mean s.d. t p

9D-9C 0.134 0.791 1.854 ~

9C-9B 0.277 0.956 3.164 **

9B-9F 0.042 1.145 0.4 ns

9F-9A 0.076 1.497 0.553 ns

9A-9E 0.051 1.351 0.409 ns

Bayonne

Pair Mean s.d. t p

Maplewood

9D-9C 0.02 0.87 0.3 ns

9C-9B 0.14 1.08 1.52 ns

9B-9A 0.08 1.47 0.59 ns

9A-9F 0.05 1.44 0.36 ns

9F-9E 0.41 1.34 3.50 ***

*** =p<0.001, **=P<0.01, *=P<0.05, ~=p<0.1

264

When asked to make a choice, efficiency considerations were reported to be of the
highest priority for Bayonne and Maplewood residents. ‘Helping applicants propose
projects consistent with the design guidelines’ was also reported to be less significant
than responsibility, efficiency, and creativity as the most important goals for a regulatory
agency. This illustrates that residents are more interested in the regulatory agency acting
conservatively in interpreting its role (Table 7.18).

Table 7.18: Most Important Role for Regulatory Agency

Item
Bayonne Maplewood
9A: Judging all projects with same set of standards 20.0% 24.0%
9B: Creativity in making guidelines for changing times 21.7% 21.7%
9C: Efficiency in making decisions 21.7% 24.8%
9D: Taking responsibility for consequences 20.0% 10.1%
9E: Striving for the most objective interpretation regulations 4.3% 3.1%
9F: Helping applicants propose projects consistent with
guidelines
12.2% 16.3%

7.1.6 The Perception of Legitimacy of SID-administered Design Review
Perception of legitimacy as per the tasks of design review. Given the priorities of
both localities’ residents concerning the legislative, substantive, and procedural
dimensions of design regulation, the other goal of the survey was to gain insight into
how each township’s residents’ assessed the local SID’s involvement in design review.
To that end, the survey asked the respondents to assess their perception of agency
involvement in five typical tasks of the design review process, as illustrated in the chapter
on research design.
265

Table 7.19 illustrates that residents of Bayonne believed that it was more
appropriate for the SID to be engaged in the visioning and legislative aspects of the
design review process (i.e. in providing input on and writing design guidelines) rather
than in the subsequent tasks of design review. A Planning Board or Design Review
Committee’s involvement in those tasks was considered to be more legitimate. As in
Bayonne, Maplewood residents believed that it was more appropriate for the SID to be
engaged in the visioning and character setting aspects of the process. The identification of
the SID with visioning might be recognition by residents that as a quasi-public entity, it
may not be accountable to the residents at large when it comes to the decision making.
Perception of legitimacy as per the legitimacy index. As mentioned earlier, I
summated the categorical responses on the perception of the involvement of each entity
or agency in the various tasks of design review into an ‘index of legitimacy’. The index
which summates the categorical responses on the tasks listed above was weighted heavier
on the decision making tasks as opposed to the consultative tasks to both account for the
breadth of the tasks of design review but also to put emphasis on the crucial tasks that are
complicated in an act of delegation.
For both Bayonne and Maplewood, the means of the legitimacy indices show
comparable scores for both Planning Board and Design Review Committee involvement
and a lower score for SIDs. This leads to the interesting conclusion that residents of
Bayonne and Maplewood perceive any ‘public’ agency involvement, whether Planning
Board’s or Design Review Committee’s, to be more legitimate than ‘quasi-public’ agency
involvement in the form of SID-administered design review (Table 7.20).
266

Table 7.19: Approval of Involvement in Tasks of Design Review

Q11: Which agency do you think should be involved in
each task

PB DRC SID
B M B M B M
Q11-A: provide input on writing design
guidelines?
65.5% 5.5% 71.4% 7.8% 57.6% 28.4%
Q11-B: write the design guidelines? 53.4% 24.2% 60.2% 24.8% 40.3% 31.2%
Q11-C: help applicants adhere to design
guidelines?
47.9% 25.8% 72.3% 21.7% 42.9% 17.4%
Q11-D: review projects for conformity to
guidelines?
52.9% 22.7% 63.9% 19.4% 34.5% 9.2%
Q11-E: approve/reject reviewed projects? 69.7% 21.9% 53.8% 26.4% 38.7% 13.8%
PB: Planning Board; DRC: Design Review
Committee; SID: Special Improvement District

B: Bayonne; M: Maplewood

The mean differences and paired sample t-tests summarized in the table below
confirm the statistical significance of these differences in score on the indices, with
Bayonne residents strongly in favor of Planning Board engagement in design review at
4.35, and much less so SID involvement at 2.90 out of 7. In Maplewood, residents
strongly legitimated Planning Board engagement in design review at 4.45, and much less
so SIDs at 2.71 (Table 7.21).

Table 7.20: Legitimacy Index
Bayonne Maplewood
Agency Mean s.d. Mean s.d.
Planning Board 4.13 2.11 4.45 1.92
Design Review Committee 4.35 2.07 4.43 2.05
Special Improvement District 2.90 2.16 2.71 2.22

267

Table 7.21: Paired Samples T-test for Indices of Legitimacy

Bayonne Maplewood
Mean s.d. t p Mean s.d. t p
PB-DRC 0.23 2.72 0.92 ns 0.02 2.51 0.10 ns
DRC-SID 1.23 2.66 5.01 *** 1.71 2.71 7.30 ***
PB-SID 1.45 2.69 5.86 *** 1.95 2.27 9.91 ***
*** =p<0.001

PB: Planning Board; DRC: Design Review Committee; SID: Special
Improvement District

The legitimacy index and demographic and predisposing variables. The next step
involved assessing the differences in the perception of legitimacy by demographic and
predetermining factors.
Choice of residence: In Bayonne and Maplewood, differences in legitimacy by
choice of residence were not significant, indicating that both those who resided in
Bayonne and Maplewood because of affinity and convenience were equally critical of
SID involvement.
Familiarity with downtown: In Bayonne and Maplewood, differences in
legitimacy by familiarity with downtown were not significant.
Education: In Bayonne, there was some evidence (p<0.10) that the perception of
the legitimacy of Planning Board or public involvement in design review increases with
education while Maplewood differences by education were not significant (Table 7.22).
Ethnicity: In Bayonne, the more significant observation was that those who
identified as Caucasian viewed SID involvement to be more legitimate than those who
identified as African-American (p<0.05). No differences were found for Maplewood.
268

That Caucasians in Bayonne were relatively more inclined to support the delegation of
design review irrespective of income might lend credence to the arguments for design
review predicated on the fear of demographic change outlined earlier (Table 7.23).

Table 7.22: Perception of Legitimacy and Education

PB DRC SID
Stdzd Coeff p Coeff p Coeff p
Bayonne
Education 0.157 ~ 0.011 ns 0.024 ns
Maplewood
Education 0.068 ns 0.031 ns 0.082 ns
~ =p<0.10

PB: Planning Board; DRC: Design Review Committee; SID: Special
Improvement District

Income: No difference in the perception of legitimacy by income was found in the
case of Bayonne. In Maplewood, those reporting income greater that 100k/ year reported
higher perceived legitimacy for SID involvement than those reporting income between
40k and 60k/ year. That those higher on the income scale, irrespective of ethnicity,
would be more inclined to support SID management of design review might reflect a
heightened concern with the changing social profile of the township (Table 7.24).
The critical task of approval and demographic variables. Another approach to
understand the most important factors that are correlated with legitimacy is to consider
only the most ‘critical’ task on the legitimacy index, i.e. the authority of approval or
denial of applications (Question 11E-SID). It is worth noting here that there was
significant association between the authority of approval or denial of applications and
269

residents’ reasons for living in Bayonne. Those who cited the choice of Bayonne because
of convenience, though in the minority, showed significantly more approval for SID
involvement (p<0.05). The same is true of those with low familiarity with downtown,
also in the minority (p<0.059). But also by this measure ethnic minorities were also
significantly more opposed to SID involvement. The vehement opposition of minorities
to SID involvement in design review is particularly noteworthy (Table 7.25).

Table 7.23: Perception of Legitimacy and Ethnicity

Bayonne Maplewood
Ethnicity ethnicity Mean difference p ethnicity Mean difference p
Caucasian A-American 1.16 * A-American 0.12 ns
Asian 1.56 ns Asian 0.53 ns
Hispanic 0.78 ns Hispanic 1.53 ns
Other 1.42 ns Other 0.86 ns
* =p<0.05

Table 7.24: Perception of Legitimacy and Income

Bayonne Maplewood
Income Income Mean difference p Income Mean difference p
>$100k <$40k
0.39 ns
<$40k
0.6 ns

$40-$60k
0.11 ns
$40-$60k
1.5 *

$60-$80k
0.63 ns
$60-$80k
1.25 ns

$80-$100k
0.22 ns
$80-$100k
0.95 ns
* =p<0.05

270

Table 7.25: Resident Characteristics and SID Authority to
Approve Projects

Bayonne

Q11-E3: SIDs and authority to approve or reject
projects
No Yes
Pearson Chi-
square p
12 Choice of
residence
Social affinity
64.7% 35.3% 3.39 ~
Convenience
33.3% 66.7%

Total
61.7% 38.3%

14 Familairity w/
town
Low familiarity
40.7% 59.3% 3.57 ~
High familiarity
63.3% 36.7%

Total
61.7% 38.3%

16 Ethnicity
Other
86.2% 13.8% 9.913 **
Caucasian
53.4% 46.6%

Total
61.7% 38.3%

** =p<0.01, ~=p<0.1

In Maplewood, it is worth noting here that there was no significant association
between the most critical task on the index, the authority of approval or deny
applications, and any of the socio-economic or predisposing variables.

7.1.7 Legitimacy of SID-administered Design Review and Substantive, Legislative,
and Procedural Considerations.
Another goal of this study is to understand the relationships, if any, between the
goals rated highest by the respondents on substantive, legislative, and procedural
dimensions and the perception of the legitimacy of SID-administered design review.
271

Legitimacy index and substantive considerations. No differences in legitimacy are
reportable as measured by the legitimacy index in both Bayonne and Maplewood.
Whatever residents thought the most important goal of design review should be, they
thought lowly of SID input.
The critical task of approval/ denial and substantive considerations. When
measured by the most ‘critical’ task on the legitimacy index, the authority of approval or
denial of applications, there also is no significant association between approval/
disapproval of SID authority and residents substantive priorities of design review. In
Maplewood however those who responded that they valued a place that encourages a
pedestrian friendly environment (3F, 4F), the majority as we saw previously,
overwhelmingly disapproved of SID involvement at 85.7% (Table 7.26).

Table 7.26: Public Interaction by SID Authority to

Approve Projects

4F: Place that encourages walking, Q11-E3: Special Improvement District

sitting, and enjoying the scenery should approve/reject reviewed projects?

Pearson

No Yes Chi-square p

Disagree 85.7% 14.3% 10.473 ~

Agree 21.7% 6.0%

Total 62.4% 37.6%

~ =p<0.1

The critical task of approval and substantive considerations dichotomized. Yet
another way to understand the legitimacy of SID-administered design review is to
dichotomize the responses on the different substantive goals according to expressed
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agreement or disagreement with any specific goal. Those who checked ‘strongly agree’,
‘agree’, and ‘somewhat agree’ were considered in agreement for the purposes of this
analysis. Once analyzed in this fashion the only noticeably interesting observation would
be that for those who disagreed business promotion was an important goal, there was a
somewhat higher approval of SID involvement (p<0.1) (Table 7.27).
The association between legitimacy and the type of character Bayonne residents
sought (whether traditional or modern, quaint or urban, upscale or casual) was also
analyzed. No significant correlations were found.

Table 7.27: Business Promotion by SID Authority to Approve Projects

Bayonne

3D: A place that has a variety Q11-E3: Special Improvement District

of offices and services should approve/reject reviewed projects? Pearson

No Yes Chi-square p

Disagree 41.2% 58.8% 3.402 ~

Agree 64.7% 35.3%

Total 61.3% 38.7%

~ =p<0.1

In Maplewood, for those who agreed that a pedestrian friendly environment was
important, a majority of the residents, there was a markedly higher disapproval of SID
involvement in design review (Table 7.28). For those in Maplewood who agreed cultural
identity was an important goal, which ranked third as per the analysis at the beginning of
the section, there was a somewhat higher approval of SID involvement (p<0.1). So
although character was not the overriding concern in general, for those for whom it was,
there was a perception that SID involvement is legitimate, while for those whom it
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wasn’t, there was again an even larger perception that SID involvement was illegitimate
(Table 7.29).

Table 7.28: Public Interaction by SID Authority

to Approve Projects

Maplewood

4F: Place that encourages walking, Q11-E3: Special Improvement District

sitting, and enjoying the scenery should approve/reject reviewed projects?

Pearson

No Yes
Chi-
square p

Disagree 85.7% 14.3% 10.473 ~

Agree 21.7% 6.0%

Total 62.4% 37.6%

~ =p<0.1

Table 7.29: Place Character by SID Authority to Approve Projects

Maplewood

3E: reflects the
surrounding Q11-E3: Special Improvement District
community’s cultural
identity
should approve/reject reviewed
projects? Pearson

No Yes Chi-square p
Disagree 76.9% 23.1% 2.903 ~
Agree 58.9% 41.1%
Total 62.4% 37.6%
~ =p<0.1

The association between legitimacy and the type of character Maplewood
residents sought was also analyzed. Although the majority had indicated a preference for
traditional character, those who preferred a modern one also thought positively of SID’s
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approving/ rejecting design proposals. No association existed with the other dimensions
of character. In some ways this validates the SIDs goals, only that they represent the
interests of a minority of residents (Table 7.30).

Table 7.30: Character of Place by SID Authority to Approve Projects

Maplewood

1A
Q11-E3: Special Improvement District

should approve/reject reviewed projects?

No Yes
Pearson Chi-
square p

Traditional 65.0% 35.0% 2.454 ~

Modern 37.5% 62.5%

Total 63.4% 36.6%

~ =p<0.1

For the legislative dimension, I checked for the association between the
perception of legitimacy as an index and input concerns. For Bayonne and Maplewood
residents, there seemed to be no significant difference in legitimacy for residents who had
different priorities on the input dimension. When measured by the most ‘critical’ task on
the legitimacy index, the authority of approval or denial of applications, there also was no
significant association between the approval/ disapproval of SID authority and residents
input priorities of design review. An analysis of legitimacy by the authority to approve/
reject proposals and input measurement according who expressed agreement or
disagreement with the specific goal was also performed. No significant association was
found. The same analyses were performed for the correlation between the perception of
legitimacy and procedural priorities. No significant correlations were found.
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7.1.8 Legitimacy of SID-administered Design Review, Role of the Regulatory
Agency and Conclusions.
In Bayonne, no goal for the regulatory agency could better explain the differences
in the legitimacy as measured by the legitimacy index than any other. Alternatively
judging by the critical task of approval/ denial of applications, no significant differences
were found in the low perception of legitimacy of SID design review, whether residents
prioritized efficiency, accountability, or proactive involvement. In an exercise where I
looked for differences in the perception of legitimacy by the most important goal of the
regulatory agency, no significant deviation was found in the low perception of legitimacy
of SID design review in both Bayonne and Maplewood.
I also considered variations in the perception of legitimacy defined as the
authority to approve/ deny applications with residents’ perceptions of the most important
goal of a regulatory agency. In this analysis, as well no significant results were found.
Considering the association between the perception of legitimacy as the measure of the
critical task of the agency and a dichotomized measure of agreement/ disagreement with
the different goals the regulatory agency can prioritize, no significant findings are
apparent as well.
In Maplewood, I also considered variations in the perception of legitimacy
defined as the authority to approve/ deny projects with residents’ perceptions of the most
important goal of a regulatory agency. Those who professed responsibility in decision
making, a majority, were even more vehemently opposed to SID involvement (Table
7.31).
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Table 7.31: Single Most Important Role of Regulatory Agency and SID
Authority to Approve Projects

Maplewood

Q11-E3: Special Improvement District

should approve/reject reviewed projects? Pearson

No Yes
Chi-
square p

9D: Taking responsibility
for consequences
92.3% 7.7% 9.572 ~

Total 63.4% 36.6%

~ =p<0.1

Considering the association between the perception of legitimacy as the measure
of agreement with the authority to approve developments and dichotomizing into
agreement/ disagreement the different goals the regulatory authority can prioritize, those
who disagreed with an efficiency calculus for regulation did not condone SID-led design
review to a degree larger than the general sample (Table 7.32).
Conclusions. The results from this and the previous section indicate that many of
the components of the rationale for SID-administered design review are not supported by
local residents today. What was both surprising and interesting is the similarity in the
inclinations of both localities’ residents in their attitudes towards the issues. In terms of
general legitimacy, SID-administered design review in itself is seen as being problematic.
From the discussion on substantive goals, the focus on character issues is also not totally
warranted. In terms of input, the absence of citizen participation is also problematic given
the expressed interests of residents.

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Table 7.32 : Agree/ disagree Role of Regulatory Agency and SID Authority to
Approve Projects

Maplewood

9C: Efficiency in making decisions
Q11-E3: Special Improvement District

with reasonable time and costs
should approve/reject reviewed
projects? Pearson

No Yes
Chi-
square p
Disagree 100.0% 0.0% 3.13 ~
Agree 60.9% 39.1%
Total 62.4% 37.6%
~ =p<0.1

The results also lend credence to the hypothesis that design review might be
supported by particular groups with specific cultural agendas. In Bayonne, it is interesting
that those who identify as Caucasians where more inclined to support SID involvement in
design review, though, and minorities more significantly opposed to it. In Maplewood, it
is particularly noteworthy that support is highest amongst the highest earners irrespective
of ethnicity. These findings partially confirm the design review can be of strategic use in
tempering the effects of demographic change.

7.2 Regulative and Normative Legitimacy of SID-administered Design Review
7.2.1 Regulative Legitimacy of SID-administered Design Review
The findings in the previous section raise important questions as to the
concurrence in the views of local residents and the SIDs, especially on legislative and
substantives considerations and the general expectations of the role of a regulator. Some
points of contention can be attributed to both processes falling short of satisfying some
important legal tests. Most legal commentators agree that in the era of public-private
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partnerships, a delegation of authority that can be reasonably attributed to government
should be subject to constitutional constraints that afford due process protections against
the arbitrary, capricious, and discriminatory use of government power (Kennedy 2001;
Metzger 2003; Koller 2007). Design review falls under the purview of government
police power that fits this criterion.
Legislative dimension. As elaborated earlier, the political compromises in
Bayonne resulted in an SID where the representation of residents on the board is limited
and where design guidelines, or their amendments, can be adopted upon promulgation by
the SID, barring any action by the city to the contrary. In Maplewood to the contrary, the
city’s representation on the board is more substantial, and the guidelines or their
amendments can only be put into effect after adoption by township ordinance. It does
seem thus on first analysis that the legislative process in Maplewood is more accountable
than the one in Bayonne.
The legal doctrines expounded in chapter two, ‘state action’, ‘private delegation’,
and ‘one person one vote’ all have a direct implication on the issue of accountability in
the legislative dimension of the design review process. If we apply state action analysis to
SIDs that have design review authority, then there is a clear case to the finding of state
action, even if SIDs were considered to be private entities. One of the tests developed by
the courts that Kennedy and Metzger refer to and which I illustrate in Chapter Two,
namely that the private actor has been delegated a function that has been traditionally the
exclusive prerogative of the state, clearly applies in this case.
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Design Review, as a restriction on the use of privately owned real estate, is a form
of police powers vested in government for the protection and promotion of the welfare of
a community. What follows is a determination that constitutional accountability should
be extended to SIDs engaged in design review. As mentioned earlier, the enabling
legislation states that although communities are responsible for the promulgation of the
guidelines, they can delegate this responsibility to SIDs if the latter are found reasonably
qualified to take on the responsibilities. On face value, this stipulation seems to sanction
the untenable position of the abrogation of accountability on grounds of instrumental
values such expertise.
The process in Maplewood thus can be considered to be a case of ‘strong
accountability’ given the larger representation of the township and hence residents at
large on the board, and the requirement the guidelines be promulgated by township
ordinance. The process in Bayonne also can be described as a case of ‘weak
accountability’ given a process that features a form ‘veto’ power where guidelines
become effective upon publication by the SID until the locality decides to take other
action.
Any conclusions predicated solely on ‘state action’ analysis might however be
superfluous given issues raised with the application of the ‘non delegation’ doctrine
which prohibits the delegation of legislative functions vested by the law in representative
government. This is particularly true in the case of SIDs in New Jersey especially since
legislative functions are specifically what SIDs were delegated in being granted the
authority to set design guidelines. In Bayonne, the application of ‘non delegation’ raises
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important questions given the locality’s deference to the SID on matters of guidelines
promulgation. For Maplewood, design guidelines have to approved by the city, so this
issue is ostensibly resolved. Important question can arise however when one considers in
some detail what constitutes delegation, and whether extreme cases of a representative
government ‘rubber stamping’ legislation drafted by another body makes for adequate
accountability.
The issue of design guidelines though raises even other complications that are not
easily reconcilable within the current framework of analysis. One important issue is that
in dealing with design guidelines, it is difficult in practice to differentiate between
interpretation and mere application of guidelines. As we saw in the case of Maplewood
for example, political imperatives necessitated drafting general guidelines that are subject
to interpretation by the administering agency. Whether municipal approvals of general
guidelines that are interpreted in specific cases by the delegate satisfy the test of non-
delegation remains to be determined to a reasonable degree of satisfaction.
Historically, and by virtue of their status as special districts, SIDs had been
exempt for ‘one person one vote’. This designation was affirmed in an important case
involving the Grand Central Partnership (GCP) SID in New York City. In that case the
court found that due to the district's ‘limited purpose’, ‘lack of sovereign power’, ‘limited
role and responsibility’, ‘ the city's control’, and ‘the disproportionate effect’ on property
owners, the GCP was exempt from one person, one vote and hence could legitimately
organize its affairs as a special district
1
.

1
Kessler v. Grand Cent. Dist. Mgmt. Ass'n, 960 F. Supp. 760, 766 S.D.N.Y. (1997).

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My argument with respect to this issue is that once SIDs assume design review
authority, then the applicability of special district designation should be seriously
reconsidered. I will expand on my views in the section on normative accountability, but
suffice it to say that if New Jersey SIDs that assume design review are found to not
qualify as special districts, then there is serious doubt about whether the legislative
processes which offer limited accountability to district residents in the form of
representation on the board of directors will pass the test of regulative legitimacy as they
stand.
Substantive dimension. As mentioned earlier, in Bayonne political compromises
resulted in the institution of semi-specific guidelines, while in Maplewood theme-based
guidelines were drafted. ‘Brennan’s rule’, the ‘vagueness’ doctrine and the issue of First
Amendment rights apply to a regulative substantive analysis.
On the application of Brennan’s rule, the processes in both Bayonne and
Maplewood can be put in question. Both in Bayonne and Maplewood design regulations
pertain to the downtown district solely, while other parts of the city are not subject to
regulation. Even if an argument is made that it is not as critical to include outlying areas,
Bayonne’s system of design review would still be suspect because not even all sections of
the downtown area are subject to design regulations, and not even the entire stretch of
Broadway that features commercial establishments. Maplewood might get some
recognition for the fact that it is in the process of setting up a historic preservation
commission and drafting historic preservation guidelines, and that the other main
commercial stretch, Springfield Ave., also features an SID of its own.
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On the issue of the First Amendment rights to freedom of expression, both sets of
guidelines generally meet the test. In Bayonne, most of the stipulations are general
enough in nature that they allow multiple design permutations. Some of the more specific
stipulations of historic elements might however be cause for concern if they are invoked
selectively, for which I have found no evidence. Of course the theme based guidelines in
Maplewood offer a larger margin of artistic and cultural expression. Here again though,
the margin of discretion might be of concern if it is used to prohibit ‘specific’ forms of
expression.
Procedural dimension. Also mentioned earlier, compromises resulted in a review
process in Bayonne where the consultants’ approvals is the most important determining
factor, while in Maplewood a more structured process was instituted where the district
board votes to finalize the recommendations of the districts design committee. Both the
‘vagueness’ and ‘non delegation’ doctrines can be fruitfully applied to the analysis of
procedural issues.
Bayonne’s character-based guidelines, which stipulate some concrete
recommendations such as rules for proportions and the incorporation of architectural
elements, stand a reasonable chance of satisfying the ‘vagueness’ test. It would be
conceivable that the courts would see in Bayonne’s textual guidelines a sincere attempt at
a systematic approach to guidelines that invites little arbitrary judgment. Bayonne’s
graphic guides, illustrating appropriate and inappropriate design, however do not clearly
impart whether the BTC intends them to be merely illustrative or binding examples.
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Maplewood’s guidelines, which describe abstract goals and ideas such as
compatibility, open the door for unbridled discretion and adverse determination under the
‘vagueness’ test. But in the sections on signage Maplewood’s guidelines are more
specific than Bayonne’s. However although Maplewood’s guidelines are more clearly
subdivided (massing, proportions, setbacks), the prescriptions under each theme are not
adequately specified. In sum each SID has been more specific with respect to the type
work it deals with most regularly. In both cases, either because of vague guidelines in
Maplewood or an unstructured process in Bayonne, the dangers of unfettered discretion
cannot be discounted.
An application of ‘non delegation’ analysis leads to conclusions that surrogate
constitutional protections need be instituted in the case of private delegations. In
Bayonne, since the review process is also contingent on the consultants’ satisfaction and
does not require the district board’s approval, it is unclear whether the adjudication by the
BTC of semi-specific guidelines satisfies due process considerations.
Maplewood delegates design review to a design committee which recommends
certain courses of action to the MVA board which has final say. In Maplewood, the
process is structured in terms of who votes on applications approvals and there is a time
limit on deliberation by the MVA from the time of submission of an application. Given
this fact and the institution of an appeals process, the MVA’s process is more conformant
to the requirements of a regulative procedural analysis.
In sum, although Maplewood fairs better in terms of heading legislative and
substantive constraints, both communities’ processes fair comparatively in terms of
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process. It should come as no surprise that legitimacy constraints figure more forcefully
in the MVA’s process since it is a government initiated SID.

7.2.2 Normative Legitimacy
The analysis in the preceding section raises important questions about the
legislative and procedural dimensions of the process in Bayonne, and the substantive
dimension of the process in Maplewood. These legal concerns are roughly concomitant
with the criteria of accountability in the legislative dimension, equal protection in the
substantive dimension, and due process in the procedural dimension.
Legislative dimension. In the conceptual analysis from chapter two, I argued that
accountability is one of the most important normative criteria in the assessment of a
design review agency. SIDs, initially conceived as business development organizations,
have token or limited representation of district residents on their boards. For the
traditional BIDs examined by Hochleutner (2003), the justification for this on the
grounds of unequal interest may be true. The idea of self-determination in a narrow sense
that SID-administered design review aligns costs and benefits for business interests
makes sense only if we assume that district residents do not have a vested interest in
place-making and are not affected by design regulations on commercial property. This
determination is however untenable in reality as I shall argue.
Also if accountability to district residents should be seriously considered, the
other important point is the consideration of accountability to neighborhood residents.
Here one has to keep in mind that the physical area in a locality subject to private design
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review does not necessarily correspond to what area residents would in any case have
determined to be a veritable neighborhood. Quite convincingly the area under SID
jurisdiction, which often encompass only parts of downtown areas, do not constitute in
many cases veritable neighborhoods. In the case of Maplewood, the SID’s boundaries
somewhat represent the downtown area. In Bayonne, the situation is more complicated as
the SID only covers a section of Broadway rather arbitrarily if we consider the
commercial corridor as being an integral unit.
Setting aside the question accountability to district and neighborhood residents, an
argument can also be made for accountability to a community’s (city) residents at large.
It is not hard to see how the activities of SIDs in the downtown area affects the city at
large. I have earlier introduced the position exemplified by Baab and De Selm (1990) and
Nelson (1996) who suggested that the most important rationale of private (in this case
homeowner initiated) design review is local self-determination. Nelson (1996) even goes
further to argue that municipal control over neighborhood land use amounts allows
powerful interests in city hall unduly extend their influence.
It is my position that the extension of the logic of local self-determination
advanced by Baab and De Selm and Nelson to the case of SID-administered design
review is not as straightforward as the New Jersey legislature and local interests behind
SID involvement might like to argue. This claim requires some qualification. One way to
go about it is to take seriously the court’s rationale in exempting special districts from
‘one person, one vote’. We should recall Briffault’s (1999) contention that the while the
courts have determined that special districts are exempt from ‘one person, one vote’, the
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extent of services offered by SIDs such as public services makes the application of this
exemption problematic (see also Manshel 1995). My position is that with the assumption
of design review authority, this exemption is even more problematic.
To recall, the courts have determined that the exemption is in effect when a local
government serves a ‘special limited purpose’, and it ‘disproportionately’ affects those
who are recipients of its services. When SIDs engage in a broad range of activities
usually the purview of local government such as the maintenance of streets, sanitation,
health, or welfare services, then the qualification of ‘limited purpose’ would become
questionable. Adding design review to the repertoire takes us closer to a situation where
SIDs as a local government takes on ‘general purpose’ responsibilities and hence should
be subject to democratic accountability to a district’s residents. Some such as
Hochleutner would however argue that the ‘general purpose’ determination should not
overshadow the more important calculus of burdens and benefits, according to which
accountability to district business owners would remain a priority. This calculus is
however altered with the introduction of design review into the equation.
Here the court’s prong of ‘disproportionate effect’, or what Hochleutner refers to
as burdens should be considered more closely. The courts have ruled that when SIDs
provide services, such as street cleaning, over and above ‘baseline’ services provided by
local government, then the determination of disproportionate effect stands, as business
owners are more likely to be disproportionately impacted by whether they receive the
added service.
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Even though the claim of disproportionate effect is predicated on the idea that
SIDs regulate commercial property, It is not hard to see how SID activity can and does
affect the values of non-commercial property within district boundaries and even in the
community as a whole. Even though the burden of assessment primarily falls unto
business property owners, the effects of SID actions on the valuations of residential
properties are considerable, and further amplified when the SID engages in development
control through design review. Although the effects of regulation would always be
disproportionate in absolute terms, in relative terms the effect gap would be much
reduced in the case of design review. My argument centers around the notion that the
value of residential property within the district and beyond is directly affected by the
character of the business district, which in turn is significantly determined through the
process of design review. We can better understand this point by introducing the
institutional analysis of neighborhood governance as first developed by Webster (2003).
Webster’s contribution to the urban governance literature is in introducing the
Coasian transactions costs perspective to bear onto the understanding of how and why
neighborhood organizations, both formal and informal, emerge at multiple scales.
Webster argues that when property rights left in the public domain gain in value, or when
the technology to appropriate them becomes cost effective, then property rights over
these resources will be assigned. Webster’s normative assessment is that an efficient form
of property rights organization would be one that makes all owners ‘residual claimants’
over each others’ property. This would create the incentives that everyone acts in a
manner that safeguards the value of their joint resources.
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Webster assigns the resources and externalities of ‘noise, air, water and visual
pollution, unfriendly or threatening behavior (social pollution) and ‘image’ pollution’
(Webster 2003, 2604) to a ‘micro’ level where they are most suitably negotiated by
adjoining property owners. Webster determines that visual amenity (views, space) and
prestige (a function of the socioeconomic status of residents and subsequently the quality
of their residences) are most suitably negotiated between property owners at the street
level. Resources such as access to local services are most suitably determined at the
neighborhood level. In all of these cases, the welfare of one property owner might be
dependent on the actions of others. Some of Webster’s suggestions for creating property
arrangements that account for residual claims at the street level include condominium and
co-operative forms of ownership. On the street level attributes, Webster (2003, 2605)
comments:
It is typically at street level that neighborhood identity is formed, that distinct
housing market and commercial areas develop, and that the distinctive collective
consumption and production behavior that determines a neighborhood’s social,
commercial and environmental quality develops.

Three decades ago Costonis (1982; 1989) has however proposed the idea of
‘symbolic externalities’ in the visual commons. What Costonis was alluding to is that
externalities can be symbolic in nature. Webster acknowledges this by proposing the
attributes of prestige and visual amenity as important considerations in the determination
of residual claims. So while it may be true that neighborhood identity is formed street by
street, it does not necessarily follow that ‘symbolic externalities’ from street level
decisions remain confined within the street, as per Webster’s analysis. It is in this sense
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that the determination of disproportionate effect that exempts special districts from ‘one
person one vote’ is further problematized.
This is especially true if the street is not just any street, but Main Street. Decisions
by SIDs that alter the character of commercial property on Main Street have the effect of
altering the symbolic character of the community as whole both on the neighborhood
level and beyond. This is simply because people project the character and image of the
downtown area onto the city as a whole. If an SID decides to give a traditional downtown
area a modern theme, then the valuations of residential properties anywhere in the
community are very likely to be affected. Similarly if an SID moves a quaint main street
in the direction of an entertainment district, then the perception of the character of the
community as a whole would be altered.
In this sense, I agree in principal with the premise of Webster’s argument
concerning residual claims and his assertion about the interdependence between the
actions of one property owner and another. Webster’s solutions for street level
interdependence, however, do not account for the fact that this interdependence is more
complex that his framework admits. Webster’s framework does not account for residual
claims that property owners beyond Main Street have on property on the Street. Symbolic
externalities such those emanating from considerations of place character are have the
interesting quality of not remaining confined to the spatial unit to which Webster ascribes
visual amities in his framework.

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Now it is important to mention here that one of the functions of zoning is to
simulate the benefits of an institution that accounts for residual claims by creating the
incentives for property owners in the downtown area to act in the general community’s
best interest in managing shared resources such as character. To simply say that zoning is
a form of undue interference on the part of city residents in affairs that legitimately solely
concern a neighborhood’s residents as Nelson claims may be more applicable to suburban
neighborhoods than to the downtown area and as per Webster’s terminology is an
analysis that does not address the issue of residual claims outlined above.
In his analysis of SIDs, Briffault comes to the conclusion that notwithstanding
these issues, plausible solutions exist to make the exemption from ‘one person one vote’
defendable. Remember from an earlier discussion, Briffault opined that SIDs, even while
they retain characteristics of private government, are for all practical reasons more public
than they are private since they are created and can effectively be terminated by public
decree. In this sense, more effective municipal oversight of SIDs, including sunset
clauses, active monitoring of programs, etc. should suffice. Many issues arise even if we
consider Briffault’s solutions to the problem of accountability, however.
On the state level in New Jersey, the DCA simply lacks the resources for effective
monitoring of local SID ordinances and whether they are likely to invite legal challenges.
From the examples of process in Both Bayonne and Maplewood, we see that local
resident representation on the SIDs’ governing board is nominal. Furthermore, in
Bayonne guidelines go into effect once promulgated by the SID, barring any city action
to the contrary. In Maplewood, although the guidelines are put into law by ordinance, the
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SID in fact was responsible for the development of guidelines which were later approved
by the city.
It is important to note here that the special nature of aesthetics regulation raises
questions about this limited accountability. As illustrated, many conditions may make the
drafting of precise guidelines untenable leading to the institution of a discretionary
review process. This special nature of aesthetics regulation makes ‘ex poste’
accountability by oversight as important as ‘ex ante’ accountability through municipal
approval of the guidelines.
Although municipalities do exercise oversight as required by state law, oversight
mechanisms are in most cases inadequate. It is important here to reiterate a main theme of
this study, namely that imperatives that created the incentives for SID formation in the
first place create disincentives for close and obtrusive monitoring. What is certain then is
that not one form of accountability is adequate on its own, and that a multi-pronged
approach needs to be investigated. All in all, the issues of accountability to district,
neighborhood, and community residents raised in this review remain to be settled.
Substantive dimension. As illustrated in the snapshot on the politics of
urbanization in New Jersey, some important normative issues in the substantive
dimension pertain to equal representation and the evolutionary potential of the guidelines
to meet changing patterns of diversity. It is my argument that in addition to representation
and evolution, another important criterion in judging guidelines is ‘accommodation’,
meaning the degree to which the substantive agenda of the review agency is inclusive of
the expressive rights of minority interests.
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Here it is important to note that the institution of design review is by definition an
exclusionary enterprise. But not all forms of exclusion are normatively justified,
however. Following Williams (1977), there can be argument to ban distasteful, offensive
symbolism on the grounds of the injuries it causes to the properties of unsuspecting third
parties. This is partially the justification for guidelines that detail ‘what can’t be built’.
Some have however found that if discrimination is cultural in nature and not by race,
class, and ethnicity, then it is no cause for alarm. Briffault’s arguments below underscore
this point about the normative invalidity of subtle forms of discrimination. On the
exclusionary aspects of SIDs, Briffault (1999, 474-5) notes:
Their promotion of property values may result in a form of commercial
gentrification. … Similarly, a BID's pursuit of order and security may involve
efforts to drive out street people, peddlers, some forms of entertainment, even
garish signs. Where one group or class finds a festive bazaar atmosphere, another
group or class may see social and visual anarchy.

Scholars in the tradition of environmental psychology have contributed to our
understanding of a normative theory of place identity by elaborating on such concepts as
historical continuity, transcendence, and uniqueness to which people react in their
assessment of place (Canter 1977; Llali 1992; Bohl 2004). In the American experience,
home rule and the proliferation of municipalities along class, ethnic, and racial lines has
the strengthened the perception of place character as an important pillar of the
preservation of community identity. The prerogatives for localities to pursue any of these
goals vary by their endowment and aspirations and respond to paradigm shifts in the
appreciation of the built environment. These may include a desire to perpetuate an
enduring local character.
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A central tenet of this study is that safeguarding the opportunity to engage in
public life is not merely a matter of physical access, but the maintenance of the
democratic control over the determination of place character. Almost as if foreshadowing
the issue at hand, Briffault (ibid, 475) also notes:
The possibility that BIDs will reshape public spaces to exclude parts of the public
is real, but it is likely to be mitigated by their lack of formal regulatory authority
and by local government oversight. … Similarly, BIDs lack the power to zone, to
prohibit land uses or to criminalize behavior.

Setting design guidelines and design review may not be zoning, but it is surely
‘formal regulatory authority’, and not merely street maintenance. Given these strategic
imperatives, we should always be considerate of local communities’ aspirations for voice
and representation. Far from being merely private property, highly visible and central
locations such as downtowns are charged with symbolic significance and are formative of
community character (Relph 1976). Boyer (1994) has aptly coined the phrase ‘the politics
of representational form’ to capture these conflicts around issues of urban symbolism.
Discipline specific scholarship by architectural historians, geographers, and urban
historians have contributed to our understanding of the issues involved including
struggles over cultural values and their inscription in the built environment. Hayden’s
(1995) narration of the struggles of minority groups to reclaim public narrative through
urban art is a documentation of struggles against the perpetuation of dominant narratives.
It is useful in this sense to conceive of place-making as an act of political
contestation and assertion. There is a public interest in the insurance of equal opportunity
of all societal groups in contributing to the narrative of place. The narrative of place is an
294

important marker of a locality, psychologically constructs status and access, and hence
attitudes of groups towards inclusion. Here it is important to note that democratic control
of place-making is not simply about the ‘reflection’ of current residents visions but the
capacity for the guidelines process to allow for the evolution of place character to meet
the needs of future residents.
Private design review underscores the all too real threat of dominant interests
capturing policy-making and imposing their place-making agenda by denying future
residents the capacity to engage in the process
2
. This is a story particularly relevant to the
advent of the improvement district. The story of the 42
nd
Street Improvement District in
New York, possibly the most notorious district in the country, is one such tale.
The commercial interests that controlled the 42
nd
street district, with the city’s
blessing, were mostly interested in transforming 42
nd
street into an arena of conspicuous
consumption. The 42
nd
ST BID deliberately glossed over the area’s ‘gay’ history in favor
of an earlier incarnation as a theatre district (Reichl 1999). Improvement Districts around
the country today, like the 42
nd
street district, reinvent pubic history by inscribing a
specific interest group’s version of community character through symbolism in the urban
landscape.
My concern with the issue of the public narrative raises two complications that
pertain to Nelson’s idea of private development control introduced in Chapter Two.

2
In a fascinating tale from Birmingham, Hall and Hubbard (1996) explore how the regeneration of the city
of Birmingham by creating `landmark’ locations `quarters’ was an intelligent use of allusionism and
contextualism to divert attention from a discussion of social issues. In a sense, the design discourse draws
a veil over social agendas, and glosses over city governments’ abdicating their managerial mandates in the
name of ‘entrepreneurialism’.

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Nelson, who has reflected on SID-led design regulation, argues that the practice would be
a positive development in any situation. SIDs, according to Nelson, are similar to
neighborhood associations and local ‘self determination’ is in all situations superior to
external control because they allow for a local interpretation of what constitutes an
externality or undesirable form of development. This unqualified support, however, does
not easily translate to the case of SIDs.
Again to recall the arguments from the previous section, SIDs are mainly
representative of land owners and proprietors and do not justly represent the residents
that reside within district boundaries. Secondly and even if they did, it is important to
keep in mind the many publics that the design review process must address. Due to the
impact of downtowns on the perception of the locality at large, design review also
impacts the residents of a locality as a whole, usually members of the community,
district, or village, whatever the terminology used. In this sense the polity’s abdication of
its authorship of the public narrative to quasi-private organizations representing special
interests should receive heightened scrutiny.
In Bayonne, the character-based guidelines, although laudable for their attempt to
arrive at a uniform set of standards derived from the qualities of the historical building
stock, can be interpreted in practice to favor historicist over contemporary interpretation.
In Maplewood, there seems to be a larger margin for expression in the theme-based
guidelines, although that margin in itself opens the door for unpredictability in
application. These observations underline the point that the interpretive nature of the
guidelines need inform the assessment of the normative validity of review.
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Procedural dimension. By way of an analysis of traditional processes of public
design review, critical accounts have highlighted issues of fairness, objectivity, stifling
innovation, and bloating the bureaucracy (Kumar 2005; Scheer, 1994; Wallis 1994).
Many of these concerns are compounded in the case of the privatization of regulatory
enforcement. In the consideration of the criterion of due process, Gromley (1996) alerted
us to the very real danger of the coercion of private citizens when private entities are
delegated the task of the enforcement of regulations.
In Bayonne, design review through the Kick Start program creates an uneven
playing field where the regulator by sanctioning one consultant’s interpretation of the
guidelines creates expectations and disincentives for applicants to pursue other
interpretations. In Maplewood, ‘informal’ negotiations between the design committee and
the applicant that precede a vote on the applications may not be consistent with a
regulator’s mandate a judge of merit and opens the door for regulator co-production in
the design process.

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Chapter 8. Conclusions
In this chapter, I revisit the analysis on the political imperatives that shaped the
design review process in Bayonne and Maplewood, and reiterate my argument that some
of the very imperatives which necessitated delegation impeded the institution of measures
that would have made for more comprehensive oversight of design review. Given that the
enabling legislation left open the possibility of designing very flexible processes, I also
reiterate the conclusion that interest behind the SIDs did not account for many of the
legitimacy considerations that pertain to respective cases.
Although I hope this framework of political imperatives and legitimacy
constraints can prove fruitful in probing design review processes in general, I recount the
basic findings for the specific case of SID-administered design review. I argue that
proactive involvement in legislation, place character determination, and design review is
a definite advantage of this margin of discretion afforded by the devolution of design
review. The record indicates that smaller cities and townships were more interested in
this authority than the urban communities for whom the legislation was mainly designed.
This concluding chapter has two main objectives. The first objective is to describe
the story of design review in the context of a particular context in New Jersey. In my
interviews, observations, and analyses, I developed a perception that this interest can only
be justly assessed from within the context of the history of urbanization, social, and race
relations in the state. Both middle class Bayonne and well to do Maplewood showed
interest in SID-administered design review with different visions for place character, but

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ultimately with strong indication of political motives that are a reaction to general
conditions of malaise in the urban region.
The reader will probably conclude that this narrative may have been useful as a
contextual underpinning of the study. My main interest in this study was however to
illustrate some issues that may arise with devolved design review in a general analysis
irrespective of the particular prerogatives that created incentives for this liberal use of
discretionary authority. This is why I delayed this discussion to the concluding section.
The second objective is to underscore that this study thus is not meant as a
judgment of two SIDs whose success in turning around an ailing and a threatened district
may or may not ultimately prove successful, but is meant as a cautionary tale that the
„price‟ for this success in terms of compromised accountability, representation, and due
process may not be acceptable and does suggest that the state and the courts need to
impose stricter measures to control the discretion communities and SIDs have in
structuring design review processes.
In conclusion, I briefly touch upon a policy perspective to address these issues. I
retort as to whether the instrumental imperatives for regulation and delegation such as
expertise and efficiency could be satisfied by some other approach that would borrow
from SIDs some of their more successful attributes but are not in essence representative
of the interests of business owners and the political gatekeepers.

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8.1 The Suburbs and Cities of the Garden State
8.1.1 The Politics of Polarization
The interest of New Jersey cities and towns in devolving design review to SIDs
should be assessed bearing in mind the state‟s interesting and telling historical dynamic
of urbanization. New Jersey had been described as a state where historical ethnic and
social acrimony and a pervasive co-option of state and local government by powerful
special interest groups have earned it the dubious moniker of the state governed by 567
municipalities, as some politically astute observers have quipped.
Historians describe a state lacking in unifying social bonds that developed as a
melting pot of various ethnic and religious groups, each jockeying for power and
privilege (Bebout and Grele 1964). These cultural tensions lead New Jersey cities and
towns down a path of polarization on ethnic and religious lines (Hirsch 1973). The
dynamics of the social and spatial polarization that ensued are myriad, but the themes of
identity politics, infrastructure investment, and class tensions stand out as polarizing
issues.
Identity politics. In the realm of the politics of identity, historically the old feuds
between Catholics and Protestants then Irish and Italians gave way to tensions between
African Americans and Latinos and now in many cities between Latinos and other
immigrants from East Asia such as the growing population of native Indians.
Commentators have noted that the various immigrant groups, perennially concerned with
freedom and advancement, have often used the political process as an instrument to
channel rewards to their respective townships (Salmore and Salmore 1998).

300

Religion-inspired politics at one point also was a formative factor in the spatial
polarization of the state. In the late 19
th
century, the prime suspect in municipal
proliferation was the local attitude towards the sale of alcohol. For example, when the
Local Option Act of 1888 that allowed counties to „go dry‟ on a county by county basis
was ultimately repealed, the uncertainty over state level prohibition alone resulted in the
creation of 100 new municipalities (Karcher 1998).
Infrastructure. Political fissure lines also formed around the issue of infrastructure
investment. In the nineteenth century, the emergence of centers of commercial gravity
meant that township budgets disproportionately impacted town residents, which created
tension between the commercial interests and rural and agricultural interests
1
(ibid). In
the commuter suburb era, the priorities of original residents clashed with those of the new
population of commuters
2
. The federal government also was implicated in accelerating
suburbanization by diverting New Deal investments to rural areas
3
. The construction of
turnpikes, supported by mining interests but of little value to farmers, and later of
highways supported by commuters but not local tradesmen, was also a principal cause of
the formation of dozens of towns in the early 20
th
century (Schwartz 1977b).

1
The formation of Madison Township for example, was a case where the periphery, marshy and sparsely
populated, was jettisoned because the commercial centers did not want to share infrastructure investment
funds with it. The Township of Monroe was created by the agriculture interests in South Amboy, when in
1838 the town seemed inclined to invest in the expansion of roads and infrastructure to take advantage of
the coming of the railways era (Karcher 1997).

2
When Dunellen ceded from the town of Piscataway, the priorities of the two communities had clearly
diverged, the first being sidewalks, street lighting and sanitation, the second being road, schools, and the
poor (Karcher 1998).

3
One largely overlooked aspect of the New Deal is that 66% of CWA money and 40% of WPA funds went
to county roads and transport projects (Schwartz and Prosser 1997).

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Class tensions. Socially, the class struggles between the commercial and rural
interests also gave way to those between the captains of industry and laboring classes,
then between locals and commuters (Salmore and Salmore 1998), culminating in similar
patterns of spatial polarization. New Jersey‟s first enclaves of wealth housed a wealthy
elite class of businessmen whose fortunes were tied to commerce in Philadelphia and
New York, such as Camden and Brooklyn Heights (Cammarota 2001). As the urban
centers of New Jersey experienced an industrial renaissance in their own right in the mid-
nineteenth century, the demand for labor was met with large scale immigration from
Ireland and Germany
4
(Prosser 1997).
After first attempting to disenfranchise Catholic immigrants with varying degrees
of success, protestant „natives‟ soon abandoned the cities for suburban townships
5
. In the
late nineteenth century, one important cause for proliferation of townships was the
decision by cities concerned with home rule to create „school-district‟ boroughs where
they were able to exercise control over taxation for and access to schooling
6
. Soon also
the railroads came to hold great sway over the affairs of the state and were active in the
politics of municipal proliferation.

4
In the second half of the 19
th
century, Paterson became home to cotton mills and locomotive works.
Newark was a production center for plantation staples. Camden and Trenton were foundry subcontractors
to Philadelphia iron mongers (Salmore and Salmore 1998).

5
As immigrants settled in what came to be known as ethnic neighborhoods, the city native born protestant
community first attempted to hold a firm grasp on institutions of social control through the establishment of
teachers colleges, paid fire and police services, and standards for civil service (Schwartz and Prosser
1997).

6
The legislature enacted the 1894 Township School Law with the intent of equalizing opportunity and
quality of education. The law stipulated that each township have one school district supervised by one
board of education. In a state where individualist values slighted the public welfare, the immediate effect
was the spinning off of 26 Bergen county townships under the provisions of the 1878 Act (Karcher 1998).

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This helped usher in the classic railroad suburb, home to a managerial and
professional „white collar‟ middle class (professionally employed in New York and
Philadelphia) which found the social exclusivity of the suburb a desirable separation from
the class of „blue collar‟ workers
7
(Karcher 1998). Later, the age of corporate laissez faire
was vividly illustrated in an era of the formation of exclusive enclaves in the late
nineteenth century
8
(Salmore and Salmore 1998).

8.1.2 The Instruments of Polarization
As powerful as these prerogatives were, the dynamic of proliferation could not
have lead to the spatial polarization of the state in the absence of an enabling
environment. This was made possible by a historically weak state government where
special interests controlled state affairs. In the post civil war era, the state was bankrolled
by the railroad companies, often in exchange for exclusive franchises. Later in the
century and in the twentieth century, lax antitrust laws resulted in the migration of New
York corporate interests who took over the role the railroads played in influencing state
affairs. In the post-Euclid era, the power of suburban interests continued to increase
rapidly as a geographically dispersed economic base shifted power away from the cities.

7
As Cammarota (2001, 86) describes it, "when the cities expanded with factories and homes for immigrant
workers, this distinctive growing middle class ... became more socially exclusive and family oriented”. In
the Hackensack Valley for example, boosters praised the „safe‟ environs the new cities being created, and
residents tolerated the dearth of amenities due to the „moral advantages‟ of suburban living.

8
Townships like Short Hills and Llewllyn Park developed as elite places of refuge.

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These bouts between the natives and the immigrants, the rural and urban interests,
and the affluent and the less fortunate were fought in different policy battlefields. With
the onset of industrialization, these tensions and rivalries took a distinctive form of a
struggle between suburbs and cities. Cities alternatively tried, without much success, to
grow by lobbying for favorable annexation laws. In the twentieth century in the wake of
the Supreme Court‟s decision in Euclid, and by the time the New Jersey constitution was
amended in 1927 to validate municipal zoning ordinances, the state already boasted 540
of the 567 municipalities in existence today (Karcher 1998).
This perplexing statistic begs the following question: what is the transformation
brought about by zoning that culminated in that sudden collapse of viral municipal
incorporation? In answering this question, Karcher makes the astute observation that
zoning replaced municipal proliferation in achieving many of the same objectives. The
protection of the cultural, social, and economic integrity of a community, at various
points in history were thus to be achieved successively both by secession and later by
exclusion enabled by zoning. These were the first two policy battlefields. Exclusionary
urban and land-use policies remained a powerful tool of social control until the Mt.
Laurel
9
cases in the mid-seventies started chipping away at their legitimacy (ibid, 10).
In each instance of spatial polarization, the protagonists couched their motives in
the language of the progressive ideals of the time. In the early twentieth century,
progressive reform in the suburbs, a topic of protracted research, was in the case of New
Jersey an attempt to defend home rule against demographic and institutional

9
Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151 (1975).

304

encroachments of the metropolis (Schwartz 1997b). When the GOP finally routed
democrats in the 1894, suburban Republicans forced a county-wide referendum that
called for a county-wide system of parkways which bypassed the working class
neighborhoods in connecting the factory to the suburb, for which they lobbied under the
monicker “regional and county wide planning”
10
(Salmore and Salmore 1998).
Through the institution of the „nonpartisan‟ commission form of government, the
progressive reform movement‟s most enduring legacy is the weakening of democratic
city government and enhancing republican county clout. The defense of exclusionary
zoning for much of the twentieth century was executed in the name of the defense of
community. The following recounts some policy tools from the eras of proliferation and
exclusion.
Proliferation: 1844-1929. One important feature of state politics for more than
two hundred years was the establishment of the county as the basic unit of political
representation. This practice continued to shape state politics from the days of the
Provincial Assembly, through the Constitution of 1844, the revisions of 1875, and the
Constitutional Convention of 1947, not to be scrapped by the state Supreme Court until
the 1960s, at the time when the municipal landscape the state manifests today had already
been formed.
Under these circumstances of county-wide representation, municipal
fragmentation simply did not disturb the balance of power, and municipal proliferation

10
Emergent alliances such as the Passaic Planning Association, Bergen County League of Municipalities,
and the Essex County Zoning Conference were suburban interest lobbies that fought to guard the auto
suburb against encroachment from the city (Schwartz and Prosser 1997).

305

did not lead to a challenge of the vested political powers which operated as county-wide
party political machines. In the context of liberal incorporation laws and a favorable
political climate, municipal proliferation in the state has had a long and rich history that
exemplifies the narrow-minded politics that pitted the different rural, urban and suburban
interests against each other (Karcher 1998).
After a period of viral incorporation on ethnic and religious lines, the constitution
of 1844 sought to remedy the situation and placed the right to allow incorporation solely
in the hands of the legislature through a special charter process. Though meant as an act
of reform, this act shifted the access to incorporation to those who had the political
connections in Trenton, ushering in a period where wealthy enclaves broke off to manage
their own affairs. As a result, the amendments of 1875 revoked the legislature‟s ability to
grant special charters to municipalities, and required that all incorporation law must be
„general in nature‟. Still, the then Republican push towards unchecked home rule
culminated in the Borough Act of 1878, a „general‟ but unreasonable piece of legislation
that ushered in an era of easy incorporation, whose details are worth revisiting for
illustration.
As per the act, any group of citizens owning at least 10% of value of taxable real
estate were able to call for a special election for the purpose of incorporating their tracts.
Also of interest in the requirement that the proposed entity not have more than five
thousand inhabitants or be larger than four square miles. Furthermore, the Borough
Commission Act of 1882 allowed the formation of semi-autonomous boroughs with
jurisdiction over streets and sidewalks, and powers of taxation within areas less than two

306

miles and having less than three thousand residents. The Act of 1890 eventually allowed
the incorporation of these boroughs (Karcher 1998). In this context, proliferation
continued unabated.
The relatively short lived era of incorporation by popular consent ended when the
laws of 1897 again placed incorporation squarely back in the hands of the state
legislature. This did not put an end to the creation of exclusive enclaves, though. That the
legislature was put in charge again simply meant that now connections and favors again
ruled the day. So egregious where the offenses that townships such as Rumson and
Florham park, which were basically estates, suddenly became their own cities (ibid).
Municipal incorporation ensued for another thirty or so years before the Great Depression
brought an end to the practice.
Exclusion: 1927- 1983. Sixty four new municipalities were created between 1920
and 1930. But balkanization, up to this point in time being the preferred route for
communal self-management (and escaping social responsibility through taxation), was
starting to lose its appeal. As middle class commuters with rising incomes sought the
New Jersey suburbs as places of residence, some villages found themselves having to
provide many previously „urban‟ services such as sewage, schools, and transportation,
which created a schism between commuters and the original inhabitants (Blumen 1997).
These suburbs were often unable to maintain departments needed for public
services, and conditions were even worse during the depression (Bebout and Grele 1964).
Land development companies recognized the unique opportunities and built subdivisions
on which they sold properties with restrictive covenants which came to be a veritable

307

instrument of social control. Land improvement companies sold lots with „restrictions‟,
such as requirements for specific values for homes (e.g. Bergenfield, see Birkner 1994).
Incorporation was advantageous because it allowed control over „undesirables‟
such as through vagrancy and tramp laws and laws which stipulated the types of
businesses allowed etc. With restrictive covenants, land development corporations went
even further and controlled style, value and conformity (Karcher 1998). Covenants built
into development plans called for conforming designs and the prohibition of home sales
to people of certain classes and religions.
But restrictive covenants only applied to new subdivisions. In this context, the
coincidence of the innovation of zoning and the onset of the Great Depression was
fortuitous. The important point to note is that municipal incorporation was such a
formidable tool of social control because towns could, and did, enact „vagrancy‟ or
„tramp‟ laws as per statutes adopted in 1877, 1878, 1800, 1882, and 1884 that literally
had the effect of evicting undesirables. The effect that the Depression had is that it
created a situation where for the first time in one hundred years, the sheer scale of
disenfranchisement meant that these laws became unenforceable. This is how zoning
came to be seen as a formidable substitute strategy.
Before becoming ubiquitous, zoning would first suffer a minor setback in New
Jersey. In 1923 that the state Supreme Court ruled that ordinances controlling
construction were illegal use of police powers. It was at the heels of this decision that the
Townships such as Franklin Lakes, Far Hills, Bernardsville, Harding Township,

308

Mountain Lakes, and others came into existence. Needless to say the opinion in Euclid
11

bestowed legitimacy on zoning nation-wide. In 1927, with the legalization of zoning,
many of those issues were resolved. Then Governor Harry Moore proclaimed the passage
of the zoning bill to be the most important achievement of his first term.
Zoning allowed communities to maintain control within their boundaries at a time
when incorporation has become less viable of an option due to, among other reasons,
rising costs of providing public services, enforcing vagrancy laws, and an increasingly
powerful state (Karcher 1998). The turnaround in judicial reasoning and the increasing
legitimacy of zoning in New Jersey was such that in 1947 the state court went so far as to
pronounce that the police powers of zoning where such an essential element of the social
compact, amending the constitution to legalize it was „superfluous‟ (ibid).
In New Jersey, zoning superseded proliferation since it made for a process where
social control could now essentially be effectuated through seemingly non-political
„rational‟ land management. The Faulkner Act of 1950, by creating a plethora of forms of
incorporation (e.g. city, township, borough) and types of governments that cities can
chose from (e.g. Council-manager, mayor-council), effectively insured that any city could
basically find the appropriate governance structure to effectuate any desired zoning
policy (Salmore and Salmore 1998).
The finer tools of community preservation: 1973-today. After the era of
proliferation, exclusionary zoning reigned in New Jersey for more than 40 years. One
reason is that even as late as 1950, state government in New Jersey was very weak by

11
Village of Euclid v. Ambler Realty Co. , 272 U.S. 365 (1926).

309

national standards. Even by that late date, the state did not even collect any income tax.
Although the state remained hostile to the notion that meeting the needs of the
unfortunate is good cause to restrain the tradition of home rule, surely enough, the time
would come when that would change.
Public sentiment started to change when employment growth, traditionally
heavily concentrated in cities, shifted to the suburbs
12
(Bebout and Grele 1964). But the
social upheavals of the 1960s and increased sensitivity to notions of systemic inequality
would ultimately lead to the end of unchecked home rule in the state. Later in that
decade, with accelerating suburbanization and the declining populations of cities, the
sentiment that unchecked home rule perpetuated this systemic inequality started to
undermine the legitimacy of existing governance structures.
One of the most memorable episodes in the state‟s eventual curtailing of home
rule was the creation of the state board of equalization for the equalization of school
district funding (Stonecash and McGuire 2003). In the multi-year struggle to create a
system of equal educational opportunity, it was not until the Robinson vs. Cahill case in
1973 that reasonable progress was made, and only in 1976 that a state income tax was
instituted to pay for school financing. It was only after the State Supreme Court ordered
the schools closed that the legislature broke the deadlock on financing when six days into
the closing, then Governor Byrne signed into law a tiered state income tax (ibid). The
affluent „bedroom suburb‟ communities of Bergen county however became recipients of

12
Some notable „migrations‟ of the time was Ford‟s move to Mahwah, U.S. Rubber to Wayne, and Colgate
to Piscataway (Bebout and Grele 1964).

310

state school aid because suburban interests managed to institute aid formulas predicated
on taxable real estate per student rather than median income. This highlights how in the
last 30 years issues of community preservation remained very important, although the
politics surrounding them have become more tactical.
Down- zoning would become the next contentious issue that would challenge the
tenets of unchecked home rule (Schmidt 1999). In the now infamous Mt. Laurel cases
argued from 1975 until the compromise of 1983, the ability of townships to engage in a
blatant form of social exclusion was severely curtailed. As is well known, the court
mandates in the original 1975 Mt Laurel case were not headed. By the time of Mt. Laurel
II
13
, the courts already frustrated with inaction in the legislature mandated their own
enforcement system. „Howls from the suburbs‟ could be heard as the judiciary
empowered themselves to remedy what they deemed unfair housing practices (Salmore
and Salmore 1998). Mt Laurel opponents saw the judiciary‟s activism simply as an attack
on the essence of community.
Then Gov. Kean pressed the legislature for a plan. But when democratic senator
Wynona Lipman proposed the idea of a Council on Affordable Housing (COAH) that
would determine municipal obligations of affordable housing, the Governor refused to
act. This was not until then State Senator John Lynch‟s proposal to allow townships to
„trade‟ half their obligations was incorporated, that is (Salmore and Salmore 1998). What
this effectively meant is that cash-hungry urban areas would be „paid‟ to keep certain
social groups within their borders.

13
South Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983).

311

These regional contribution agreements perpetuated an unfortunate pattern of
economic segregation that even the state public advocate warned had implicit racial
undertones (ibid). The bill was also even more significantly weakened as housing for
seniors was allowed to be considered affordable housing (Stonecash and McGuire 2003).
When the courts later transferred all pending cases to COAH, many suburban
communities had been able to redirect progressive planning to their advantage. Even if
we acknowledge these developments though, it is safe to say the era of „grand political
gestures‟ such as incorporation and exclusion has ended in the politics of community
preservation.
In the post Mt. Laurel era, the use of the language of environmental preservation
and planning has also been one tool of social control to defend community character in
the suburbs. Recently, programs such as open space preservation funded by tools such as
the open space tax (more than 218 municipalities and all counties have adopted some
form of the tax) have been gaining popularity. Notwithstanding the many legitimate goals
that these programs advance, the dubious exclusionary social consequences of
environmentalism has yet to be widely recognized (Schmidt 2008). On the state level,
New Jersey adopted a land-use plan to stem urban decline which strongly promoted
environmental preservation. In net effect, New Jersey‟s repudiation of its cities through
these programs has produced a very strong anti-urban imaginary (Lake 2006).
Even the effectiveness of some traditionally robust tools of local control of land
use is being reduced. The state Local Housing and Redevelopment Law (LHRL), long a
reliable tool for condemnation and revitalization of „blighted‟ areas, has recently been

312

seriously weakened. In a 2007 ruling, the New Jersey Supreme Court ruled in Gallenthin
v. Paulsboro
14
that for condemnation to be legal, blight cannot simply be a matter of
„underutilization‟. Already suburban townships are seeing court cases (e.g. Carolyn
Evans and Rivco Group vs. Township of Maplewood
15
) that challenge condemnation on
the grounds that is arbitrary and capricious.
The lesson from these illustrations is that even after blatant segregation and
exclusion perpetuated by unchecked home rule were delegitimized in the legal and
popular spheres, urban-suburban political tensions continued unabated, though they now
took even more subdued forms of engagement. In this era of „small gestures‟, competing
interests have to contend with building strategies around a wide array of policy tools. But
in the history of the state, it is quite clear, this appeal to the right of self determination
through „home rule‟ always carried a special significance. Former Governor Brendan
Byrne‟s astute observation that „home rule is religion in New Jersey‟ is still as relevant
today as ever (Salmore and Salmore 1998).

8.1.3 Newark and its Environs
In northern New Jersey, historically these dynamics were instantiated in the
decades long acrimonious rivalry between the city of Newark and its suburbs. In the
Newark of the late 19
th
century, rapid industrialization in a corporate laissez-faire culture
created the conditions for poverty and labor disenfranchisement and the proliferation of

14
191 N.J. 344 (2007).

15
L-6910-06 (2007).

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associated „undesirable‟ activities. For example, by 1888 Newark boasted more than
1000 saloons, which proliferated as “man‟s escape from the industrial city, shoddily built
and ill serviced” (Bebout and Grele 1964, 37).
In an attempt to confront the suburbs which placed natural limits on the growth of
the city, Newark Mayor Joseph Haynes in the 1880s initiated what came to be known as
the Greater Newark Movement which sought to expand the city and increase its political
clout in state government. The Newark Board of Commissioners of Streets and Water
was formed and was controlled by the Essex County democratic machine. Through the
consolidation of the private street railway companies, Newark also sought to expand
along the trolley transportation corridors.
Aptly put by Joel Schwartz, the trolley revolution “threatened to shorten the
distance between the social classes”, causing great concern for the residents of nearby
affluent suburbs such as the Oranges where there was palpable fear about the loss of
identity (Schwartz 1997a). To contain the trolley and the threat of the ensuing saloon and
tenement, Orange and other suburbs experimented with rudimentary building controls,
police and sanitary controls, and a rationalization of local government.
In the late 19
th
century, concern about the social and political „costs‟ of urban
expansion directed by immigrant-based political machines reached record levels of alarm.
After a period of relative truce, the prevailing political order predicated on a division of
patronage between corporate leaders and local immigrant political leaders started to
unravel (ibid). For example, when Montclair incorporated in 1888, one of the towns‟ first
resolutions was to create a „town improvement and health protection association‟ that

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regulated saloons. The township put in force a saloon ordinance, a noise ordinance, and
instituted a board of health to produce housing inventories, sanitary surveys, and public
utilities regulation.
East Orange joined Montclair in limiting saloon proliferation, and residents
vociferously objected to public transportation connections to Newark. One interesting tid-
bit from the era were that the service down Main Street was suspended when the
franchisee failed to keep conditions „first class‟. Also, then Essex County Republicans
eventually won state legislation that demanded consent of 50% of property owners along
proposed trolley routes. In Orange, by the time the Consolidated Traction Company was
denied a franchise on Central Avenue, suburbanites had started creating the groundwork
for the parkway system, seen as a viable alternative to the trolley given that as a restricted
carriage way it screened out objectionable institutions (Schwartz 1977b).
To Newark‟s credit though, it remained an open city, refusing to block the influx
of African Americans as other cities did. During WW2, ethnic minorities arriving in the
North to work in the munitions plants made lodging in Newark tenements (Karcher
1998). This openness though would eventually not only be perceived to be a threat to
suburban interests but also the political machines that controlled Newark. The rising
„black vote‟ was a challenge to the political structures that ruled the state. The Italian city
machine and the Irish county politicians in Essex County maintained an uneasy but
workable arrangement of patronage and support through the institution of the commission
form of government.

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At large commissioners were „ethnic‟ bosses, who subdivided city departments
between them like spoils. Under this system, African-Americans in the third ward could
not elect a commissioner, and hence were denied the spoils of a department. Even with
the charter reform of 1953 and the carving of a „central ward‟ for African Americans,
change was slow to come. By 1964, the African-American population of Newark reached
42%. This frustration over lack of representation was a critical factor that laid the
groundwork for the 60‟s turmoil (Curvin 1977). These social and economic upheavals
would take Newark and New Jersey‟s other cities‟ down a path from which they would
not recover.
The states‟ eight largest cities accounted for 34% of population in 1930. By 2000,
only 12% of New Jerseyans lived in cities. In the same period, the percentage of white
inhabitants of cities fell from 93% to an astounding 12%
16
. A tale of highway
construction enabling suburbanization, the loss of consumer traffic to enclosed malls, the
decline in property values, and the ensuing missteps of urban renewal is an all but
familiar narrative of decline whose instantiation in New Jersey is probably one of the
more severe episodes nationwide. As this historical narrative illustrates, urban-suburban
acrimony had historically been a formative factor of suburban politics and bears large
resemblance to the contemporary situation.

16
The complicity of elite political class in „inducing‟ the decline, through white flight and disinvestment
remains a credible theory for many observers (Gillette 2005).

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8.1.4 Bayonne and Maplewood Today
In the aftermath of the state‟s urban crises, the gradual penetration of traditionally
„white‟ cities and first ring suburbs by minority groups seemed irreversible. In Bayonne,
similar demographic transformations were taking place. In 1999, of the 61,000 residents
living in town, 55,000 or 90% identified as Caucasian (U.S. Census Bureau). In 2000, of
the 62,000 living in Bayonne, 42,000 or 69% identified as such (U.S. Census Bureau). As
the recession of the early 1990‟s took hold, Bayonne reeled. Congress must do more for
cities across America asserted then Mayor Rutkowksi as he grappled with crippled local
finances and dwindling state aid (The Bayonne Community News July 4 1990).
The recession had a severe impact on the affordability of housing in Bayonne
which led to widespread vagrancy and homelessness. As the police struggled to control a
rising wave of crime and thefts, the city obtained an HUD grant which it applied to public
housing, rent assistance and the mitigation of blight (The Bayonne Community News
August 6 1990). By the time employers such as the Maiden Form factory closed down
eliminating 340 jobs in town, it had become apparent that the city‟s industrial base had
eroded, and a new strategy for redevelopment was due (The Bayonne Community News
August 29 1990).
The effects of the decline on Broadway were apparent, as the shopping strip
started to show signs of decay. In response, Thomas Cuseglio, the zoning officer, decided
to enforce sidewalk obstruction laws as discount merchants proliferated and started to
spill their merchandise on the streets to attract shoppers. Before the advent of the SID,

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this was the city‟s main ongoing attempt to keep shopping clean, safe, and aesthetically
pleasing
17
(ibid).
In Maplewood and in the years leading up to the MVA‟s founding, racial tensions
were at their peak. There was no doubt that the demographics were changing. In 1990, of
the 21,000 who called Maplewood Home, 18,000 or 85% indentified as Caucasian (U.S.
Census Bureau). By 2000, of the 24,000 residents of the township, only 13,000 or 55%
identified as such (U.S. Census Bureau).
Police reports of arrests of „out-of-town‟ African Americans on burglary or
vandalism charges were all but common in the late nineties (Maplewood News-Record
September 9 1999; Maplewood News-Record January 11 1999; Maplewood News-
Record July 1 1999), whether it was juveniles from Mt Vernon terrorizing people in
Memorial Park (Maplewood News-Record August 4 1998) or Irvington men committing
robbery (Maplewood News-Record August 27 1998), the all too real threat of lawlessness
continued to fuel racist dispositions.
The city responded to the up-tick in crime with the iron fist of law enforcement.
Three Essex County municipal police departments collaborated to set up a „Quality of
Life Task Force‟, patrolling neighborhoods bordering Newark to curb loitering, drugs,
prostitution, alcohol, pornography, graffiti and noise (Pulgisi 1998; McCormack 1998).
This demographic transformation did not pass without local backlash. Racial
vandalism of the homes of black residents, even incidents of burning crosses left on

17
The decade that followed saw serious work towards a new service oriented Bayonne within reach of New
York City. Here 2002 was a momentous year. When the military terminal closed down, prime real estate
was made available for the revitalization of the waterfront. It was about then that light rail connection to
New York reached Bayonne for the first time.

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African Americans‟ front doors were reported (Schuster 1985; Tunney 1986). In
response, the city created a „racial balance task force‟ which introduced minority
prospective home buyers to the city in an attempt to promote ethnic tolerance and
gradually and even more progressive efforts, such as financial incentives to help
minorities graduate into home ownership (Prial 1988; Ragozzino 1996e; Hrywna 1997).
These trepidations also animated the debate over property, housing and racial
heterogeneity. In 1996, a proposed 48 unit development was stalled as officials bickered
about the „downward pressure‟ on prices it would put into effect, or the potential „health
effects‟ of building next to an industrial area, or the pressure on „school capacity‟ or
„parking capacity‟, all euphemisms for a wariness of the intrusion of „undesirables‟
(Maplewood News-Record July 25 1996).
When condominiums were proposed for Laurel Avenue, objections were raised
that the project conflicts with „the character of the community‟ (Maplewood News-
Record March 8 1996). When Union Tool and Mold wished to partner with a
condominium developer to develop its lot, the township, ostensibly worried about the
health effects to the condominium residents, insisted on a purely industrial use
(Ragozzino 1996b). In 1999, when the Pierson Mill was to be demolished and be
replaced by a two hundred unit garden apartment development, reaction were less than
favorable to say the least, with concerns about the „quality of development‟ making the
headlines (Maplewood News-Record October 14 1999).
Nevertheless, local African American leaders extolled their co-ethnics to become
involved in town politics, and not allow wealth and suburban life to generate

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complacency (Maplewood News-Record August 4 1998). When a community
development consultant concluded that the city conformed to the requirements of the
COAH fair share plan, the local coalition on race objected. Of the 166 units in the city‟s
obligation, 144 were satisfied by subsidizing senior housing, 25 in group homes, and only
43 units were to receive funds for rehabilitation, which is usually the minority share.
The Local Coalition on Race reported that since housing prices increased by
200% during the period, these measures were not sufficient (Maplewood News-Record
October 14 1999). The city was however content to seek compliance by building senior
housing and funding repairs to existing low income homes which it viewed as more
beneficial for the local economy than new low income housing (Landsberger 1998;
Zingaro 1998). The trepidations against racially heterogeneous cities were so great that
even residents of the Essex County Psychiatric Ward objected a proposed moving of the
facility to Newark (Pulgisi 1998).
Mr. Victor De Luca, former Mayor of Maplewood and former Chairman of the
SAP Board was a former community organizer in the Newark Ironbound before he
moved to the Maplewood Hilton district. When he first moved, it was mainly inhabited
by a white working class population. At the time, a fear of „white flight‟ was palpable as
African Americans started taking residence and moving in from nearby Irvington, he
mentioned to me in an interview. In an effort to stem the tide, Mr. De Luca saw a role for
the SAP as a local institution, similar to a church, that would keep residents rooted in
place.

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Needless to say, the state government in Trenton tried, but to no avail, to ease the
tensions from racial and demographic change by promoting cooperation between
municipalities. For example in late 1999, Governor Christine Whitman announced a
Regional Development Efficiency Initiative with incentives for townships to share
municipal services. Ironically, the effect of this initiative was to further strengthen ties
between wealthy cities, and more concretely resulted in the creation of the Maplewood-
South Orange School District (Maplewood News-Record November 10 1999), rather than
in a Maplewood-Irvington economic development department, as some might have
hoped.
In the first section of this chapter, I narrated the perception by many of my
interviewees that the interest of smaller communities in SIDs and design review stemmed
from the fact that they were resident-initiated and that by their very nature had a
heightened interest in issues of aesthetics. This lengthy overview of the history of
urbanization of the state was meant to contextualize and qualify this perception. The
historical account validates the notion that urban-suburban acrimony is an important
factor formative of local politics. The popularity of SID-administered design review
given the benefits of proactive involvement should be thus assessed with this politics in
mind.

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8.2 Conclusion
8.2.1 Design Review, Politics and Legitimacy
At the time of the creation of the BTC, the imposition of controls and tax
assessments especially during an economic recession seemed counterintuitive

(Kalcanides 1991a, 1991b). A powerful merchants‟ association was however adamant not
to squander such an opportunity. When the Bayonne Merchants Board of Trade voted to
create the SID, it had to promise that most of the levies would go towards tangible
improvements. When these started to materialize, support increased (London 1991). In
the end, business interests prevailed and won over city support. The fact that the district
was formed between 18
th
and 30
th
street on Broadway belies the fact that despite its
appeal, the SID had not won over everyone.
In Maplewood, the commitment of business owners to the MVA was less
unanimous that in the case of Bayonne. The usefulness of the SIDs was at first suspect as
many, if not most merchants were skeptical of the bureaucratic burden it would impose.
The protests of many business owners who railed against the increased tax burden the
general meddling, was widely felt. Others suggested investigating other avenues, such as
the Main Street Program, where the burden of funding falls on the state (Maplewood
News-Record November 14 1996). In the end though, the city prevailed.
What I have aimed to illustrate in this study is that political imperatives and the
compromises that they necessitate create the conditions for discretion. This is possibly in
contrast to the preconceptions the legislature had when it gave localities free reign in
structuring review processes as they see fit. For example from my observations from

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Bayonne, it seems that the political compromises lead to a somewhat specific substantive
policy that satisfied the city, which was compensated for by lax procedural controls to
satisfy the merchants‟ association. In Maplewood, the need for flexibility in substantive
policy was thought to have been compensated for by more stringent procedural controls.
This margin for discretion raises important questions about accountability, equal
representation, and due process. For example, in Bayonne the record raises questions
about the BTC‟s fidelity to original intent in the interpretation of policy documents
through the assistance program which went unmonitored in the absence of a structured
process. In Maplewood, the process which featured vetoes and appeals could not control
the informal bargaining between the MVA and the applicants that prior to a hearing on an
application.
From a pragmatic point of view, residents of both localities thought little of the
innovation of delegated design review. From the survey it is clear that in general,
Bayonnites‟ approval of the delegation of design review to the BTC is much lower than
to a planning board or design review committee. In Bayonne, only those who identified
as Caucasians showed somewhat higher, albeit still low, interest in SID involvement in
design review, with implications for accountability. Although they indicated a preference
for a traditional, casual place, character issues were not highest on their list of priorities,
and they showed more concern for the issue of the design of the public realm. They
mostly agreed with the need for public input into design review, and made little of a
proactive mandate for the review agency.

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The refusal of Maplewood residents to legitimize SID-administered design review
reinforces the idea that design review, in the popular perception, is in essence a function
of government. In Maplewood, only those highest on the income scale, irrespective of
ethnicity, were more inclined to support an experiment with SID-administered design
review. As mentioned earlier, the majority of Maplewood‟s residents are no different
than other small town residents who place a premium on walkable, compact downtowns.
Although residents of Maplewood overwhelmingly perceived their town as a
traditional, quaint place as consistent with expectations, the fact that character issues also
did not top the list is noteworthy. So although character was not the overriding concern in
general, for those for whom it was there was a perception that SID involvement is
legitimate, while for those whom it wasn‟t and public interaction was, there was again an
even larger perception that SID involvement was problematic. Residents mostly agreed
with the need for public input and made little of a proactive mandate for the review
agency as well.
In my analysis of the regulative legitimacy constraints in the context of delegation
and as pertaining to design review, I raised some issues concerning doctrines such as
state action, private delegation, vagueness, Brennan‟s rule, and First Amendment
protections. For example, I argued that the legislative and procedural dimensions of
Maplewood‟s process are more likely to survive legal scrutiny while the substantive
dimension of Bayonne‟ s process is more robust.
In a normative assessment, the discussion on accountability raises questions, as I
argue, about whether the assumption of design review authority by SIDs necessitates

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expanded accountability to district and even community residents. Neither of the example
processes accounts for that. In the substantive dimension, I argue that the right to equal
representation needs to be protected if a determination of tangible injury to neighboring
property owners cannot be definitively made. From our two examples, there seemed to be
a hesitation to entertaining unconventional ideas. On procedural issues, I stress the
importance of due process and raise issues with both processes in that regard.

8.2.2 The Strategic Calculus of Regulation and Delegation
The interesting question is that given the clear case for a determination of state
action and the clear delegation of legislative powers, why was it left to each local
government to determine what constitutional and institutional safeguards to implement
unconstrained by some general guidelines. It might as well be the intentions where just
that, to legislate around many of those impediments to unfettered discretion. This might
have served its protagonists well so far, as legal challenges to SID involvement in design
review have yet to materialize.
Thus these pragmatic, regulative, and normative assessments of accountability,
equal representation, and due process in design review are made even more salient if we
take into account the strategic objectives of the proponents of privatized design review. In
a controversial argument, Nelson (1999) argues that one advantage of CID private
management of land use is that it disenfranchises newcomers to a neighborhood. In the
example the Nelson marshals, this gives entrenched interests the ability to retain control

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over land use as they adjust to new realities, until newcomers become a majority and are
able to elect their representatives to an HA‟s design review committee.
Nelson here wants to push the idea that initial residents of a particular
neighborhood have a right to shape community character that transcends their actual
proportion of the community‟s population at any given moment in time. Nelson makes
this argument in the context of an illustration of the advantages farmers might have in
staving off densification until they adjust to its ramifications. Although his argument
came in the context of a discussion of a case of preservation, it is not difficult to see how
this argument can be subverted in the context of more strategic motives such as in the
case of design review in the service of exclusionary politics.
If this analysis underscores anything, it is that devolving the government‟s
mandate of regulation is not without its problems. In their book Nonprofits for Hire,
Smith and Lipsky (1993) underscore the all too important point that in the „contracted
out‟ state, values other than efficiency are at stake. As they observe from their field, when
social services are contracted out contractors become „policy makers‟ rather than mere
policy implementers.
The same issues can be raised with respect to design review. In design review, the
margin for „policy making‟ exists on many levels. First, SIDs can literally be policy
makers, as in that they are delegated the work of crafting design guidelines. Also
because design guidelines do, as in the case of Bayonne and Maplewood, leave room for
interpretation in their application, SIDs can also be policy makers in their interpretation
of the design guidelines as they pertain to projects that come before them. When SIDs

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engage in co-design of proposed projects, they are policy makers in an even more
extensive sense. To borrow from Smith and Lipsky, I have identified the values that are
at risk in SID-administered design review as accountability, equal representation, and due
process.
The findings from the previous chapter underscore the all important questions as
to whether the demands of political imperatives and the consideration of legitimacy
constraints can be met while still insuring the institution of accountable processes that
respect the due process rights of applicants and their interest in equal representation. The
state legislature, by instituting a flexible process through which localities can delegate
design review to SIDs and by freeing localities as to the level of required control on
discretion in the legislative, substantive, and procedural aspects of design review, seemed
to believe so.
In both cases that I examined, the involvement of residents in the guidelines
promulgation process was minimal as SID insiders, spearheaded the process. In the
previous section I argued that in Bayonne, the BTC, at least through the Kick Start
program, tended to interpret the design guidelines with a traditional inclination, while in
Maplewood the MVA‟s bent was for a cosmopolitan-chic sensibility. In both cases the
policies were pursued through a form of proactive involvement not typically within the
purview of a regulatory agency. These findings, though not generalizable to the
population of SIDs that are involved in design review, point to issues that raise questions
about when the capacity of local government to design adequate mechanisms of oversight
is sometimes constrained by the very imperatives of regulation, delegation, and agency.

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As to the question „why regulate‟, it is clear from the case studies that the reasons
were partially instrumental and reflected a desire to forestall blight and enhance the
image of the community. Strategic imperatives for regulation, on the other hand, cannot
be discounted. In Northern New Jersey these imperatives are shaped by the dynamics of
economic malaise and demographic change in and around the state‟s Northern
metropolitan areas, the ensuing degradation of the built environment, and efforts by
influential parties to use physical improvements to shore up the status of community.
Design review has always had value as a tool to preserve the economic and social
status a community. Delegated design review has the same uses. In Bayonne, economic
issues take the forefront as the downtown area had already exhibited signs of decline,
while in Maplewood the interventions are akin to a preemptive effort to maintain the
social status of a community bordering a troubled metropolitan area.
In Bayonne, regulation had its roots in BUMA‟s interest in a vibrant downtown.
The BTC however offered an interpretation of contextual design that was very traditional.
For the BTC-administered design review, control over design review was an opportunity
for the BTC‟s private principals (proprietors) to advance a politics of regulation enforcing
ideals of character through traditional design. Similarly, Maplewood was interested in
preserving its „village like‟ character, and the MVA was a vehicle created by the political
gatekeepers to achieve this goal.
If it was any indication of their intentions, both SIDs isolate a typical business
establishment as an example of what is not welcome in town. In Bayonne, illustrated
examples in the guidelines show an explicit aversion to the „dollar store‟ (Bayonne Town

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Center). This business is subject to strict regulation in the written guidelines. In
Maplewood, the „nail salon‟ is the penultimate offender (Maplewood Village Alliance).
The guidelines explicitly regulate the location and number of allowed salons. Needless to
say, the place-making prescriptions by the MVA and the BTC cannot disrupt free market
transactions. What they do however, is send a strong message to proprietors about what
type of place each locale is expected be.
The evidence from around the state reveals that SIDs can and do resort to a
voluntary façade grant program to enforce a design agenda. A voluntary program has the
advantages of bypassing the process of municipal approval of design guidelines, as is the
case in the mandatory process whether one managed by the city or an SID. This raises the
interesting question as to why some SIDs resort to a mandatory process, given this
option.
Of course the most obvious answer is resources. But since most SIDs with a
mandatory program also run a grant program, this answer is only partially satisfactory.
The only other compelling explanation is that there is an even more heightened
perception of an imminent threat of decline that the need for such blanket control is felt
necessary. The narratives from Bayonne and Maplewood support this perception.
As to the question „why delegate‟, the rationale is also partially bureaucratic in
nature. The process is faster, easier, and demands less of a locality‟s resources. This
however does not mean that strategic intent can be discounted. This is especially the case
if we consider the tendency towards a specific interpretation of place character in both

329

localities. This is an interesting question because examples from other SID review
processes shows that localities can enforce very prescriptive stylistic guidelines via SIDs.
The specter of historicity hangs over the urban design agenda of many SIDs in
New Jersey. From the cases of Rutherford and Cranford, it is clear that in some cases
SIDs do espouse an explicitly stylistic design agenda, in this case with historicist
undertones. In both cases, it was felt that striving for place identity would create a
psychological boundary separating the localities from the struggling cities nearby.
SIDs also do in many cases aspire for places with contemporary character. In the
case of rapidly gentrifying townships (Bloomfield) or historically multicultural
neighborhoods (Newark Ironbound) that we see an openness to contemporary cultural
expression. This diversity begs the question of why is it that some SIDs have no qualms
with stylistically explicit guidelines. Bayonne and Maplewood seem like the oddity in
this respect.
Municipalities have also often remarked that the uncertainties with the legal
standing of design review has precluded them from more widespread adoption. But from
the analysis of design review boards in Ramsey and Montville, it is clear (more so in the
case of Ramsey) that pursuing an explicit character agenda through a prescriptive stylistic
approach is also possible through a process of public design review.
My reading of review board deliberations in both cities over a two year period can
be marshaled to make a case for one important advantage of SID-administered design
review: a traditional review board is limited in its discretionary authority as a regulator.
As the cases of Bayonne and Maplewood attest, in the context of delegation one can

330

expect larger margins of discretion in the legislative, substantive, and procedural
dimensions of review.
In Bayonne, the initial record evidenced a desire to enable the instrumental goals
of expertise and flexibility. But the BTC also did not exactly act as an impartial regulator,
but capitalized on the opportunity to assume both review and design responsibilities. The
BTC, convinced that absent proactive involvement proprietors would simply defer to the
judgment of contractors and landlords, was interested in this type of involvement.
This was made possible more so by the fact that the process for design review is
not clearly spelled out. No approvals other than those of the BTC consultant were
required. On the other hand, since the guidelines simply did not anticipate the kind of
large scale development that the BTC had to contend with, the process opened doors for a
large margin of discretion when it came to reviewing some of the larger projects. A
more important route for proactive design came in the form of design services offered in
exchange for automatic approvals through Kick Start.
In the case of the MVA, it is clear that although the process was designed to
afford the applicant a recommendation for approval or denial, the MVA design
committee in reality was also proactively involved in design. This was mainly achieved
through the voluntary informal review process. The small scale of most of the projects
on Maplewood Ave., mainly façade renovations, meant that few proprietors had the
means to retain professional design consultants. The MVA filled this need. The MVA
legitimized its efforts with the political conviction that positive change could not be

331

achieved without a proactive effort that acculturated local merchants, clients, and
contractors to the MVA‟s intended goals.
In his report on the conditions on Maplewood Ave., Milder (2004) makes
reference to the success nearby Livingston and Cranford had in attracting quality
developers. Whether in the case of the Cranford Crossing or the Livingston Retail
Village, Milder notes that the natural flow of local economic forces was not enough to
make the projects happen. In each of these communities, there had to be a proactive,
project-oriented approach to development that stimulated project conceptualization and
planning.
This discussion leads to the interesting question as to why, in the two case studies,
a prescriptive approach was not instituted in the first place if there is evidence that
proactive involvement was used to effectuate an SID‟s interest in a particular
interpretation of place character. A locality might simply not be endowed with a building
stock of an identifiable character as in the case of Maplewood, or the building stock
might alternatively be identifiable to such an extent that a margin for creative
interpretation is tolerated, as in the case of Bayonne. One however could also see a role
for strategic motivations, such as in the case of the absence of local consensus over a
concrete stylistic vision.
In her study of review boards across the country from twenty years back, Habe
(1989) notes that the more precise the guidelines, there was less opportunity for political
influence on the design review process. If one interest group has a disproportionate
influence over the affairs of the SID, then strategic advantages of SID administration in

332

the form of weaker accountability, narrow representation, and compromised due process
might prove advantageous in the context where outright legislation of preferences is not
feasible. In this case, proactive involvement makes up for this lack of consensus on
vision.
These conclusions would lead to the interesting question as to why, given these
observations, was the delegation of design review not as controversial as it could have
been. When extensive public input was sought by the Atlantic Group and the Community
Advocates, the issue was setting up the SIDs themselves, rather than a deliberation on the
design review provision. In both cases, it was only after a couple of years after that event
that the SIDs exercised their authority to devise the guidelines. It is difficult to tell
whether this staggered approach to acceptability was strategic or merely practical, but
given the results, it was definitely fortuitous.
At the time of the creation of the BTC, Bayonne was suffering from a period of
decline as it lost businesses and residents to gentrifying neighboring cities such as Jersey
City and as it saw its demographics altered by a sustained in-migration of ethnic minority
residents. Given these facts, can we speak of the capture of the policy process? Is there a
latent cultural agenda where the traditional aesthetic is part of the idealization of the city
of the early 20
th
century as an era of harmony and prosperity?
It is also clear that although Maplewood residents prioritized a walkable,
commercially vibrant compact downtown more than they did character issues, there is
strong evidence that the MVA pursued a design agenda predicated on a metro-chic vision
of Maplewood Ave. Maplewood borders Irvington, a troubled city where ethnic

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minorities have for more than a few decades constituted the majority of the local
population.
Even before the promulgation of design standards, the MVA had an early
experience with proactive policy implementation when it helped successfully challenge
New Jersey Transit‟s plans for a multi-level parking structure in 1997 (Maplewood News-
Record October 14 1999). The declared motives, fear that the parking garage would be
„cold and imposing‟ and would jeopardize the „small town feel‟, also masked a fear that
the structure would invite crime and delinquency. The MVA mobilized public support to
defeat the proposal (Maplewood News-Record Jan. 12 1995).
The MVA‟s very inception can be traced to the racial turmoil that was concurrent
with the recession of the early 1990s. For city residents, this turmoil for the first time
alerted them to just how porous the boundaries were between both towns that are
connected by Springfield Avenue. Was the MVA acting in its role in defending the social
standing of Maplewood as an upscale suburb?
How formative where these strategic imperatives of the processes in the particular
cases of Bayonne and Maplewood is debatable. The fact remains that delegation raises
questions about accountability, representation, and due process that cannot be ignored. If
we are inclined to believe that the advantage of delegation, in my view, is to go beyond
regulation as subtle tool in the defense of community in the state‟s continuing saga of
spatial and social polarization, then these issues require further attention.

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8.2.3 Looking Forward
In this study, I made the assertion that a legitimate review process needs satisfy
certain considerations of accountability, equal protection, and due process. Democratic
theory suggests that insulating government from the elected representatives of the people
is not legitimate (Koppel 1999). This research was first motivated by the question of
whether delegating design review to SIDs was perpetrated with this strategic objective in
mind. I argued in particular that the basis for exemption of SIDs that administer design
review from „one person one vote‟ and hence from accountability to a community‟s
residents rests on shaky grounds. Given the flexibility with which localities can setup
review processes, the latitude for arbitrary determinations is large. The confounding of
regulation and design involvement further complicates matters.
Carmona et al (2003) present an overview of the exclusionary tactics in the public
realm, compiling insights from works by David Flusty, Anastasia Lokaitou-Sideris, and
Tridib Banerjee among others. Some of the strategies surveyed include physical,
psychological, and access restrictions. What I am arguing for in this study is that equal
attention needs to be paid to the cultural appropriation of the public realm. One important
effect of physical segregation is the effect it has on social learning by retarding the
tolerance and appreciation of peoples of other cultures. The „unequal protection‟ of the
right to the public narrative, like physical segregation, compromises social learning.
It is understandable that local governments and interest groups would make use of
the opportunities to involve SIDs. For the state of New Jersey, the institution of the SID
existed in other states and has had a history whereby its elements and best practices had

335

matured, and it only seemed fortuitous to „piggy back‟ design review authority on top of
SID legislation than rethink a totally novel process. For local governments, the explicit
sanction of design review within the SID framework was also fortuitous because it
afforded them the legal certainty they were seeking. Furthermore, this experiment with
SIDs has highlighted the benefits of a functionally integrated approach to redevelopment.
These legitimate concerns, however, need not be met by a process that prioritizes
the interests of the business community. This conviction informs my reservations against
the delegation of design review to SIDs, which in turn preclude me from being able to
offer reformative recommendations that can be accommodated within the framework of
SIDs mainly representative of business interests. There is something to learn, however,
from the long and established experiment with special districts in the United States. To
this effect there is nothing to preclude the institution of something akin to a „design
regulation district‟ where the challenges of expertise, flexibility, and cost can be met
without compromising on some of the normative criteria outlined in this study.
Such a district would expand accountability to, at least, residential property
owners in the district in addition to business and commercial property owners. The
nominal representation of residents on SID boards has its legal justification in the
unequal interest in the benefits of the district. Once design review authority is added to
the palette of powers, this does not hold. All city residents have an interest in the
character of their downtowns, and more so residents of the district. Only equal
representation would insure this interest is considered. This has a couple of advantages.

336

First, this is would go a long way towards insuring that the guidelines reflect the
community character residents seek. The residents of Bayonne and Maplewood
overwhelmingly expressed interest in having input on guidelines development. The state
enabling legislation‟s language that sanctions the delegation of guidelines promulgation
„in case the municipality finds the SID qualified‟ is a serious understatement of the
politics involved in the assignments of rights over place-making, possibly even an
intentional attempt at obfuscation. For a discipline that places so much stock in
accountability and representativeness, a process where SID business interests develop
guidelines that affect the community as whole just cannot be justified.
Secondly, a district dedicated to design review would find the need and rationale
for transparent, just processes that do not invite arbitrary judgments and interventions
beyond its mandate. This respect of due process will be pressed for by commercial
property owners before everyone else simply as a consequence of their loss of the control
of the regulatory agency to broader array of stakeholders. Local and state actors can
engage in an effort to lay down best practice processes that districts around the state can
adopt.
A case could still be made that the purview of these districts should be
commercial property. This however, would most likely not be the case as mixed-use
developments become more popular and blur the line between commercial and residential
and further complicate the issue of incidence of benefits. The inclusion of all types of
property would also satisfy the requirement for equal protection, and further residents‟
sense of ownership of their district and the work it has set to achieve.

337

This experiment in New Jersey holds promise for nationwide adoption given the
prevalence of SIDs in all states. For the case studies presented herein, I chose two SIDs
whose objectives did not, ostensibly, interpret character in any explicit fashion. The aim
was to see whether business interests would exert undue influence on negotiated policy
and move it in a specific direction, and whether delegation facilitates this objective.
To bring this research full circle, the two other routes to design review in the state
need to be accounted for: design review boards, and main street programs. The
framework and questions of this study can bear the understanding of why some localities
chose to take those routes, and understanding the imperatives and constraints that shape
recourse to therein will enrich our knowledge of the design review in the state of 526
municipalities.
The case studies alert us to many issues that I have addressed above and that merit
further scrutiny given the state-wide interest in this program. These issues however also
bear upon considerations of a more general nature. The proactive approach to design
review that both SIDs pursued raises many issues. Here the co-production of design over
and above the mandate of a regulatory agency requires serious scrutiny.
Design guidelines are promulgated in agreement with the respective municipal
authorities. Guidelines, in the final analysis are not mere instruments to an end. Hajer‟s
(1995) leading study of environmental policy-making in the Netherlands has illustrated
how organizations enter in cooperative alliances not because of agreement over
principals, but because they can craft certain policy statements agreeable to all. Similarly,
Cuff et al (1994) illustrated how specific design solutions, and not design goals, lead to

338

the resolution of contentious development impasses. Guidelines, therefore, are akin to
political consensus over goals and one that needs to be honored.
This study also raises important questions about the extent to which Self
Regulating Associations (SRAs) should be subject to the polity‟s supervision. I already
made one argument about the nature or extent of the public authority SRAs hold, and the
importance of monitoring whether SRAs are being unduly abused as vehicles to
materialize the interests of unrepresentative groups.
But there is another, more philosophical argument about the extent to which
society depends on SRAs to further the political process. Today more than ever, SRAs
such as SIDs have come to play important roles in civic life as vehicles for policy
formulation. The argument is that if society as whole has entrusted SRAs with this
democratic burden, then it should make sure that they uphold its norms. Self government
requires the mediation between self interest and the norms of a community, and is an
affirmation of the virtues that control public life (Black 1996).
It is in this sense that it is important that an SRA‟s operations respect individual
freedoms, rights, and most critically nurture peoples‟ abilities to participate in self
governance. In her work on CIDs, Franceze (2002) has lamented the loss of the sense of
community as HAs rely on predetermined guidelines to define and defend community.
Franceze proposes that a process where goals and processes are deliberated on in timely
response to challenges fosters involvement, social capital, and civic trust. This is the type
of review process that any normative agenda should aspire to.

339

In conclusion, and given the analysis in this study, I believe the delegation of
design review to SIDs should be structured to introduce more constitutional protections
than what is expected of regular design review, not less. Only then can the rewards of
institutional innovation be enjoyed by all stakeholders in a community in a just and
equitable manner.
340

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368

Appendix 1
Special Improvement Districts in New Jersey

Northern New Jersey

1.The Englewood Special Improvement District

210 N. Van Brunt Street Englewood, NJ 07631

2. The Hackensack Upper Main Alliance

238 Main St. Suite 100 Hackensack, NJ 07601

3. Maywood Special Improvement District

15 Park Avenue Maywood, NJ 07607

4. Rutherford Downtown Partnership

176 Park Avenue Rutherford, NJ 07070

5. Cedar Lane Business District

555 Cedar Lane Teaneck, NJ 07666

6. Bloomfield Center Alliance

2 Broad St, Suite 201 Bloomfield, NJ 07112

7. Central Avenue Business Improvement District

44 City Hall Plaza East Orange, NJ 07019

8. Springfield Avenue Center Business Improvement District

604 Central Ave. Suite 4-5 Irvington, NJ 07018

9. Intown Livingston

154 S. Livingston Avenue Livingston, NJ 07039

369

Appendix 1 continued

10. Downtown Millburn

350 Millburn Avenue Millburn, NJ 07041

11. Montclair Center

7 North Willow St., Suite 4A Montclair, NJ 07042

12. Newark Downtown District

15 Clinton Street Newark, NJ 07102

13. Downtown West Orange Alliance

66 Main Street West Orange, NJ 07052

14. Central Avenue Special Improvement District

366 Central Avenue, Suite 201 Jersey City, NJ 07307

15. Downtown Jersey City Historic Special Improvement District

P.O. Box 18 Jersey City, NJ 07303

16. The McGinley Square Partnership

753 Montgomery Street Jersey City, NJ 07305

17. Monticello Avenue Main Street

99 Monticello Avenue Jersey City, NJ 07304

18. East Hanover Community Partnership

411 Ridgedale Avenue East Hanover, NJ 07936

19. Madison Downtown Development Commission

Kings Rd, Hartley Dodge Memorial Madison, NJ 7940

370

Appendix 1 continued

20. Morristown Partnership

44 Market Street Morristonw, NJ 7960

21. New Providence Business and Professional Association

360 Elkwood Avenue New Providence 07974

22. Downtown Clifton Economic Development Group

1187 Main Avenue, Suite 3C Clifton, NJ 07011

23. Downtown Paterson SID

100 Hamilton Plaza #1201 Paterson, NJ 07505

24. Bunker Hill SID

100 Hamilton Plaza #1201 Paterson, NJ 07505

25. Historic Midtown Elizabeth Special Improvement District

1139 E. Jersey St., Suite 616 Elizabeth, NJ 07201

26. Elizabeth Avenue Partnership

1086 Elizabeth Ave, Suite 4 Elizabeth, NJ 07207

27. Linden Economic Development Corp

301 Northwood Avenue Linden, NJ 07036

28. Positively Plainfield 126 East Front Street

Plainfield, NJ 07060

29. Rahway Center Partnership

75 E. Cherry Street Rahway, NJ 07065

371

Appendix 1 continued

30. Downtown Summit

PO Box 1502 Summit, NJ 07902

31. Union Center Business District

1976 Morris Avenue Union, NJ 07083

32. Westfield Today

105 Elm Street Westfield, NJ 08998

33. Hakettstown Business Improvement District

PO Box 30 Hackettstown, NJ 07840

34. Washington Borough Business Improvement District

21 Belvedere Avenue Washington Twp. 07882

35. Trenton Downtown Association

23 E. State Street Trenton, NJ 08608

36. Carteret Business Partnership, Inc.

61 Cook Avenue Carteret, NJ 07008

37. New Brunswick City Market

One Penn Plaza New Brunswick, NJ 8901

38. Perth Amboy Business Improvement District

260 High Street Perth Amboy 08861

39. The Oak Tree Road SID

1 Main Street Woodbridge, NJ 07095

40. Main Street SID
372

Appendix 1 continued

1 Main Street Woodbridge, NJ 07095

41. The New Brunswick Street SID

1 Main Street Woodbridge, NJ 07095

42. Freehold Center Partnership

17 Broad Street Freehold, NJ 07728

43. Highlands Business Partnership

P.O. Box 375 Highlands, NJ 07732

44. Keyport Business Alliance

59 Front St.PO Box 636 Keyport, NJ 07735

45. Red Bank RiverCenter

20 Broad Street Red Bank, NJ 07701

46. Hamilton Street Business & Commercial Corp

602 Hamilton Street Somerset, NJ 08873

47. Somerville District Management Corp

41G West High Street Somerville, NJ 08873

South New Jersey
48. Atlantic City SID
Garage at Gordon's Alley Atlantic City 08401
49. Audubon Business & Prof Alliance & Mgmt Corp
121 W. Merchant St. Audubon, NJ 08106
373

Appendix 1 continued

50. Greater Camden Partnership
1 Market St. Camden, NJ 08104
51. Collingswood Partners
678 Haddon Avenue Collingswood, NJ 08104
52. Haddon Township Business Partnership
341 Haddon Ave. Suite B Haddon Twp, NJ 08108
53. Partnership for Haddonfield
2 Kings Court Haddonfield, NJ 08033
54. Wildwoods Boardwalk Special Improvement District
PO Box 1135 Wildwood/N. Wildwood, NJ 08260
55. Wildwood Business Improvement District
PO Box 1135 Wildwood, NJ 08260
56. Millville Development Corp. (Main St. District)
PO Box 609 Millville, NJ 08332
57. Vineland Downtown Improvement District/Main Street
629 E. Wood St., Suite 7 Vineland, NJ 08360
58. Seaside Heights Business Improvement District
PO Box 43 Seaside Heights, NJ 08751
59. Toms River BID
18 Main Street Toms River, NJ 08753
60. Stand Up for Salem
150 W. Broadway Salem, NJ 0807
374

Appendix 2
Letter of Exemption from IRB Review

UNIVERSITY OF SOUTHERN CALIFORNIA
UNIVERSITY PARK INSTITUTIONAL REVIEW BOARD
FWA 00007099

Approval Notice for Exempt Review Applications

Date: Mon Oct 06 15:48:15 2008
Principal Investigator: Ramzi Farhat
Faculty Advisor: Tridib Banerjee
Co-Investigators:

Project Title: COMMUNITY DESIGNERS USC UPIRB # UP-08-00260

The University Park Institutional Review Board (IRB) designee determined that your project
meets the requirements outlined in 45 CFR 46.101 (b) (2), and qualifies for exemption from IRB
review. IRB Exemption of this study was granted on 10/6/2008.

The UPIRB has made minor revisions to the Information Sheets; the marked documents are
attached for your records. Please use the documents when making revisions in the future.

Your study is exempt from the regulations under 45 CFR 46; however, in order to be compliant
with the principles of the Belmont Report, the UPIRB recommend that you use the revised
documents when recruiting or enrolling potential subjects. The recruitment document(s) and/or
Information Sheet will not be stamped by the UPIRB, and can be accessed under the
“Documents” tab in the study workspace in iStar.

It is the researchers’ responsibility to make sure all policies and procedures are adhered to,
including UPIRB and USC Policies and Procedures.

Only those persons listed in section 2 of the iStar application can conduct study related activities,
including recruitment, enrollment, data collection, etc. CITI must also be obtained by each
individual. Only certified documents can be used during the conduct of this study, if additional
recruitment materials, consent or questionnaires are used, they must be submitted for review and
approval prior to implementing.

Sincerely,
RoseAnn Fleming, Program Specialist
375

Appendix 3
Booklet for Survey Respondents

University of Southern California
INFORMATION/FACTS SHEET FOR NON-MEDICAL RESEARCH

For many years now the [township] Special Improvement District has been an integral partner in
the township’s efforts to revitalize [main street] and plan its development in a manner that is
consistent with the aspirations of the local community. Ramzi Farhat, a Doctoral Candidate at the
University of Southern California would appreciate your participation in a research study
designed to evaluate the opinions of local residents about the local design review process. Your
participation is voluntary and you must be aged 18 or older to participate. You will be asked to
complete a survey. The survey will be asking questions about what policies, procedures and
issues that you determine are important to any design review process in which the Special
Improvement District is involved.
The survey is anonymous, and should no more than 20 minutes of your time to complete. We
anticipate no risk to you as a result of your participation in this study other than the
inconvenience of the time to complete the survey. You do not need to answer any questions you
do not want to. You may also be asked to participate in an interview.
Responses to the survey questions represent your consent to participate.
While there may be no immediate benefit to you as a result of your participation in this study, it
is hoped that we gain valuable information about the contributions of Special Improvement
Districts to design regulation that will be of future value to society. The information that you
give us on the questionnaire will be recorded in anonymous form. The questionnaire has an ID
number of mailing purposes only. This is so your address can be taken off the mailing list when
your questionnaire is returned and you won’t be sent additional follow-up mailings. All
completed surveys will be kept in a locked file cabinet in the office of Mr. Ramzi Farhat and will
not be available to anyone not directly involved in this study. Once the study is completed, we
would be glad to give you the results. Three years after the study has been completed, the data
will be destroyed.
If you have any questions, please contact the researcher at:
Mr. Ramzi Farhat, Doctoral Candidate
University of Southern California
333 Riverside Drive apt. 1
Johnson City NY 13790
E-mail: rfarhat@usc.edu

376

Appendix 3 continued

If you would like to contact the Institutional Review Board responsible for the review of this
research study, please contact the University Park IRB, Office of the Vice Provost for Research
Advancement, Stonier Hall, Room 224a, Los Angeles, CA 90089-1146, (213) 821-5272 or
upirb@usc.edu.
A focus group or individual interview will also be conducted. If you are interested in
participating in the interview, please check the appropriate box below:

□ Yes, I am interested in participating in the interview. Below is my email address or telephone
number:

Email Address: _________________________________

Telephone number: ______________________________ (please include area code)

□ No, I am not interested in participating in an interview. I will not supply my email address or
telephone number.

377

Appendix 3 continued

378

Appendix 3 continued

379

Appendix 3 continued

Text of the Survey Instrument
Q1 | From each pair of adjectives, please choose the one that most closely describes the character
that you think downtown Bayonne should have.
Q1-A: Bayonne’s town center should have Traditional or Modern design
Q1-B: Bayonne’s town center should have Casual or Upscale design
Q1-C: Bayonne’s town center should have Quaint or Urban design

Q2 | To achieve the character you had in mind in Q1, how important is it to pay close attention to
the following?
Q2-A: How important is it to pay close attention to the Architectural styles, Materials, and
Details of buildings
Q2-B: How important is it to pay close attention to the Themes and Designs of shops and
restaurants
Q2-C: How important is it to pay close attention to the Designs of public outdoor spaces,
Benches, Planters, and Trash cans

Q3 | As a goal, it is important to make Downtown Bayonne (Broadway
St.) the following type of place:
Q3-A: It is important to make Bayonne’s town center (Bayonne Ave.) a place that has a diverse
mix of restaurants, cafes, and shops

380

Appendix 3 continued

Q3-B: It is important to make Bayonne’s town center (Bayonne Ave.) a place that has a
distinctive character
Q3-C: It is important to make Bayonne’s town center (Bayonne Ave.) a place that allows for
events such as markets, fairs, or concerts
Q3-D: It is important to make Bayonne’s town center (Bayonne Ave.) a place that has a variety
of offices and services
Q3-E: It is important to make Bayonne’s town center (Bayonne Ave.) a place that reflects the
surrounding community’s cultural identity
Q3-F: It is important to make Bayonne’s town center (Bayonne Ave.) a place that encourages
walking, sitting, and enjoying the scenery

Q4 | What would be the single most important goal from the list above? ____ (A,B,C, ... etc)
A: A place that has a diverse mix of restaurants, cafes, and shops
B: A place that has a distinctive character
C: A place that allows for events such as markets, fairs, or concerts
D: A place that has a variety of offices and services
E: A place that reflects the surrounding community’s cultural identity
F: A place that encourages walking, sitting, and enjoying the scenery

381

Appendix 3 continued

Q5 | In deciding on design guidelines for the downtown area, it is important to involve the
following groups:
Q5-A: It is important to involve the residents of the city
Q5-B: It is important to involve the state government agencies
Q5-C: It is important to involve the downtown property owners
Q5-D: It is important to involve the professional consultants
Q5-E: It is important to involve the downtown business owners
Q5-F: It is important to involve the community organizations in the city

Q6 | Which would be the single most important group from the list above? ____ (A,B,C, ...etc)
Q6: Which would be the single most important group to involve?
A | Residents of the city
B | State government agencies
C | Downtown property owners
D | Professional consultants
E | Downtown business owners
F | Community organizations in the city

382

Appendix 3 continued

Q7 | In reviewing the designs of proposed projects in the downtown area, the following
considerations should be a priority:
Q7-A: In reviewing the designs of proposed projects in the town center, the merits and qualities
of each project should be a priority
Q7-B: In reviewing the designs of proposed projects in the town center, the general community
support for the project should be a priority
Q7-C: In reviewing the designs of proposed projects in the town center, the designs of other
buildings in the downtown area should be a priority
Q7-D: In reviewing the designs of proposed projects in the town center, the exact text of the
design guidelines should be a priority
Q7-E: In reviewing the designs of proposed projects in the town center, the opinions of the
public attending the review hearing should be a priority
Q7-F: In reviewing the designs of proposed projects in the town center, the reviewers’
independent judgments should be a priority

Q8 | What would be the single most important consideration from the list above? ____ (A,B,C,
... etc)
A | The merits and qualities of each project
B | General community support for the project
C | Designs of other buildings in the downtown area
D | The exact text of the design guidelines
383

Appendix 3 continued

E | The opinions of the public attending the review hearing
F | The reviewers’ independent judgments

Q9 | The agency responsible for design review should prioritize the following:
Q9-B: The agency responsible for design review should prioritize creativity in making design
guidelines work for changing times
Q9-C: The agency responsible for design review should prioritize efficiency in making decisions
with reasonable time and costs
Q9-D: The agency responsible for design review should prioritize taking responsibility for
consequences of decisions
Q9-E: The agency responsible for design review should prioritize striving for the most objective
interpretation of the design regulations
Q9-F: The agency responsible for design review should prioritize helping applicants propose
projects consistent with design guidelines

Q10 | What would be the single most important consideration from the list above? ____ (A,B,C,
... etc)
A | Judging all projects with the same set of standards
B | Creativity in making design guidelines work for changing times
C | Efficiency in making decisions with reasonable time and costs
D | Taking responsibility for consequences of decisions
384

Appendix 3 continued

E | Striving for the most objective interpretation of the design regulations
F | Helping applicants propose projects consistent with design guidelines

Q11 | The following describes different tasks in the design review
process for projects in the downtown district.
Planning Board Design Review Committee Special Improvement District
Q11-A1: should provide input on writing design guidelines?
Q11-B1: should write the design guidelines?
Q11-C1: should help applicants adhere to design guidelines?
Q11-D1: should review projects for conformity to guidelines?
Q11-E1: should approve/reject reviewed projects?

Q12 | You live or work in Bayonne mostly because of
Ease of commute
Family and social ties
The character of the township
The performance of the school district
Low crime rates
Its stature vis-à-vis neighboring cities
Business opportunities in town

385

Appendix 3 continued

Q13 | Of the choices in Q12, which one are you most concerned might be compromised in the
future?
Ease of commute
Family and social ties
The character of the township
The performance of the school district
Low crime rates
Its stature vis-à-vis neighboring cities
Business opportunities in town

Q14 | How often do you visit Broadway St.?
Q15 | How many years of school have you attended?
Q16 | What is your ethnicity?
Q17 | What is your annual household income?

386

Appendix 4

Information Sheet for Interviewees

University of Southern California
INFORMATION/FACTS SHEET FOR NON-MEDICAL RESEARCH

For many years now the [township] Special Improvement District has been an integral
partner in the township’s efforts to revitalize [main street] and plan its development in a
manner that is consistent with the aspirations of the local community. Ramzi Farhat, a
Doctoral Candidate at the University of Southern California would like to invite you to
participate in a research study designed to evaluate the opinions of local residents about
the local design review process. Your participation is voluntary and you must be aged 18
or older to participate. You will be asked to participate in an interview, either alone or
with other people from your community. You will be asked questions about what
policies, procedures and issues that you determine are important to any design review
process in which the Special Improvement District is involved.

The interview should take no more than 45-60 minutes of your time. There are no risks
anticipated to you as a result of your participation in this study other than the
inconvenience of the time to complete the interview. You could, however, experience
some discomfort if you have had an uncomfortable interaction with the Special
Improvement District and your completing the interview causes you to remember this.
You do not have to answer any questions you do not want to. The interview will be
audio-taped. If you do not want to be audio-taped, you cannot participate.

Responses to the interview questions represent your consent to participate.

While there may be no immediate benefit to you as a result of your participation in this
study, it is hoped that we gain valuable information about the contributions of Special
Improvement Districts to design regulation that will be of future value to society. If the
information you give us is recorded, it will be recorded in anonymous form. All
recordings will be kept in a locked file cabinet in the office of Mr. Ramzi Farhat and will
not be available to anyone not directly involved in this study. Once the study is
completed, we would be glad to give you the results. Three years after the study has been
completed, the data will be destroyed. If you have any questions, please contact me at:

Mr. Ramzi Farhat, Doctoral Candidate
University of Southern California
35 Silver Lake Scotchtown Rd. Apt. 5A3
Middletown NY 10940
E-mail: rfarhat@usc.edu

387

Appendix 4 continued

If you would like to contact the Institutional Review Board responsible for the review of
this research study, please contact the University Park IRB, Office of the Vice Provost for
Research Advancement, Stonier Hall, Room 224a, Los Angeles, CA 90089-1146, (213)
821-5272 or upirb@usc.edu.

Abstract (if available)

Abstract The New Jersey state legislature has devised a process through which municipalities can delegate design review to Special Improvement Districts (SIDs). Conceiving of the program as a form of ‘self-help’ in urban revitalization, the state offered local government little guidance and wide discretion as to how SIDs may structure the review process. Other than the issue of why some municipalities lent their authority to SIDs while others did not, this program raises the following important questions: How can we understand how the different review processes took the shape that they did? What are the consequences of this delegation of authority in terms of the public interest?

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Asset Metadata

Creator Farhat, Ramzi Raif (author)

Core Title Beyond regulation: special improvement districts, design review, and place-making in New Jersey

School School of Policy, Planning, and Development

Degree Doctor of Philosophy

Degree Program Policy, Planning, and Development

Publication Date 08/09/2010

Defense Date 12/15/2009

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag business improvement districts,design review,OAI-PMH Harvest,planning theory,urban design,urban governance

Place Name Bayonne (city or populated place), countries, 3rd order divisions: Maplewood