Agenda - Planning Commission - 08/06/2009

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_Regulating the Architectural Character of a Commu~ity By James R. Brindell The physical and aesthetic character ofa community-is the sum of thousands of decisions made over time by public and private property owners in the development and redevelopment of parcels of land and the structures on those parcels. Some communities also employ architectural review processes to develop and maintain community character. This article evaluates the-problems with typical standards used in architectural review and offers suggestions to improve those standards. Architectural review programs represent significant intrusions by the government into the preferences of property owners in the way their homes or buildings look. The practical is- sues involve the types and specificity of those standards and their application by citizen boards. This article will use, forthe purposes of discussion, the ordinance criteria of one South Florida community with a well-educated, highly successful population with a strong commitment to architectural controls. That community conducts some 100 architectural reviews per year. For these programs to work effectively and fairly, the community needs to have a clear view of the objectives. Standards that place too great a range of interpretation in the hands of the implementing boards are not reaso-nable and undermine the confidence o~property owners in the programs. Architectural review criteria should provide clear guidance to property owners and to their architects. Those criteria should allow fora wide range ofarchi- tectural solutions. Otherwise, a community will achieve a level of sameness over time instead of a richness of character and expression. Architectural review decisions are consid- ered quasi-judicial actions by the courts. This requires that such decisions be supported by competent substantial evidence. A finding that merely recites the words of a review criterion is a conclusion that, by itself, is not competent substantial evidence. There must be an articu- 164 lation of the evidence presented at the hearing that establishes each ofthe required elements of the criterion. "Competent substantial evi- dence" has been defined by the courts to mean evidence that is sufficiently relevant and mate- rial that a reasonable mind might accept as adequate to support the conclusion reached. It must do more than create a suspicion of the existence of the factto be established, and it cannot be solely based on hearsay. The review criteria themselyes are also subject to legal challenges for not being rea- sonably related to a potential detriment to public health, safety, and general welfare; for allowing so much discretion that they invite unequal application to those regulated; or because they are so vague and lacking in ob- jective elements, or factors, thatthose affected are notreasonably on notice as to the opera- tion and effect of the ordinance. The boards that administer architectural standards often receive no training about the nature of their roles in quasi-judicial hearings and how they should approach the application ofthose standards to individual properties. The members of such boards are in effect judges who make findings of fact and conclusions of law. Understanding one's preferences and prejudices and then being able to disassoci- ate them from the examination-of the facts presented and the application of the review criteria is the fundamental skill of a judge. It is often difficult for the members ofthese boards, when applying program standards, to suspend ,.,..~ -. - .-' ~:;;;;.::. :.~.~ ZONINGPRACTICE 7.09 AMERICAN PLANNING ASSOCIATION Ipage ;,