ABSTRACT
Communities are increasingly adopting discretionary review approaches to design review issues ranging from fences in neighborhoods to office buildings in downtowns. This paper will examine the substantive and procedural circumstances that can produce abuses of discretion in the implementation of design review to achieve various regulatory objectives. The first part of the paper will define the meaning of "abuse of discretion" and analyze the key constitutional principles that are implicated by design review as a discretionary review process. The key constitutional principles include the delegation and vagueness doctrines, procedural due process, freedom of speech, substantive due process and equal protection. Caselaw examples will analyzed to illustrate the application of these principles. From these principles and case examples, criteria will be presented for developing standards/guidelines and procedures for design review that limit the potential for abuses of discretion. The paper will also examine models of design review processes from around the country. The last part of the paper will propose formal legislative remedies for limiting the potential for abuses of discretion in design review.
