Form-Based Codes as to Land Registration has different aspects that should be considered. In layman’s terms, the term “form-based code” means that a builder or developer should create a structure that is in accordance with the necessary laws while still being able to create a unique place according to how he wants the outcome to be. It is not as easy as it seems since form-based codes pertain to the relationship of the developer with that of the community at large.
In this type of regulation, matters such as the proper distance of the building with another, the distance of the building with the public street and other similar concerns take precedence. Thus, it can be said that in this form, due regard is given to the welfare of the public rather than that of the builder or developer. The builder or developer must exercise his rights within the limits imposed by law. The legal issues that are presented in these form-based regulations are as follows: Authorization, Discretion and Delegation.
The main idea of authorization pertains not to the manner of use of the land but on that of the form of the property that would be built on it. Here, the concern is not much on the purpose or use of building the property but on how to properly build it in accordance with applicable laws such as the “Village Districts Act” or Bill No 1268. This means that due regard is given to several external factors which should be strictly followed like following the dimension of the streets to give the pedestrians the right to pass, to promote safety of the neighborhood, and to uphold the right of its neighbors for their personal space.
However, this should not be understood as disregarding the use of the land, there is here a coordination of both the use and the form thereof for the benefit of both the community and the property owner. In authorization, the police power of the state is exercised. This power has been said to be very powerful since it gives the government the authority to interfere with the lives of the people in every aspect of their life as long as it would be beneficial to the public at large.
For example, by virtue of this police power the state can regulate the design of a building that a person wants to create. A person cannot create a structure that is similar to another or that is strikingly different from another. For the legal issue on discretion, this can be addressed through the act of the property owner by adhering to the required laws for building the property while incorporating his wants as to the design of his property.
With this, the owner would follow the law and still achieve his desired outcome of the property. There cannot be any absolute freedom in the lives of any person, it will always be subject to some form of restraint for the good of the society. Hence, one is given the privilege to do what he wants with his property but subject to lawful guidelines imposed by the authorities. The guidelines to be given should not be too stringent in that it results to a deprivation of the property of the person without due process of law.
Both parties should meet half-way for the success of their respective objectives. As to the issue of delegation, there would be a body that would be composed of individuals who are considered as experts in their field to ensure that there is proper representation in the given development project. For example, the group can be composed of an architect, a government representative, a subdivision representative and the developer or owner. But, the problem lies with the degree of decision-making that can be exercised by them.
It is best if they would merely act as a body with recommendatory powers but whose decision cannot be considered as the final resolution of the matter. Their function is merely to screen and ensure that the project is in compliance with the laws. Reference: Robert J. Sitwoski. , “Form and Substance: What Land Use Lawyers Need To Know About Form-Based Land Development Regulations. Zoning and Planning Law Report (March 2007) Vol. 30, No. 3