Monday, February 18, 2013

Follow up: Readers comments on “Two hypotheses on why there are so few new urbanism cases”

Last week I wrote a blog post stating two hypotheses for why there are so few form-based code cases.  Briefly, my hypotheses were that form-based codes are still largely optional in jurisdictions where they would be controversial; or, in the alternative, they are essentially acting as a form of pre-project approval for large developments, and thus have implicit developer approval. 

I received several great comments from all over the country, both from professors and practicing attorneys, each largely confirming my hypotheses.  That was re-assuring!  I wanted, in particular, to acknowledge the helpful comments of Nick Morantz, a Ph.D. candidate at MIT's planning school, who has studied the issue and wrote the following nice summary to me:

Based on my observations, form based codes seem to fall into four broad categories: (1) advisory documents; (2) components of design guidelines for expedited permitting review; (3) components of CC&Rs for homeowners associations; and (4) binding public law. Categories 1 and 2 correspond to your hypotheses. Category 4 seems vanishingly small.

Mr. Morantz, who has studied form-based codes in depth, recommended Blaesser's Discretionary Land Use Controls as the best compilation of form-based code cases.  He has also written an interesting book chapter I’d recommend, “The Business of Codes:  Urban Design Regulation in an Entrepreneurial Society,” along with MIT planning professor and planning department head Eran Ben-Joseph in the book Urban Design in the Real Estate Development Process

Thanks to Mr. Morantz, and all the others, who wrote in on this interesting topic.

Stephen R. Miller

http://lawprofessors.typepad.com/land_use/2013/02/follow-up-readers-comments-on-two-hypotheses-on-why-there-are-so-few-new-urbanism-cases.html

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Comments

Another thought on this: Why are we so concerned about the lack of cases? I know they are the standard material in a casebook, but in many regulatory practice areas cases are not the main source of law. We like teaching cases because they illustrate the uses of land use law, but once students start practicing they will be reading codes and trying to figure out what the code language means. (And also they will encounter the mindset of some day to day regulators: what code?) So let's use new urbanism as an opportunity to develop a curriculum that doesn't revolve around cases. I've been trying to do that, and it is a challenge, but a successful new urbanism unit would be a great boon to the teaching world.

Posted by: Catherine LaCroix | Feb 19, 2013 4:16:53 AM

Catherine, I agree with you that the focus on case law in teaching land use is not particularly helpful, and also that we need a way to teach approaches like new urbanism better. I would argue the goal goes beyond new urbanism to include teaching the panoply of economic, social, and political issues that make solid, long-term development difficult. The only really good model I know for that is UrbanPlan, which was created by ULI (see http://www.uli.org/programs/local-programs/urbanplan-for-high-schools-universities/.) In that role-playing scenarios, teams of students compete to proposals to build in a transitional community with all of the difficult issues those of us that practice and teach land use law know well: yuppies, NIMBYs, a housing shelter, historic properties, and oh, making the project "pencil out" with the right mix of residential, commercial, and office. There are two problems with bringing UrbanPlan into the law classroom. First, it doesn't explicitly discuss law. Second, it requires an 8-week commitment, which is too long for law schools. Nonetheless, I do believe it is a model for law schools to consider both for thinking about teaching new urbanism, as well as the role of law in the larger context of development. Stephen

Posted by: Stephen R. Miller | Feb 19, 2013 10:48:01 AM

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