Saturday, February 9, 2013

Two hypotheses on why there are so few form-based code cases

I enjoyed reading Jonathan Zasloff’s post on new urbanism and also Matt Festa’s response.  It turns out that, this semester, my clinic is advising a jurisdiction here in Idaho that is considering implementation of form-based codes.  My students and I have been digging under every rock to try to find cases involving form-based codes, but have found very little.  Reading that other professors have unearthed very little is re-assuring!  In this research, however, I have developed two hypotheses for why I believe there are so few form-based code cases (note:  Zasloff said "new urbanism," but I use the term "form-based codes" because I believe it is broader, and inclusive of other movements that I find more powerful, such as those of the architect Christopher Alexander).

First, I’d posit that jurisdictions where it is believed that form-based codes would be controversial have opted to make them optional, instead offering them as an alternative to traditional Euclidean zoning schemes for the adventurous developer.  If something is simply an option, it is very unlikely to lead to appellate litigation that would result in a reported case.  For an example, see Dallas’ optional form-based codes.  That does not mean there are not potential legal issues with form-based codes; rather, it means there isn’t enough skin in the game for it to matter yet.

Second, another sub-set of form-based codes are emerging for larger projects that have the implicit approval of the developer in the codes' design.  A great example of this is the Treasure Island project in San Francisco Bay.  The single (yes, massive) development project is guided by an enormous 362-page form-based code document called Design for Development, but the San Francisco Planning Code, the city's Euclidean zoning bible, has just a few pages on what this project will entail and instead mostly incorporates the Design for Development standards.  Because the developers are essentially the ones creating these form-based codes as a way of getting a type of “pre-project approval,” as I see it, they obviously are not going to be suing over form-based codes they helped to draft.

I’d be curious to hear whether these hypotheses ring true to any others that have researched this area.

In the research conducted by our clinic, it appears there are also about five decent law review articles (in my humble opinion) hypothetically analyzing legal problems that may arise from form-based zoning.  If anyone wants my picks, I’m happy to send them along.

Stephen R. Miller

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