February 08, 2013
Zasloff: Has New Urbanism Killed Land Use Law?
Jonathan Zasloff (UCLA) has a piece on Legal Planet: The Environmental Law and Policy Blog (Berkeley/UCLA) called Has New Urbanism Killed Land Use Law?
My Land Use casebook, like most of them, mentions New Urbanist zoning and planning techniques, but does not dwell on them. In order to teach New Urbanist concepts such as Form-Based Codes, SmartCode, and the Transect, I had to develop my own materials, as well as shamelessly stealing a couple of Powerpoint presentations from a friend who works at Smart Growth America.
What’s the cause of this gap? Is it because land use professors have a thing about Euclidean zoning?
I doubt it. A quick check in the Westlaw “ALLCASES” database yields only one result for the phrase “Form-Based Code” and none of the results for “transect” has anything to do with the New Urbanist land use concept. That means that it is very difficult actually to find cases that reflect aspects of New Urbanism.
One can understand that in several ways, I suppose. You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning. For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with. . . .
Now let me quibble with this a little bit: in Houston--the Unzoned City--we supposedly don't regulate uses either. But it seems we do nothing here but apply for, and fight over, variances, nonconforming uses, and special exceptions, for everything from lot sizes and setbacks to sign code and HP rules. It seems to me that people are going to want incremental exceptions for building form or site requirements at least as commonly, if not more so, than for use designations.
But overall it's a good point. Zasloff concludes that even if we do move to form based codes, we'll still probably need to keep a little zoning around:
[W]hile New Urbanism coding can serve as a replacement for a lot of Euclideanism, it cannot eliminate it entirely — not because we are addicted to Euclidean forms, and not because we are dumb, but because lots of the world is uncertain, and cities will have to grapple with that.
I also find that New Urbanism is hard to teach in a doctrinal land use law class. Zasloff concludes:
If this is right, then land use casebooks will still emphasize Euclidean zoning, because that’s where the disputes are and necessarily will be.
A problem set with form-based codes would be nice, though. Just sayin’.
I know some recent land use casebooks have moved to a problem-based approach, and some of our colleagues have created their own materials for teaching New Urbanism. Students find this stuff interesting, so we should all work towards developing these resources for teaching.
January 22, 2013
Garnett on Redeeming Transect Zoning
NDLS colleague and super-mom Nicole Stelle Garnett (Notre Dame) has recently posted Redeeming Transect Zoning?, 78 Brook. L. Rev. ____ (forthcoming). In it, she continues the skeptical evaluation of New Urbanists as successors to Jane Jacobs' response to bad planning that she set out in her book Ordering the City (2010). This brief article takes a look at actual form-based zoning code reforms gaining currency in U.S. localities. Here's the abstract:
Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andrés Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.
June 26, 2012
TDR Handbook Part II
Just wanted to follow up on Stephen Miller's post about the new TDR Handbook. I've had the privilege of working with co-author (and planning consultant extraordinaire) Rick Pruetz on several TDR projects here in the Southeast. This Handbook is a follow on to Rick's two previous books, Saved by Development and Beyond Takings and Givings. Rick is amazingly knowledgable and very generous with his time and expertise. We just finished helping the City of Milton implement a TDR program as part of their form-based code. I will continue to work with Rick during my year off (which starts Friday!).
Jamie Baker Roskie
June 04, 2012
Pocket neighborhoods, cottage housing, and the dominant suburban form
Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form.
The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache. Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally. Maybe its a conditional use, maybe it's a special use district, a planned unit development. [Insert your local jurisdiction's relief provision here.]
But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach? As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges. And so, I find this particular model of five units intriguing. Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe). This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too. The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.
Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective? One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches. Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here. In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing. For those interested in pursuing this, a review of the codes the Center has compiled is well worth it. These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.
Stephen R. Miller
April 05, 2011
Mixed Use/TOD/New Urbanism/Form-Based Codes "Day"
I'm asking for your help. I've blocked out one day near the end of the semester to focus directly on "modern urban development forms"--i.e., mixed use; transit-oriented development; new urbanism/neotraditional development; form-based codes; etc. The casebook I use has about ten pages on this, and they're good, but I'd like to supplement it with at least one accessible, interesting article that would help introduce the concepts to students. We have been talking about these concepts peripherally throughout the semester, but I'd like to spend one class focusing exclusively on them. I've got lots of great books on these subjects, but I'm looking for an assignable article-length piece; it could be academic or general-interest.
So if you had to pick one article to give to someone as a starting point for learning about the trend toward mixed use and new urbanism, what would it be? I'd love to know what you think. Please leave a comment or email me your recommendations. I'd love to share the recommendations with the blog readers too. Thanks!
February 16, 2011
Garnett on Mixed Land-Use Urban Neighborhoods
Nicole Garnett (Notre Dame) has added to her extensive body of work on land use, order, and quality of life in America's cities (read her book Ordering the City) by posting The People Paradox on SSRN. Here's the abstract:
American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.
February 16, 2011 in Books, Community Design, Comprehensive Plans, Crime, Density, Form-Based Codes, Housing, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism, Zoning | Permalink | Comments (2) | TrackBack
July 02, 2010
Denver's new Form Based Zoning Code
Denver has adopted a brand new zoning code, it's first major revision in over 50 years. The new code is billed as form-based. We've posted before about Denver's process towards this new code. From the Denver Post: Denver Council Passes Overhaul of City's Zoning Laws.
The Denver City Council on Monday unanimously approved an overhaul of the city's zoning laws, making the first comprehensive change to the city's land-use rules since 1956. . . .
The new code would replace one that city planners characterize as inefficient and inflexible. They said the new rules would steer growth and density to areas near transit corridors and support existing development patterns in long-established neighborhoods.
April 08, 2010
Forum: Land Use in the Unzoned City (@ South Texas)
The South Texas College of Law is pleased to invite the public to what promises to be a very interesting forum called Land Use in the Unzoned City: Regulation, Property Rights, and Smart Growth in Houston's Future. From the program:
Houston is the only major city in the U.S. without traditional zoning. What should the government’s role be in regulating land use and development? How should the law and the land intersect? Should Houston stay as it is, adopt zoning, or consider Smart Growth principles to reduce sprawl and protect the environment? Do regulations and policies to promote New Urbanism or transit-oriented development work, and are they right for Houston? Our panelists will offer their perspectives on the future of land use in Houston and across the U.S.
Panelists: David Crossley, President & Founder, Houston Tomorrow Kendall Miller, CEO, Houstonians for Responsible Growth Prof. Asmara Tekle, Texas Southern University Moderator: Prof. Matthew Festa, South Texas College of Law
David Crossley, President & Founder, Houston Tomorrow
Kendall Miller, CEO, Houstonians for Responsible Growth
Prof. Asmara Tekle, Texas Southern University
Moderator: Prof. Matthew Festa, South Texas College of Law
When: Tuesday, April 13, 12:00 noon
Where: South Texas College of Law, 1303 San Jacinto, Downtown Houston, Garrett-Townes Auditorium
The event is being hosted by the student Real Estate Law Society, with co-sponsorship from Houston Tomorrow and Houstonians for Responsible Growth. I'm very much looking forward to it. If you can be in Houston next Tuesday, we'd love to have you attend (did I mention free lunch?). Contact me if you have any questions.
April 8, 2010 in Community Design, Conferences, Density, Development, Form-Based Codes, Houston, Lectures, Local Government, New Urbanism, Planning, Smart Growth, Smartcode, Sprawl, Transportation, Urbanism, Zoning | Permalink | Comments (0) | TrackBack
January 20, 2010
Everybody Must Get Zoned (in Denver)
We've blogged before about land use legal developments in Denver, particularly about its movement toward a comprehensive reform of its zoning code to a form-based code along the lines of what Miami 21 is doing. The proposed new ordinance is online here. Now in the Denver Westword (which appears to be a local alternative weekly) we have this commentary: Everybody must get zoned: Kenny Be looks at Denver's new zoning rules.
The new zoning code is now online and awaits your review. With building restrictions across the city that are all new! The revamped code guarantees that you won't suffer alone, because everybody must get zoned.
The new context-based zoning code completely transforms the planning office into a McZoning service counter. The form-based picture menu clearly shows what can be built and helps the builder/homeowner to select an allowable building (that maintains the existing context of their neighborhood), just by presenting the smiling city planner with an address.
Any Bob Dylan fan like me should be already on board. But go ahead and check out the link, because the article is focused around the cartoons. In the first one, the author/artist analogizes the proposed new zoning regime to a fast food counter and the "menu" above looks a lot like the new urbanist Transect. It also refers to pops and scrapes.
The article pokes fun at the new code and implies some criticism of the form-based code as being overly restrictive and micro-managing of individual property, and too empowering for the bureaucracy. If I'm correct in interpreting the author and the article as coming from a hipster/progressive perspective, it underlines that some of the tensions in land use policy can't be reduced to "cartoon" versions of typical left-right political or cultural splits. But for some really good land use cartoons, check out the article. And listen to some Dylan while you're at it.
Thanks to Megan Currin for the pointer.
November 02, 2009
Election Day: land use issues!
Most of the national attention for Election Day on Tuesday, Nov. 3d, is focused on the horse races in New Jersey, Virginia, and NY-23. But here in Houston and across Texas we have some land use issues both on the ballot and behind the politics.
First, the mayoral race. The generally popular Bill White is term-limited (and has his sights set on the 2010 Senate race). Vying to replace him as chief executive of the nation's fourth-most-populous city are four candidates: Peter Brown, Gene Locke, Roy Morales, and Annise Parker. Morales is a Republican, and the other three are Democrats, but Houston's charter prescribes nonpartisan elections. The three Democrats are leading in the polls, and there will probably be a runoff between the top two.
Land use regulation is a very big issue looming behind the scenes in this election. Houstonians are very much aware that we are the leading Unzoned City in America, and many are calling for stricter development rules, particularly because of a high-profile controversy over the proposed Ashby High Rise (more about Ashby later). The Houston Chronicle editorialized that Guiding Growth will be a Key Issue in the mayoral election, and it also reported recent poll results that Houston Voters want Tough Land Use Laws.
I have read and parsed various statements by the leaders Brown, Locke, and Parker, and this Houston Chronicle story analyzes their stances on land use, and I can't really tell much difference between the three candidates. None of the three is in favor of the "z-word," that is, (Euclidean) zoning, but all three seem to be vaguely in favor of more regulation (while maintaining that they are pro-development), and talk about good-sounding things like "protecting neighborhoods." Candidate Peter Brown is, as I noted the other day, an architect and planner, and is on record advocating form-based codes. But for the most part it's hard to see major differences between the leading candidates; I think they each can fairly be characterized as having a mild "more regulation" stance without a lot of specifics yet. The interesting part will be to watch what the new mayor actually does, or tries to do, to change land use law in the Unzoned City.
The second set of land use issues on the Nov. 3d ballot is in referenda on eleven proposed amendments to the Texas Constitution. Among them are Proposition 9, which will constitutionalize the Texas Open Beaches Act, and Proposition 11, which is an anti-Kelo prohibition on economic development takings. I'll have more on these after they pass; I don't think I'm going out on a limb in predicting that all eleven will pass by large margins.
Are there any land use issues in your state or local elections this year? We'd love to hear in the comments. As they say, vote early and vote often!
UPDATE: Results--Annise Parker 31%, Gene Locke 26%, Peter Brown 23%, and Roy Morales 20%. There will be a runoff between Parker and Locke on Dec. 12. Although it would have been interesting to have architect/planner/form-based code advocate Brown in the runoff, we will still have to see what Parker and Locke say about the hot issues of development and regulation in the Unzoned City
October 31, 2009
Next American City on Smart Growth and Miami 21
Speaking of DPZ, and apropos of the discussion here on the blog about Miami 21 (DPZ is the lead consultant), the Next American City magazine has a piece by Mike Lydon on the very recent passage of the new form-based code by the city council:
While everyone from the Sierra Club to the National Association of Realtors believe compact, mixed-use, walkable development is an antidote to suburban sprawl, “smart growth” doesn’t just happen by itself. Indeed it can’t because most existing municipal zoning regulations make walkable urban form exceedingly difficult, if not impossible to implement. Surprisingly, this is often the case in large cities as much as it is in their sprawling suburbs. Therefore, one of the most effective ways to move smart growth from concept to reality, and at a meaningful scale, is to toss out the very zoning regulations that prevent sustainable growth from happening in the first place. Last week, Miami, Florida became the largest city in America to do so.
Miami will really be worth watching. Lots of other interesting stuff over at Next American City to check out, as well.
October 28, 2009
Austin's Transit-Oriented Development
Molly Scarborough, Senior Planner with the Austin Planning Department, gave a presentation today on Austin's transit-oriented planning at the Houston-Galveston Area Council, as part of Houston Tomorrow's "Livable Houston Initiative." Interestingly, the promo blurb indicated that she would be talking about "efforts that the City of Austin has made to encourage and allow transit-oriented development that have already resulted in substantial development even though their first rail line is not yet operational." That's pretty much the opposite of Houston, which has had an operational light rail line for about five years, but has little TOD to show for it.
150 miles apart, Houston and Austin differ in lots of ways, actually. Houston is the quintessential Texas big metropolis, the Unzoned City, and headquarters of the global energy industry. With the state government, the major research University of Texas, the music scene, and a tech sector, denizens of the state capital prefer to Keep Austin Weird.
Whether Austinites want to be weird or not, Ms. Scarborough reports that they do want mixed-use, walkable urban neighborhoods and TOD (at least to some extent). The city government has done extensive planning for over a decade to try to set the conditions for both urban transit and pedestrian-oriented TOD. Scarborough points to a 2002 regional planning effort through Envision Central Texas as a key event in articulating a vision for transit and urban design. The city has responded with a number of initiatives, including the downtown "Great Streets" program; Station Area Planning for TOD districts; specific neighborhood- and project-oriented programs; and a TOD Ordinance.
Another thing I found interesting from Scarborough's talk was her discussion of the city-wide Design Standards and Mixed Use Ordinance, adopted in 2006. The intent of the ordinance was to encourage citywide the kind of higher-density, mixed-use development envisioned for the TOD districts. It included an opt-in/out provision for neighborhoods. Scarborough indicated that many people think of it as a form-based code, but that she prefers to think of it as a "design code."
Scarborough indicated that the city's "density bonuses" are just beginning to be implemented. These "bonuses" include waivers for single-use zoning requirements; floor-area ratios; density (dwelling units per acre); setbacks; and other land use regulations. In return, the developer receiving the "bonus" is expected to comply with design guidelines and to make certain contributions to sidewalks, landscaping, wastewater management, and other public-area considerations. Affordable housing incentives also seem to be in the mix (although this may be mostly in the TOD ordinance). Scarborough reports that there are concerns from both ends: some citizens complain that the community benefits exacted are too low; while others worry that the scheme itself amounts to a development "tax" that could undermine the goal of the program, which is to promote higher-density vertical mixed use. Writing from the Unzoned City, I wonder if the latter critique has merit-- if the goal is to incentivize mixed use and density, wouldn't the easier solution be to simply remove the traditional zoning regulations that mandate low density and single use? But Scarborough indicated that the "bonuses" were necessary to get the neighborhoods on board . . . which is understandable.
All in all, a very interesting presentation. Austin's TOD and urban design efforts are worth watching.
October 26, 2009
Playa Vista & Spruce Goose
One of my colleagues, Professor William L. "Billy" Want, is a treasure trove of information about land use law and anything related to the environment. Click here for information related to his background and publications. Listed in "Best Lawyers," Professor Want's private practice included projects on behalf of Howard Hughes Properties. During this time, he obtained environmental permitting for a large mixed-use development in Los Angeles, an area known as Playa Vista--property the Wall Street Journal once described as the most valuable undeveloped property in America. As one of the first examples of form-based planning, those studying the recently enacted Miami 21 plan might find comparisons to Playa Vista useful.
For you historic preservation types, Playa Vista is located on the grounds used by the Hughes Aircraft Co. to construct Spruce Goose, a giant flying machine also known as the "Flying Boat" or, as Howard Hughes preferred, the Hercules or H-4. (Ultimately, this gargantuan cargo plane flew for about one mile and never flew again.) Because of the historic significance of Spruce Goose and related projects in aviation research and development, the site is now listed on the National Register of Historic Places. The 274,000 square foot assembly building constructed there to house Spruce Goose is one of the largest wood frame buildings in the world. The architect of this building, Henry L. Gogerty, contributed earlier work to the Hollywood Boulevard Commercial and Entertainment District. Special thanks to Professor Want for sharing with me the Historic Property Survey Report for the Hughes Aircraft Site at Playa Vista.
Will Cook, Charleston School of Law
October 13, 2009
News from Florida
Alan Krischer sends us the following update from Miami:
It's expected to come before the City Commission relatively soon, since outgoing Mayor Manny Diaz wants to have it adopted before his term ends with this November's elections; I believe it will be on their October 22, 2009 meeting, though the agenda is not yet available.
Also, next year, Florida's citizens will vote on a state constitutional amendment to require referenda in land use decisions state-wide. A group of citizens successfully garnered the necessary signatures to put on the ballot a proposal to require that all amendments to local government comprehensive plans be effective only upon a vote of the electorate in that jurisdiction. Under Florida's growth management regulations, all local governments are required to adopt these comprehensive plans, and all zoning and permitting decisions are required to be consistent with them. The proposed amendment, the "Florida Hometown Democracy Amendment" or "Amendment 4," would therefore have the effect of requiring a wide range of land use decisions, both major and minor, to go to a vote. It's another example of efforts to use referenda and other forms of direct democracy in land use decisions, which you've touched on in the blog before - but it's one of the most expansive efforts that I'm aware of.
Also, for those of you who have posted comments, we've got the comment-approval system sorted out now. Please comment away! We appreciate your feedback and additional information on our posts.
October 12, 2009
New Zoning Code for Denver?
Denver is trying to adopt a new zoning code. The bill appears on track to be voted on in city council early next year. It would replace the existing zoning code entirely. Some excerpts from the Denver Business Journal's recent article on the subject:
The Denver City Council took a big step toward establishing a new zoning code for the city at Monday night's council meeting by unanimously passing a schedule for implementing the code. . . .
Peter Park, manager of the city's Community Planning & Development department, pointed out at the council meeting that his department had public meetings last summer about the new code in all the city's council districts, and has met over the last several years with real estate professionals such as architects and developers. The department is overseeing the writing and implementation of the new code. . . .
The updated, context- and form-based code, which is still in draft form, is being designed to support economic growth, a sustainable environment, housing diversity and strong neighborhoods, according to the city. . . .
The proposed new zoning code would replace Denver's existing code. The current code was adopted in 1956, but since then has become a patchwork of incongruous zoning regulations and outdated, according to real estate experts and the city.
The draft of the proposed new zoning code is here: http://www.newcodedenver.org/. I'm not sure exactly what all of the details are and how they differ from the exisiting code, other than the assertion that it is a form-based code, so please comment if you are more familiar with the Denver process. It appears to have grown out of the 2002 Blueprint Denver comprehensive land use and transportation plan.
It is a significant undertaking to adopt an entire new zoning code; one reason many zoning codes get outdated and can't respond to market or public demand for things like new urbanism is that it is much, much harder to rewrite the entire code (and to get it passed) than it is to simply adjust the laws incrementally and to make exception after exception. But over time that means the code will become crowded with incongruities and will continue to enforce an outdated view of the city's preferences. My first visit to Denver was at last spring's Law and Society meeting and I found it to be a delightfully walkable city (the downtown, at least, centered around the 16th Street pedestrian mall). It will be interesting to see how the new zoning code works out.
- Matt Festa