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.

Matt Festa