Monday, March 21, 2016

Zoning’s Centennial, Part 11: Designing Density: A Series by John R. Nolon

Part 11

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


Designing Density


In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable neighborhoods.

When zoning was first adopted a century ago, little attention was paid to design. The focus was on separating incompatible uses and rigidly defining building heights, setbacks, and lot coverage: the ingredients of sameness, often the antithesis of livability. Gradually, over the years, communities addressed this issue by creating Architectural Boards of Review, Landmarks Commissions, Historic District Commissions, and adopting design review standards for individual buildings, whether new, landmarked, or historic. Over time, these initiatives have been supplemented by adopting standards contained in the U.S. Green Building Council’s LEED-Neighborhood Development rating system and by incorporating into zoning the Congress for the New Urbanism’s form-based codes approach to urban design control.

The law in many states expressly supplements traditional zoning by authorizing localities to create boards and commissions and design standards that are either advisory or regulatory. Such locally created commissions and boards can issue certificates of consistency to rehabilitate landmarks or build in historic neighborhoods. Similarly, these laws authorize the creation of Architectural Review Boards (ARBs), and the adoption of design guidelines for all buildings within the community, enforced either by the ARB or, with the ARB’s advice, by the local Planning Commission. In the latter case, the Planning Commission is authorized to require design features in all development it approves through subdivision or site plan review or the issuance of special permits.  

The idea is to ensure that individual buildings are consistent with the historic fabric of the locality or are architecturally compatible with the neighborhood. These techniques are not Euclidian Zoning, but rather constitute an attempt to mitigate the designs wrought by use separation and area and bulk requirements that are traditionally applied uniformly in zoning districts.

Two relatively recent land use innovations have evolved organically to breathe better design into zoning at the neighborhood scale: the voluntary LEED-Neighborhood Development rating system, promulgated by the U.S. Green Building Council, and form-based codes, developed by the Congress for New Urbanism and the Form-Based Codes Institute.  

The LEED-ND rating system was developed by the USGBC in response to criticism of its New Construction rating system, which could result in Platinum or Gold rated buildings located in agricultural zones or environmentally sensitive areas. These buildings, while internally sustainable, are decidedly not consistent with larger principles of sustainability that emphasize environmental conservation and the reduction of automobile use and vehicle miles travelled. Here, place matters, and LEED-ND contains prerequisites and criteria that require rated buildings to be sustainability located as well as built.

Local governments have begun to incorporate LEED-ND standards in their zoning and land use regulations. See, for example, the Technical Guidance Manual for local governments developed by the Land Use Law Center for the USGBC. This document includes a step-by-step process for incorporating sustainable neighborhood standards into the local comprehensive plan, zoning, land use regulations, approval processes, and capital budgets.  

Finally, form-based codes are beginning to catch on, especially in urban neighborhoods. The unique aspect of such codes is that they deemphasize use, bulk, and area requirements, substituting for them actual physical designs, adopted as code, that govern development. Diagrams and illustrations become regulations and govern building styles, details, and materials that are permitted, as well as the ways in which they can be incorporated into specific building elements. These regulations reach into the public realm and present in graphic form the width and dimensions of streets, sidewalks, paths, street trees, furniture, and more.

To zoning’s credit, design standards fit into the Standard Zoning Enabling Act, its focus on the appropriate use of the land and the processes it uses to review and approve specific buildings. We are unaware of any case that has successfully challenged as ultra vires the incorporation of LEED-ND standards or the precepts of form-based codes in to local law. And, since historic, landmark, and architectural guidelines are often authorized by discrete state laws, the power of local governments to design density is clear, and is becoming an important aspect of sustainable development.

For more information, see the U.S. Green Building Council’s Technical Guidance Manual for Sustainable Neighborhoods (developed by the Pace Land Use Law Center), and the website of the Form-Based Codes Institute.

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning  

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

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