Form over Use: Form-Based Codes and the Challenge of Existing Development
Woodward, Katherine A., Notre Dame Law Review
My grandmother spent most of her adult life in Brownsburg, Indiana, a suburb of Indianapolis. When she first moved there in the 1950s, it was a traditional American small town. There was one stoplight at the corner of Main and Green Streets, with a two-block downtown area featuring a bank, a mom and pop drug store with a soda fountain, a movie theater, a restaurant, a bar, and a cafe. Just a few minutes' walk down the sidewalk was the public library. The owners of these downtown businesses lived above their stores in apartments. My grandparents' first house was on O'Dell Street, a residential, tree-lined street within walking distance of the downtown area. Everyone knew everyone, and my mother complained that she couldn't go to the drug store without her parents hearing about it from nosy neighbors.
Over the years, however, more and more cars began crowding the narrow streets, and a one-stoplight town became two, then four. My grandparents moved to a house a mile outside of town, surrounded by cornfields, to get away from the traffic and noise. Eventually, the buildings at Main and Green were razed to make room for expanding streets, and the library was moved to the far end of town. In their place, large shopping centers with huge parking lots were built. No one walked on the sidewalks anymore because everyone needed a car to get where they wanted to be in a practical amount of time. The town began to sprawl out in cookie cutter subdivisions, office parks, and strip malls. For most of my childhood, my grandmother complained about all the "new folks in their ugly houses" and the "endless construction" in town, but was mostly immune to these changes in her little house amidst the cornfields. Then, a farmer nearby sold his lot to a developer who would build another subdivision, and another farmer across the street sold his lot to a church. Sprawl had finally come to her backyard.
Today, on the corner of Main and Green Streets, there is a CVS on one side with a large, and usually empty, parking lot, and a bank on the other with an equally large, empty parking lot. In fact, in Brownsburg's new proposed zoning ordinance, over eleven pages are dedicated to parking standards and requirements alone. (1) The town is dominated by big box retail stores, fast food restaurant chains, and large thoroughfares allowing residents to travel in their cars from home, to work, to school, and to shop. In fact, they cannot get to any of these locations without traveling in their car.
The reason Brownsburg has transformed from the cohesive, community-oriented small town it used to be to the sprawling, commercial, unremarkable place it is now is conventional, or Euclidean, zoning ordinances. By mandating single-use zones, such as residential, commercial, and office, and creating stringent setback, parking, and low-density requirements, conventional zoning incentivizes towns to spread indefinitely, often without a comprehensive plan in mind. (2) This spread then requires amply wide roads to accommodate the amount of resulting traffic, which is unsafe for pedestrians-and daily needs are usually so far away that they are not walkable at any rate--thus, a car-centric, rather than pedestrian-centric, culture results. (3)
If my grandmother were around to see Brownsburg today, she would probably say she liked it better the way it was in the 1950s. And the New Urbanists, proponents of the new zoning alternative called form-based codes, would agree with her. The New Urbanism movement grew "out of widespread dissatisfaction with suburban sprawl," and advocates high density, mixed-use development in place of conventional zoning's low density, single-use pattern. (4) The choice, as New Urbanists see it, is between "either a society of homogenous pieces, isolated from one another in often fortified enclaves, or a society of diverse and memorable neighborhoods, organized into mutually supportive towns, cities, and regions." (5) Their goal is to create pedestrian-friendly communities that mix commercial, residential, and office uses, locating daily needs within a reasonable walking distance and making dependence on automobiles a thing of the past. (6)
In essence, New Urbanists want to recreate the traditional American city and town--the Brownsburg of the 1950s. (7) Form-based codes attempt to produce this result by "controlling physical form, with a lesser focus on land use, through city or county regulations." (8) The primary focus of form-based codes is the design of buildings, rather than their use. Planners using form-based codes are focused on creating a space that is aesthetically pleasing and friendly to pedestrians, designed in accordance with a comprehensive plan including public spaces, tree-lined streets, and narrow roads. (9)
Proponents of form-based codes are enthusiastic and argue that their benefits are almost innumerable. The words of husband and wife team Daniel and Karen Parolek provide a rosy picture:
[C]ity planners are excited to have a regulatory framework that has a clear intent and is easy to understand and administer; developers and builders are enthusiastic about having clear direction from the new regulations and often a streamlined approval process; and residents and elected officials are delighted to see development creating quality places that build upon the unique characteristics of their communities. (10)
Despite this excitement, conventional zoning is firmly entrenched in the existing development of American towns and cities, and a move to form-based codes on a broad scale is not easily achieved.
This Note will argue that form-based codes can better serve the original purposes for which zoning ordinances were created in areas of new development. Form-based codes can create towns that more efficiently control traffic, promote public health and sense of community, and make transportation, public goods, schools, and parks more readily available to residents, just as traditional towns once did. Recreating the traditional town in a nation dominated by suburban sprawl, however, is not an easy task, nor can it be accomplished overnight. Communities that have already been shaped by conventional zoning will find it difficult to convert to a new form-based code regime due to existing use-based permits and regulatory controls, in addition to likely resistance from developers and residents who are used to conventional zoning's approval procedures. Areas of new development provide a blank slate for form-based codes to populate, and will prove a useful tool for creating new communities. Form-based codes cannot be implemented on a wide scale, however, while the effects of conventional zoning--such as big box retail, exclusive automobile usage, wide streets with high-speed traffic, and large subdivisions--remain so deeply embedded in our national fabric. Therefore, the most favorable compromise is to allow form based codes to be implemented gradually in areas of new development, while retaining a form of conventional zoning for those areas that have already been fully developed according to that regulatory scheme. When new development is planned in those areas, a phase-out of sorts can begin whereby the planning commission can either grant a variance or special exception for the planned development area and implement a form-based code regime in that area, or the area can simply be removed from the zoning map and developed accordingly.
Part I of this Note will describe the development and purposes of conventional, or Euclidean, zoning, and will then discuss the myriad of problems created by it--most notably, urban sprawl. Part II will survey the response of New Urbanists to conventional zoning, and present the idea of the Transect and the details of the structure and implementation of form-based codes. Part III will explain how, despite their imperfections and criticisms, form-based codes can better carry out the original purposes of conventional zoning, but will likely be limited only to areas of new development. Part IV will conclude.
I. CONVENTIONAL ZONING AND ITS DISCONTENTS
A. The Advent of Zoning
Conventional zoning, which "regulate[s] land based on how a landowner uses a particular piece of land," (11) originated as an effort to remedy the dismal conditions of cities in the late nineteenth century. (12) Before zoning, the only tools local governments had available to them to protect the health, safety, and welfare of citizens were nuisance laws and building codes. (13) The first comprehensive zoning code was adopted in New York City in 1916. (14) This new code "categorized land uses, created districts appropriate for those categorized uses, and then transposed the districts, or zones, onto a map of the city." (15) It also included height and bulk controls for buildings within the various zones. (16)
One of the aims of the first zoning ordinances was to separate factories from residential areas, (17) which resulted in increased life expectancies and significantly cleaner cities. (18) Emboldened by their success in this regard, planners began separating more than simply "incompatible" land uses from the rest; they implemented a "near universal segregation of each primary land-use type from others," creating cities that had separate areas for residential, commercial, and industrial uses. (19) Many local governments went still further, separating single-family homes from multi-family (apartment) housing. (20)
The constitutionality of this practice was addressed in Village of Euclid v. Ambler Realty Co., (21) when the Supreme Court considered a challenge to an early zoning ordinance alleging that its limitation on uses substantially reduced the value of the plaintiff's property, amounting to a deprivation of property without due process. After holding that the ordinance was a valid exercise of the Village's police power because it had a substantial interest in protecting the public from the harmful effects of industrial sites, (22) the Court addressed what it felt was the real issue: "the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded." (23)
In a move that would shape the course of land use planning for the remainder of the twentieth century, (24) the Court decided that segregation of residential, business, and industrial uses bore "a rational relation to the health and safety of the community" because it protected children from increased traffic and health hazards, made firefighting easier, and prevented the "disorder" that accompanied commercial and industrial areas from infiltrating residential ones. (25) Within residential areas themselves, the Court found that separating single-family homes from apartment housing was also warranted because "very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district." (26) Once several apartment complexes were built in a residential area, the Court concluded, they became a nuisance, and "the residential character of the neighborhood and its desirability as a place of detached residences [were] utterly destroyed." (27)
Though the Court did not give a rousing endorsement to the ordinance, noting that the justifications given for it were merely "sufficiently cogent to preclude us from saying ... that such provisions are clearly arbitrary and unreasonable," (28) the opinion was interpreted as a broad seal of approval for the implementation of what came to be known as "Euclidean" zoning. (29) It is important to note here that in cautiously approving the implementation of use-based zoning, the Court explicitly provided that this method of planning was to be "determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality." (30) Thus, it is clear that the Court anticipated that zoning would provide a way to maintain the character of an already-established community. Indeed, there is evidence that Euclid's own zoning ordinance was designed merely "to protect existing land use patterns and property values." (31) The Court's opinion did not discuss how such restrictions would work when applied to new development." (32) However, cities and towns across the nation immediately began creating single-family residential, commercial, office, and industrial zones, with low-density requirements, minimum lot sizes, and large thoroughfares connecting all of the elements. (33) Euclidean zoning, while originally intended for existing communities, became the norm for new development in the mid to latter half of the twentieth century. (34)
The popularity of Euclidean zoning was encouraged by the creation of the Standard State Zoning Enabling Act (SSZEA). (35) Developed by the Department of Commerce, the SSZEA was a model statute for states to use in drafting zoning-enabling laws, based in large part on the 1916 New York City zoning code. (36) The SSZEA both "expressly and implicitly encouraged a single use regulatory system," (37) in that section one allowed local governments to regulate "the location and use of buildings, structures, and land for trade, industry, residence, or other purposes," (38) while section two provided for the creation of districts that corresponded to each type of use." (39) Neither section provided for the possibility of mixing uses within districts. (40) Section three stated that the purpose of zoning was:
to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. (41)
After its publication in 1924, the SSZEA became very influential, and all fifty states eventually adopted it in some form. (42) The reason for its popularity is evident: local governments desired to achieve the goals articulated by section three of the SSZEA, including promoting the health, safety, and welfare of their citizens by reducing fire hazards and providing more open light and air, and the SSZEA provided a standardized, Department of Commerce-approved method of doing so. (43) Indeed, when viewed in the context of the deplorable conditions existing in most cities in the late nineteenth and early twentieth centuries, (44) single-use zoning was "a logical response to ... [the] problems of that time." (45) Today, zoning remains the dominant method of land planning in the United States. (46)
B. Problems Created by Zoning
Despite zoning's early successes, the past few decades have made clear that strict land use separation is both outdated and inefficient. Technological advances such as modern sewer systems and fire prevention techniques have made the primary reasons for zoning (i.e., stagnant water and sewage in the streets, frequent fires, and other health hazards) largely irrelevant. (47) In fact, justifications for single-use zoning such as preserving residential neighborhoods as a safe place for children, and providing an easier route for firefighters to reach residential areas, are now outdated by the changes zoning itself has created. In regards to the safety of children, subdivisions are frequent targets for burglaries and other crimes, and even roads in residential areas are often wide enough for four lanes of traffic with high speed limits, creating great danger to children and other pedestrians. (48) Similarly, firefighting has not been made easier because of single-use zoning, as communities are now much more spread out with disconnected road networks, making it more difficult and time consuming for firefighters to reach their destination. (49) Zoning itself has wrought fundamental changes in our communities, and although all fifty states did adopt the SSZEA in some form, many have since criticized it as antiquated and have called for major changes. (50)
Another problem with conventional zoning ordinances is that they are inefficient because they are both long and complicated--so much so that "even the most highly trained planner, urban designer, or developer often struggles to ascribe meaning to the principles embedded in these codes." (51) For example, the zoning ordinance in the town of Brownsburg, Indiana, population of only 21,661, (52) is 263 pages long. (53) A typical zoning ordinance includes chapters that describe various use districts (either as a list or a matrix), provides a map of the various use zones, and then describes height, bulk, and density controls, various standards, and definitions of terms. (54) While the 1916 New York City and 1922 Euclid, Ohio ordinances had only a few use zones, modern ordinances can have up to thirty zones, containing not only basic zones for residential, industrial, and commercial uses, but also single-family, duplex, multi-family residential, historical, institutional, and other specialized zones. (55) Brownsburg alone has twenty-three. (56) Use, height, and bulk restrictions can be combined together to control population density by requiring minimum lot sizes, maximum families or units per acre, and yard percentage. (57) Since the main focus is control over land use and density, these ordinances are "largely silent on matters of form beyond the most basic height, floor-area, and setback limits for individual buildings." (58) This silence, in theory, should mean that as long as developers can comply with the multitude of limitations, their projects can be approved no matter what shape the final product takes. To the frustration of developers, planners, and citizens alike, this is often not the case.
Districts are zoned broadly, and in an ideal world, compliant development would occur "as of right" in those districts without interference from local governments. (59) The reality, however, is that "little significant development has occurred or can occur without changing the rules for each individual case." (60) Developers often are afraid to propose a beneficial project for the community because it would require too many variances, (61) or they believe they would not receive discretionary approval. (62) Often, the desirable uses for a site are unclear, and without formal guidelines developers can waste significant time and money on a project that is ultimately rejected as unsuitable for the specified zone. (63) This guessing game produces great costs, to both developers and the community at large, for development that might bring greater character, tourism, or commerce to the area can be rejected based on the Zoning Board's decision that the proposed use, or even the form the proposed use takes, does not comport with the zone in which it would be built.
Conventional zoning's compartmentalization of uses and lack of a clear direction in form also leads to the inefficient result that we know as urban sprawl (64): communities comprised of large, winding residential subdivisions, big box shopping centers, strip malls, office parks, and multi-lane, high-speed thoroughfares. (65) These patterns are the same across America; no town using conventional zoning has a unique character because it requires none. (66) Suburban towns created by conventional zoning are not aesthetically pleasing, and do not have unique identities. (67) Despite the Standard State Zoning Enabling Act's recommendation that "[zoning] regulations shall be made with reasonable consideration ... to the character of the district," (68) and the Supreme Court's directive in Euclid that zoning ordinances be customized "in connection with the circumstances and the locality," (69) Euclidean zoning is merely "proscriptive"--it restricts the kind of development that can take place in a certain area based on what that development will be used for, making sure only that new uses are consistent with existing ones. (70) Unfortunately, whether or not a certain use comports with the uses around it does not bear much of a relation to whether the character of a community is preserved. This lack of concern for the larger picture is one of the main reasons why this form of land use regulation does not produce unique, memorable communities--its "preference for functionalism over beauty" lends itself only to blandness. (71)
Sprawl forces Americans to spend ever more time in their cars traveling from place to place because it is, in most cases, not possible to live within walking distance of daily needs. (72) After reading a conventional ordinance, "one might easily conclude that they are organized, written, and enforced in the name of a single objective: making cars happy." (73) This auto dependence not only creates large amounts of traffic and pollution, but also eliminates the social interaction that might otherwise take place when walking from place to place, (74) contributes to health problems because exercise is no longer a required part of daily life, and causes "tens of thousands" of deaths annually from traffic collisions and other accidents. (75) The sheer size of the communities resulting from sprawl also discourages the use of mass transit. (76) As one New Urbanist put it: "Life once spent enjoying the richness of community has increasingly become life spent alone behind the wheel." (77) Additionally, the large volume of cars requires massive parking lots to accommodate them. The parking lots are usually placed directly along the sides of roadways for easy access, but paradoxically, they are often half-empty because they are built to accommodate the capacity amount of visitors during holiday shopping seasons. (78) These parking requirements take up valuable real estate and create an ever more unfriendly environment for pedestrians, especially at night when suburban commercial centers become deserted.
All of these problems, taken together, mean that American towns no longer have unique identities, vibrant public spaces, or a strategic plan for growth with clear guidelines for development. They simply spread, without regard to creating a unique community. A particularly illuminating way to see the problem is to consider that, under a typical zoning ordinance, "the classic American main street, with its mixed-use buildings right up against the sidewalk, is now illegal." (79) Indeed, the American cities that are the greatest tourist attractions--New York, San Francisco, and smaller cities like Charleston and Nantucket--could not be built under today's zoning codes. (80) Part II of this Note will consider the New Urbanist response to conventional zoning, and the basics of form-based codes.
II. NEW URBANISM, THE TRANSECT, AND THE FORM-BASED CODE
New Urbanists feel strongly that the remedy to the inefficiency and unsustainability of sprawl lies in eliminating the current system of separating uses. The problem with conventional zoning, in their mind, is that "in spite of its regulatory controls, it is not functional: it simply does not efficiently serve society or preserve the environment." (81) New Urbanists advocate what is called "smart growth" in place of conventional zoning's unruly sprawl. Smart growth has been defined as:
[U]sing comprehensive planning to guide, design, develop, revitalize and build communities for all that have a unique sense of community and place; preserve and enhance valuable natural and cultural resources, equitably distribute the costs and benefits of development, expand the range of transportation, employment and housing choices in a fiscally responsive manner; value long-range, regional considerations of sustainability over short term incremental geographically isolated actions; and promote public health and healthy communities. Compact, transit accessible, pedestrian-oriented, mixed use development patterns and land reuse epitomize the applications of the principles of smart growth. (82)
By creating pedestrian-friendly communities that mix uses instead of separating them, New Urbanists argue, we can control the pace of sprawl and recreate the traditional towns of old. (83) New Urbanists identify several principles of traditional towns that they desire to emulate through smart growth: a clear center, where common activities are located and the uniqueness and vibrancy of the community is on display; a five-minute walk for residents to reach daily needs, including living, working, shopping, and eating; a street network with small blocks, providing both pedestrians and drivers with varying choices to get to their destinations; narrow, versatile streets that both slow down traffic and create a friendly environment for pedestrians; mixed use as a result of a comprehensive plan with deliberately detailed form requirements, including the size of the building and its setback from the street; and special sites for special buildings, such as city halls, churches, schools, or other civic buildings. These buildings are meant to display the character of the community, and are given a place of prominence. (84)
New Urbanists posit that adhering to these principles of planning will create a public realm that is both functional and attractive. Their goal, summed up succinctly, is this: "compact, walkable urban areas with mixed uses that re-invigorate the public realm; lessen reliance on auto use; enable public transit; and socially, culturally, and economically integrate regions." (85)
The New Urbanist focus on form over use is not a new development; rather, it is a return to the kind of planning that has been used since ancient times. Conventional zoning, with its exclusive regulation of uses, is actually an anomaly in the history of urban planning. (86) Historically, "urban codes imposed order and uniformity to protect public health and safety and property values, and at times to provide social control." (87) Planned towns and cities tended to use "interconnected patterns for street and block design." (88) This kind of planning has been in use since at least the fourth century BC, when the Ancient Greeks passed laws regulating the size of streets and mandating that every town contain an agora, or public square. (89) Roman architects designed standardized, interconnected street networks. (90) Renaissance designers in the sixteenth century focused their city planning efforts on the form of buildings and their fit within the overall context of the surrounding area. (91) Amsterdam was redesigned in the seventeenth century according to a comprehensive plan, which created the city's famous canal system and established specified locations and construction rules for streets, public buildings, and residential areas. (92) In the United States, mandatory design rules were also common early on. Philadelphia was designed in the seventeenth century with "four quadrants of gridded, tree-lined streets, public squares, and a commercial center at a harbor on the Delaware River." (93) The city of Savannah, Georgia was designed in the eighteenth century according to a plan that dictated the sizes of streets, lots, and buildings. (94) Notably, it was common throughout European history to restrict new development from spreading into undeveloped areas. (95) New Urbanists aim to follow the lead of these historic planning methods.
The main way New Urbanists propose to achieve their goals is through the concept of the "Transect," and within it, the form-based code.
A. The Transect
The Transect is a new kind of zoning code that creates a range of human environments on a continuum from most rural or natural to most urban. (96) These new zones, in order, are: Natural, Rural, Sub-Urban, General Urban, Urban Center, Urban Core, and the Special Districts. (97) Each environment has its own section, with specified building types that fit in that environment. The Transect positions each building type or form in its correct place within the larger context of the continuum, rather than focusing on each individual structure's use. (98) Figure 1, from New Urbanist planning firm Duany Plater-Zyberk & Co.'s SmartCode, illustrates the concept of the Transect:
[FIGURE 1 OMITTED] (99)
Transect zoning, New Urbanists argue, remedies the suburban conventional zoning problems of the "urbanizing of the rural"--that is, office towers and other urban-style buildings in an otherwise natural environment--and the "ruralizing of the urban"--empty, mostly unused space (like parking lots and strip malls) in urban areas. (100) The idea is that the form a building takes, no matter how perfect on its own, may be inappropriate when placed in the incorrect environment--as one author has suggested, it would be like wearing a perfectly made tuxedo to a square dance. (101) Thus, office towers should not be located in a Sub-Urban Zone with residential subdivisions, but rather should be located in the Urban Center (two to five story buildings) or Urban Core Zones (up to eight stories), where their form is more consistent with their surroundings. (102) Houses with large front yards belong in the Sub-Urban zone, but not in the General Urban Zone, where the "build-to" lines are much closer to the street. (103) Wide streets and open parks belong in the Rural and Sub-Urban Zones, while multi-story buildings and public squares belong in the General Urban, Urban Center, and Urban Core Zones. (104) Forms that require large amounts of space, such as commercial big box stores and shopping malls with their attendant large parking lots, should be located in the Special Districts outside the urban areas. (105)
These separations of form, and the continuum from rural to urban, make sense in the abstract, but under conventional zoning codes they have been completely ignored and made impossible by use separation, combined with low-density requirements, mandatory setbacks, and required amounts of parking per square foot. (106) The Transect seeks to reorganize the way development and uses are regulated. It does not completely eliminate separation of uses; rather, it diminishes their importance by creating a matrix of "building functions" that fit within a specified zone on the continuum. (107) This allows for a range of uses within a certain zone, so long as the development complies with the form requirements of that zone. (108) Noxious uses, such as heavy industrial, manufacturing, and airports, are still separated under the Transect because they do not belong in Urban or Sub-Urban areas. (109) The Transect's continuum also widens the design options developers have available to them, "whether it be single use, low density, semi-rural development or a mixed-use, high density, urban development, regulating always by where that type of development is appropriate within the rural-to-urban environment." (110) In contrast to conventional codes, where developers can only create buildings meant to serve one use, the Transect allows developers to create multi-use buildings in accordance with the form requirements of the various zones, and allows them the flexibility to craft according to their individual needs and styles. (111) This is where form-based codes become important.
B. The Form-Based Code
Form-based codes are the tool planners use to create the Transect's continuum. They are defined as "[a] method of regulating development to achieve a specific urban form" that aims to "create a predictable public realm primarily by controlling physical form, with a lesser focus on land use, through city or county regulations." (112) Unlike conventional zoning ordinances, which are described as "proscriptive" or merely preventing certain development in certain areas, New Urbanists posit that form-based codes are "prescriptive" in that they are