Understanding the Legality, Process, and Contents of Form-Based Codes

Mark L. Gillem, PhD, AIA, AICPAssociate Professor, University of Oregon, Principal, The Urban Collaborative, LLC

Barry I. Gordon, AICPAdjunct Research Associate, University of Oregon

Planner and Chief Operations Officer, The Urban Collaborative, LLC

“Decree Reversed”

With these two words, the U.S. Supreme Court settled the issue of government regulation of private property. Village of Euclid, Ohio, et al. v. Ambler Realty Co., 272 U.S. 365 (1926) overturned the ruling of the U.S. District Court for the Northern District of Ohio and weighed in on the emerging practice of zoning. With the ruling in place, local communities could regulate the uses, heights, and morphologies of private property development. This ability is what allows zoning codes in general, both Euclidean and form-based codes, to exist on a nation-wide basis. While the former have been widely credited with contributing to the detrimental effects of auto-oriented, low-density development, the latter concentrate on shaping the form of the public realm more than the use of private property.

PART IEUCLIDEAN ZONING: UNINTENDED CONSEQUENCES OF A WELL-INTENTIONED IDEAThe Industrial Revolution set in motion obvious conflicts in the use of land not readily apparent in an earlier era. Factories and slaughterhouses, for example, were encroaching on residential zones and impacting livability in a way that many considered detrimental. The Supreme Court recognized this problem, noting “Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.”1 Euclid village leaders had been very concerned about the potential use of a 68-acre vacant parcel of land owned by the Ambler Realty Company and wanted to ensure that any development on that land was consistent with the community’s goals of remaining a village rather than becoming an industrial suburb of Cleveland. To protect the character of the land, in 1922, the local government passed an ordinance that applied to all land in the village and placed on that land development restrictions related to building uses, building areas, and building heights.

1 Associate Justice George Sutherland, Majority Opinion of the U.S. Supreme Court. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). Available from http://www.sjsu.edu/urbanplanning/docs/URBP229Materials/VillageEuclid.pdf. Accessed 15 November 2013.

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Regarding building heights, the ordinance called for three height districts, “In class H-1, buildings are limited to a height of 2 1/2 stories, or 35 feet; in class H- 2, to 4 stories, or 50 feet; in class H-3, to 80 feet. To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc.”2 The Court found the height restrictions reasonable:

“There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. See Welch v. Swasey, 214 U.S. 91, 29 S. Ct. 567; Hadacheck v. Los Angeles, 239 U.S. 394 , 36 S. Ct. 143, Ann. Cas. 1917B, 927; Reinman v. Little Rock, 237 U.S. 171, 35 S. Ct. 511; Cusack Co. v. City of Chicago, 242 U.S. 526, 529 , 530 S., 37 S. Ct. 190, L. R. A. 1918A, 136, App. Cas. 1917C, 594”.3

Regarding building areas, “The uses of Appellee’s (Ambler’s) first six hundred twenty feet of land do not include apartment houses, hotels, churches, schools or other public or semi-public buildings. The use of the next one hundred thirty feet of Appellee’s land includes all the uses excluded in the first six hundred twenty feet, except that the use of the second one hundred thirty feet excludes industries, theatres, banks and shops.”4

Regarding uses, the ordinance was quite specific and stated as follows:

The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-1 is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries, and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds, and recreation buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, telephone exchanges, fire and police stations, restaurants, theaters and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs, and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substations, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks), and distributing

2 See http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=272&invol=365. Accessed 15 November 2013.3 Ibid.4 http://www.casebriefs.com/blog/law/property/property-law-keyed-to-cribbet/introduction-to-the-traditional-land-use-controls/village-of-euclid-v-ambler-realty-co/. Accessed 1 December 2012.

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stations for central store and commercial enterprises; U-5 is further extended to include billboards and advertising signs (if permitted), warehouses, ice and ice cream manufacturing and cold storage plants, bottling works milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning, and dyeing establishments, [272 U.S. 365, 381] blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesroom; U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper, and rag storage, aviation fields, cemeteries, crematories, penal and correctional institutions, insane and feeble-minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-1, U-2, U-3, U-4, or U-5 use. There is a seventh class of uses, which is prohibited altogether.5

This rather extensive list of allowed uses set the stage for what became known as “Euclidean zoning.” Ensuing zoning ordinances enacted around the country focused almost solely on similar and frequently longer and more confusing lists of allowed and disallowed uses on private property. The prioritization of regulating land-use came at the expense of a careful regulating of heights and areas consistent with a vision for a community’s development. In short order, planners developed model codes for communities around the country and standardization of land use patterns became the norm. These model codes resulted in land use and zoning maps that regulated development in a consistent if not overly specific manner.

While the geographic extent of each zone varied by community as a result of natural, cultural, economic, and political circumstances, one end result was a surprisingly consistent morphology across the United States: mixed-use historic urban centers surrounded by low-density, automobile oriented suburbs. Euclidean Zoning thus devolved into single use zoning whereby lines and colors on a zoning map separated even largely compatible uses. Identifiable and segregated districts for shopping, working, and living became the norm. Even areas for living were segregated by type with apartments separated from single-family homes. The Supreme Court had recognized that zoning must be defined locally and vary “…with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.”6 An unfortunate and certainly unintended consequence of Euclid v. Ambler was a hyper focus on separation of land uses.7

A key point to remember is that civic leaders in Euclid, and presumably many of the citizens of the village, wanted to maintain the village character of their home. That was their vision and they crafted a legally defensible zoning code to achieve that vision. Arguably, what is missing from

5 ibid.6 ibid.7 See Charles Haar, Zoning and the American Dream: Promises Still to Keep. Chicago: American Planning Association, 1990.

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most applications of Euclidean zoning today is the implementation of a clear vision for development that goes beyond segregating land uses.

The problems of Euclidean zoning are numerous, have been well documented and have resulted in converting much of America’s landscape into a vast suburb. “In the United States today,” says geographer Richard Harris, “no place seems more familiar than the suburb.”8 It is recognizable because it is so ubiquitous. Over half of America lives in the suburbs.9 J. B. Jackson calls this a national style of spatial organization and claims the proliferation of familiar landscapes is an American tradition. “There are landscapes in America separated by hundreds of miles that resemble one another to a bewildering degree.”10 The landscapes that have resulted after the adoption of Euclidean zoning have several common characteristics:

1. Clearly Segregated. Suburbs are not simply residential enclaves. They include segregated space for all the functions of life: sleeping, working, shopping, and recreating to name just four.11

They must have color-coded land use plans that segregate compatible land uses like offices and retail shops. What results is a landscape that can only be accessed by automobile. Walking from one zone to another is often a hazard since sidewalks are an afterthought in many installations.

2. Auto Focused. Since Euclidean zoning divided development patterns into separated use zones, moving from one zone to another typically involves a car. The days of walking from home to work to a restaurant are long gone. Americans primarily get around in their cars. On average, as of 2013, Americans drive 7,900 miles per capita. For a household of four, that equates to just less than 32,000 miles per year.12 In American suburbs, the average family spews over 33,000 pounds of carbon dioxide into the air. On a per capita basis, Americans drive 30% more than Germans and more than double the miles of the Japanese.13 Since automobile ownership costs roughly $9,122 per car per year, this pattern is expensive.14 From poor air quality to consumptive land use patterns, the auto-focused lifestyle that is in part a result of Euclidean zoning is, according to the EPA, probably a “typical citizens most polluting daily activity.”15

3. Abundantly Paved. As architect Douglas Kelbaugh notes, “Suburbia may be paved with good intentions, but mainly it is paved.”16 In most American cities, over half of the land is given

8 Richard Harris, "Introduction," Special Issue. Journal of Urban History 27 (March 2001).9 See Benjamin R. Barber, Jihad vs. Mcworld (New York: Ballantine Books, 1996)10 J. B. Jackson, Discovering the Vernacular Landscape (New Haven, CT: Yale University Press, 1984).11 For a history of the concept of zoning as it pertains to the U.S. see Jonathan Barnett, Introduction to Urban

Design (New York: Harper and Row, 1982).12 See http://skift.com/2013/08/29/american-driving-levels-drop-as-millennials-turn-to-public-transit/. Accessed 15 November 2013.13 See http://www.fhwa.dot.gov/ohim/onh00/bar4.htm. Accessed 15 November 2013.14 See http://newsroom.aaa.com/2013/04/cost-of-owning-and-operating-vehicle-in-u-s-increases-nearly-two-percent-according-to-aaas-2013-your-driving-costs-study/. Accessed 15 November 2013.15 See http://www.epa.gov/otaq/consumer/05-autos.pdf. Accessed 15 November 2013.16 Doug Kelbaugh, "Into the Abyss," Urban Land, June 1999. p. 49.

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over to roads and parking. For example, Little Rock devotes 61.2% of its area to roads and parking and Milwaukee devotes 54.1%.17 This paving comes with its own operational and environmental costs.

4. Widely Spaced. The need for roads and parking necessarily increases the distance between buildings, making other than automobile trips very difficult. This can be measured in part by an area’s Floor Area Ratio (FAR), which is the amount of building area on a piece of land. An FAR of 1 indicates 1 unit of building area for 1 unit of land. In many American suburbs, the FAR is less than 0.5. By contrast, in Japan, most cities have an FAR of over 2.0. While a 2.0 level FAR requires the use of multi-story buildings, the reality is that average building heights between the U.S. and Japan are not significantly different. Rather, the difference is due in part to higher land coverage with lots in Japan seeing a coverage ratio of 50% to 80%. This is made possible in part by reduced need for land devoted to parking lots and roads as a result of the more mixed pattern of land uses in Japanese towns and cities.

PART IITHE LEGALITY OF ALL ZONINGPartially in response to the problems of Euclidean zoning, the concept of form-based codes emerged in the mid-2000s as a way to codify the designs of New Urbanists and other advocates of more compact development patterns. The book, Form-Based Codes18, appeared in 2008 and the Form Based Code Institute19 began operation in 2004. A form-based code is simply a zoning code based on a desired form. The form comes before the code rather than after, which is the case with Euclidean zoning. Both types of codes rely on the legal ability to regulate the use of private property without a taking to avoid nuisances that can emerge when incompatible development occurs in the absence of a clear vision. The linkages between regulating private property, takings, and nuisances are relevant points to consider.

Regulating Private Property. As is the case with standard zoning codes, form-based codes regulate the use and development of private property. Because form-based codes oftentimes regulate in a more robust way than standard codes, the legality of form-based codes can become a point of debate. But the regulation of private property for the public good is, in fact, a legitimate use of police powers. This debate is not new. In the fledgling United States of America, politicians, academics, and the public debated the concept of private property rights as part of the adoption of the Bill of Rights as far back as 1791. As scholar Harvey Jacobs notes, the concept of private property is anchored in the Fifth Amendment to the Constitution that states, “…nor shall private property be taken for public use, without just compensation.” Jacobs notes that, “With this phrase, the Constitution formally recognized four concepts: the existence of private property, an action denoted as taken, a realm of activity which is public use and a form of

17 See http://oldurbanist.blogspot.com/2011/12/we-are-25-looking-at-street-area.html. Accessed 15 November 2013.18 Parolek, D. G., Parolek, K., & Crawford, P. C. (2008). Form-based codes: A guide for planners, urban designers, municipalities, and developers. Hoboken, N.J: J. Wiley & Sons.19 http://www.formbasedcodes.org/

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payment specified as just compensation.”20

Takings. The issue of takings is pertinent since form-based codes rely on more detailed regulation of private property than typical zoning codes. Form is regulated more heavily than use. This can include building heights, shapes, roof types, fenestration patterns, and entry locations. One might ask whether these more detailed restrictions constitute a taking of private property requiring just compensation under the 5th Amendment. The answer has been a clear no. In fact, building height limits in the Euclid ordnance set the stage for form-based codes. In the Euclid decision, the claimant stated that the value of the land before the zoning restrictions totaled $10,000 per acre and after the restrictions had dropped to $2,500 per acre, with no compensation by the local municipality.21 The Court dismissed this argument in part because Ambler Realty based its claim on pure speculation, which was not seen as a valid case for a takings claim. The conclusion is that reasonable restrictions on private property, including height, use, and area restrictions, are constitutional.

Nuisance. The concept of nuisance is relevant in justifying form-based codes. In the Supreme Court’s 1926 ruling, Justice Sutherland noted, “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” Given the state’s authority to use its police power to address nuisances, this locality distinction is important and gets to the heart of regulating land uses. Pigs, after all, belong in barnyards not in parlors. Likewise, slaughterhouses belong in industrial areas not in residential areas. Who, after all, wants to live next to a rendering plant? Using the justifiable concept of the state’s police power to promulgate regulations for the benefit of public welfare, the segregation of incompatible uses, the limitations of building heights, and the enumeration of building areas are acceptable in municipal zoning ordinances.

Attorney Matthew J. Lawlor, sums up the legal basis for form-based codes as follows:

Not surprisingly, there was initial concern about the consistency of FBCs, as public, regulatory enactments, with the standard state zoning, planning, and subdivision enabling acts that have formed the state law basis for land regulation over the last 75 years. In Wisconsin, Pennsylvania, and California, political conditions were such that changes to state law to remove any ambiguity were possible. At the same time, multiple authors took up the challenge and reviewed the standard enabling acts upon which the land use regulation system relies across the country: the Standard State Zoning Enabling Act and the Standard State Planning Enabling Act. Ultimately, these authors concluded the standard acts had sufficient flexibility in them to validly authorize form-based codes without modification.22

20 H. Jacobs, “Private Property in America: An Ever Evolving Idea.” On Common Ground, V1, N4, 1998, pp. 14-15.21 See http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=272&invol=365. Accessed 16 November 2013.22 Matthew J. Lawlor, “Gaining Ground in the Final Frontier: Surveying Legal Issues Raised by New England’s Form-Based Codes.” The Urban Lawyer vol. 43, No. 3. Summer 2011. pp. 839-848.

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PART III CREATING A FORM-BASED CODE: A COLLABORATIVE CHARRETTE PROCESSOver the last eighty-eight zoning laws have been added, piled and heaped into a complicated web of guidance, restrictions and regulations. Adjunct Professor at Rolling College, Winter Park, Florida and partner with Fishback Dominick, Richard S. Geller, illustrates the complexity and vastness of conventional zoning codes and the difficulty laypeople have in understanding them:

Only those who study and work with such complex provisions—local government staff, as well as private sector land planners, land use attorneys, and traffic and civil engineers—can hope to grasp the details, and not everyone comprehends the overall impact on larger scale planning.23

As a result, clients creating zoning codes or development plans follow a common path across the country. Regardless of whether the client is the federal or state government, a municipality, a developer or an individual landowner, a consultant is hired to develop the code or plan. The consultant may spend some quantity of time with the client and may or may not visit the site. It is even less likely that the consultant would spend time with the current or future population that may be affected by any action(s). Back at their office, consultants ‘create’ model codes.24 Creating conventional zoning through the pilfering of other model codes found throughout the country usually has no contextual understanding of the place or the people.25 In contrast, encouragement of public participation in the creation of form-based codes allows participants to “see” what will happen, resulting in higher comfort levels and provoking fewer negative reactions from the public.26 Hence, the type of practice employed can make the difference between a placeless code and a code created through the graphic representation of actual stakeholders' physical vision of the end state.27, 28

Practice, whether traditional or participatory, involves process as a means to an implementable plan. In this process, the traditional model advocates for the client, whether the work is public or private, large or small scale; and uses a top-down design approach. The top-down design approach is restricted by what Mark Francis calls “the culture of practice”.29 The traditional culture of practice, used by many design professionals in a variety of fields, can be characterized as client serving, exclusive, project-oriented and authoritarian. In an article published in the Journal of Architectural Education, Mary Comerio’s assertions overlap with many of the differences Francis points out between traditional and participatory methods. Participatory methods use a bottom-up procedure, taking the focus off the client and expanding it 23 Richard S. Geller, “The Legality of Form-Based Zoning Codes.” Journal of Land Use, vol. 26, No. 1, Fall 2010. pp. 35-91.24 See http://bettercities.net/article/assessing-criticisms-form-based-codes-19967. Accessed 12 November 2013.25 See http://www.msue.msu.edu. Accessed 12 November 2013.26 Ibid.27 A. Duany Et Al., “Suburban Nation: The Rise of Sprawl and the Decline of the American Dream”. 2000. p 19.28 Emily Talen. “Design by the Rules.” Journal of the American Planning Association, Vol. 75, No. 2, Spring 2009. pp. 144-160.29 Mark Francis. “Proactive Practice: Visionary thought and participatory action in environmental design.” 1999. Places, 12, no. 2: 60-68.

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to include the users. This type of process is problem oriented and inclusive, creating a collaborative process that unites and empowers its participants in a democratic way.30,31

Introducing a collaborative charrette process provides the opportunity for dialogue to create greater stakeholder involvement, develop a stronger plan, and increase the likelihood that a plan will actually be used.32 The consensus building approach to participation is built on the assertion that the following four principles are crucial for a successful outcome:

1. Stakeholder Engagement: The pursuit of participation in planning and design is based on the premise that environments work better and are more readily accepted when user participation is integrated into the process. Stakeholder engagement is evident in the 1926 Euclid v Ambler Supreme Court ruling. Justice Sutherland noted, “Its governing authorities, presumably representing a majority of its inhabitants and voicing their will, have determined, not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines.” Voicing the will of the community signifies that the government engaged the community in order to know its desire. An effective step to broader stakeholder involvement is to invite a variety of groups to take part in the process and to ensure that participation is meaningful. According to Schneekloth and Shibly, “the inclusion or exclusion of peoples and knowledges frame all action by limiting what can be known and who is empowered to make decisions”.33 Raymond Burby notes, “by involving a broad stakeholder group there is increased understanding of the issues for the participants and professionals, stronger plans are developed, and an increase in consensus amongst the group.34

2. On-site: Another principle important to the process is to conduct the collaborative workshop in the local area.35 Goethert recommends two benefits to holding workshops on-site. “(1) it reinforces the bias towards the community; and (2) it allows involvement by other community members normally excluded, i.e., women and children.”36 The cost of overlooking a particular user who, for instance may not be able to participate if the workshop is off-site could completely immobilize a project.37 Schneekloth and Shibley call the on-site space the ‘dialogic space’ and define it as a place “in which hopes, fears, ideas and frustrations about a place and the people who live there are discussed.”38 Additionally, holding workshops on-site may afford the opportunity for participants to feel more comfortable and empowered, which leads back to the first benefit of on-site

30 Ibid.31 Mary Comerio. “Community Design: Idealism and Entrepreneurship”. Journal of Architecture and Planning Research, vol 1, 1984b. pp. 227-243.32 Raymond J. Burby. “Making Plans that Matter”. Journal of the American Planning Association, vol. 69, no. 1 (Winter 2003) p. 33.33 Lynda Schneekloth and Robert G. Shibley. “Placemaking: the art and practice of building communities”. New York: Wiley. 1995.34 Ibid.35 William Peña. “Problem seeking an architectural programming primer.” 4th ed. New York: Wiley. 2001.36 Reinhard Goethert and Hamdi Nabeel. “Making microplans: a community-based process in design and development.” London: Intermediate Technology Publications. 1988.37 John Thomas. “Public participation in public decisions: new skills and strategies for public managers.” 1st ed. San Francisco: Jossey-Bass Publishers. 1995.38 Lynda Schneekloth and Robert G. Shibley. 1995.

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workshops.39

3. Interdisciplinary: Interaction and interdisciplinary work among the participants supports the principle of collaboration. According to Sanoff, people become involved only if they feel they will be affected, therefore limiting the cross section of people, experiences, and knowledge they bring to the table.40 Each person holds their own set of complex needs and values, and until all of the group’s concerns are out on the table, participants will not be group oriented. Moreover, self-interest is a basic human trait that can add contention amidst the group decision-making process. According to Hamdi and Goethert, successful collaboration will “begin with a discovery of common interest and subsequently with inducing a convergence of interests.”41 Additionally, Sanoff maintains that in order to effectively facilitate user-based group decision-making, an atmosphere must be created that… “is clear, communicative, open, and encourages dialogue, debate and collaboration.”42

4. Participatory: Many professionals use planning and design workshops as a platform for participation to gather knowledge through dialogue and consensus.43 There are many advantages to facilitating a workshop atmosphere. For example, Tom Atlee’s defines the concept of collective intelligence as, “[a] shared insight that comes about through the process of group interaction, particularly where the outcome is more insightful and powerful than the sum of individual perspectives.”44 The workshop process Atlee discusses takes its form through group interaction, is problem based and opportunity driven, and is focused on an intentional process that produces decisions, objectives, and recommendations for the shared environment. There are a variety of strategies to developing an effective workshop. For instance, workshops with fewer participants can be held in a single room with everybody participating in the same activities, as opposed to workshops with many participants, where they may have to be broken up into separate rooms for break-out sessions, only later to reconvene and report on their findings to the entire group. Either way, Sanoff believes that dividing the participants into working groups of six to eight participants is optimal. Peña agrees, “increased involvement…causes more conflicting information.”45 Hamdi reinforces the idea of smaller groups, which allows each participant to share their personal ideas and values.”46

PART IVTHE KEY ELEMENTS OF A FORM-BASED CODEA form-based code generally consists of several key elements that can legally replace or augment existing zoning codes. These elements codify the results of the collaborative process and the

39 Henry Sanoff. “Community participation methods in design and planning.” New York: Wiley. 2000.40 Ibid.41 Reinhard Goethert and Hamdi Nabeel. “Making microplans: a community-based process in design and development.” London: Intermediate Technology Publications. 1988.42 Henry Sanoff. 2000.43 Ibid.44 Tom Atlee. “The Tao of democracy: using co-intelligence to create a world that works for all.” Cranston RI: Writers’ Collective. 2003.45 Henry Sanoff. 2000.46 Reinhard Goethert and Hamdi Nabeel. 1998.

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resulting community vision. These elements are: 1) an Illustrative Plan; 2) a Regulating Plan; 3) Building Envelope Standards; 4) Public Space Standards, and 5) Landscape Standards. In addition, administrative procedures (i.e. how to use the code) typically supplement these elements.

Communities have implemented form-based codes in a variety of ways. Some communities have replaced their existing codes altogether with a new form-based code. This requires detailed design at the district level but simplifies the administrative and regulatory process. Other communities have adopted a hybrid approach that combines elements of a form-based code in certain districts with conventional approaches in other districts. These can work as overlay codes applied to existing areas and typically focus on areas in need of redevelopment. Areas of a city that are expected to see little change can operate within the existing, conventional framework. A third approach is to offer up the form-based code as a parallel or optional code. Oftentimes, communities offer incentives to developers who chose to abide by the form-based code. In fact, many developers have expressed a desire to work within the known constraints of form-based codes as a way of reducing risk in the development process.

According to the Form-Based Code Institute, there are significant differences between conventional codes and form-based codes.47

Conventional Planning and Zoning Codes Form-Based CodesAuto-oriented, segregated land use Mixed-use, walkable, compact development Single use zones Reinforces urban hierarchyUse is primary Physical form is primary, use is secondaryReactive to development proposals Proactive community visioningRegulates what isn’t permitted Describes what is required in developmentRegulates to create buildings Regulates to create places

This comparative analysis also illustrates why form-based codes are legal. What both codes regulate is about the same but how they regulate is very different. If communities can regulate for single uses, then they can regulate for mixed uses. If they can regulate for what property owners cannot do, then they can regulate for what they can do. It is for these reasons that many communities, from Miami to Denver to San Antonio, now use form-based codes to guide development. In addition, the Department of Defense adopted form-based codes for all of its installations in 2012 as part of its update to the Unified Facilities Criteria for Installation Master Planning48.

The theory for the code is straightforward. If a community works together to create a vision and an implementing code for an area, then developers who follow that code will likely see reduced opposition to their proposals. With the cumbersome and frequently contradictory nature of 47 See www.formbasedcodes.org for details of this comparative analysis48 http://wbdg.org/ccb/DOD/UFC/ufc_2_100_01.pdf

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conventional codes, risk rises. Because the outcome of the conventional process oftentimes produces places counter to the desires of a community, design review boards intervene to weigh the merits of individual proposals. This adds time and uncertainty to the development process. Form-based codes typically do not rely on the whims of such boards because the code itself is usually clear and consistent with the area’s planning vision.

The Illustrative PlanThe Illustrative Plan graphically depicts one way to achieve the vision that results from the participatory process. Granted, it may be the preferred way, but it is simply an illustration of a desired end state. Other building configurations will likely meet the vision. This plan includes existing and proposed building footprints, streets, sidewalks, and major landscape elements. It is quite helpful in determining an area’s overall capacity at build-out, which can then inform more detailed infrastructure analysis.

The Regulating PlanWhile the Illustrative Plan shows one possible development outcome that is consistent with a community’s vision, the Regulating Plan is a more flexible map that shows only the development aspects required to meet the planning vision for the area. To date, planners use no single format for a Regulating Plan. They may be based on frontage, which assigns a code on the street to parcels facing streets and that code refers to an allowable building type. They may be based on parcels, which assigns building types using a color or pattern coded to each parcel. Or they may be based on a transect which is a concept in the SmartCode that is:

a model transect-based planning and zoning document based on environmental analysis. It addresses all scales of planning, from the region to the community to the block and building. The template is intended for local calibration…. As a form-based code, the SmartCode keeps settlements compact and rural lands open, literally reforming the sprawling patterns of separated-use zoning.49

Because Regulating Plans still address building uses in addition to other criteria, they are like a very detailed zoning map. These other criteria typically include build-to lines, parking locations

Illustrative Plan

49 http://www.smartcodecentral.org. Accessed 1 December 2013

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Regulating Plan

building heights, required entry locations or entry zones, and building types. In addition, the Regulating Plan is keyed to the Building and Public Space standards, which

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simplifies understanding and application of the code. Developers can first look to the Regulating Plan to determine the form requirements for a parcel, then they can refer to the Building and Public Space Standards that apply to their parcel for more detailed requirements. The following are the five main elements of a regulating plan:

1. Build-to Lines. The build-to-lines reverse the concept of setbacks, which typically state a minimum setback from the property line beyond which the building can be located anywhere on the site. These setbacks usually cover all sides of a site. One predictable outcome is that buildings move to the middle of a site to accommodate parking in front and minimum side yard setbacks for egress and fire control purposes. The definition of the public realm by building walls is lost in this pattern. Build-to lines typically force the building to address the public realm by requiring that a certain length or percentage of the façade be located on the build-to-line. In essence, the code requires building to the property line rather than setting back from the line. The visual and functional difference can be significant. Just picture a suburban strip mall with 200-foot setback from the back of the public sidewalk to allow for off-street parking versus a walkable main street with no setback from the sidewalk. The main street buildings in the latter define a safe, walkable public realm. The build-to line can vary based on floor levels, site orientation, adjacent building lines, etc. Build-to-lines also help planners achieve human-scale height-to-width ratios in the range of 1:1 to 1:5. When these ratios exceed 1:5 the definition of the public realm deteriorates and pedestrian accessibility suffers. While defining the location of the build-to-line at the front is essential, rear and sideyard build-to-lines are not nearly as critical in form-based codes since these have limited value in shaping the public realm. With few restrictions outside of code minimums for fire access, form-based codes can actually offer more flexibility for private developers in this area.

2. Parking Locations. Many Regulating Plans outline allowable locations for off-street parking areas. While most form-based codes generally encourage on-street parking, which is dealt with through Public Space Standards, the location of off-street parking in front of buildings is discouraged. This is usually for two reasons. First, to encourage safe access for pedestrians from public sidewalks, form-based codes try to reduce barriers between building entries and sidewalks. Off-street parking lots in front of buildings constitute a significant barrier. Second, with parking lots in front of buildings, the height-to-width ratio normally exceeds the proportions most suitable for pedestrian access. Hence, the Regulating Plan typically outlines off-street parking areas in locations towards the rear of the parcel. Oftentimes, parking locations are kept at least 50 feet from the front build-to-line in order to preserve a zone for buildings along the build-to-line. In some cases, entire parcels may be reserved for district parking that supports a nearby main street corridor or campus development. Public Space Standards typically govern the actual design of off-street parking areas and address issues of low impact development, accessibility, and landscaping.

3. Building Heights. While Building Standards may address heights, planners can also indicate heights on parcels. This is usually shown as a minimum/maximum number to ensure that the appropriate heights occur in the appropriate zones. When the context, for

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example, calls for step-downs, noting the various steps on the Regulating Plan makes the requirements clear.

4. Entry Locations and Entry Zones. In some form-based codes, lines on the Regulating Plan can show required areas and/or locations for entries. Such notations alleviate the problem of blank walls facing the public realm. This information can also occur in the Building Standards

5. Building Types. This is where use comes into consideration. However, rather than focus on land uses, the focus is on building types. The code on the Regulating Plan refers to the appropriate Building Envelope Standard.

Building Envelope Standards The Building Envelope Standard is tied to the Regulating Plan and guides the design of individual buildings. There can be numerous categories standards, each defining the different types of allowable buildings. Examples include: Campus, Industrial, Office, Shops, Flex-Use, Mixed-Use, Single-Family Housing, Multi-Family Housing, and Townhouse standards. Each standard incorporates form-defining characteristics such as acceptable massing, height, fenestration, parking, allowable use options by ground floor and upper floors, and a supplementary notes section.

Building Envelope Standard – Flexible Use

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Public Space StandardsPublic Space Standards cover streets and public rights of ways such as sidewalks as well as public open spaces like plazas, courtyards, and parks. Street standards, for example, graphically demonstrate street design requirements in plan and section, with minimum, maximum and recommended dimensions. There are as many streets categories as there are the types of streets within the bounds of the study area. Examples of public space standard street types include: Multi-way Boulevards, Boulevards, Avenues, Streets/Roads, Drives, Lanes, Ways, and Alleys standards. Each street standard incorporates minimum, maximum and recommended right-of-way widths, verge widths (the distance between the outside sidewalk edge and the inside curb edge) and curb-to-curb width. Defining characteristics assigned to the public spaces are also noted such as sidewalks, planting strips, parking dimensions, and traffic lane widths. Additionally, placement of streets trees, and suggested lane and parking width for the desired street speeds are defined.

Public Space Standard – Street standard with green median

Landscape StandardsAllowable planting lists are typically included with a conventional code. Landscape standards are also included with a form-based code. A detailed landscape summary page including a description of the region’s climate and bioregion, special plant diversity and needs and native

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plants history is incorporated with a robust compendium of tree, shrub, groundcover, herbs, grasses, and invasive species genius and common name. A description of the species, its height and spreading habit, flower, exposure, and proper care needed to thrive are included generally along with an image of the specimen. Additionally, a list of standard uses, color, spacing, and compatible planting community are incorporated.

Landscape Standard – Trees

CONCLUSIONWhile the right to private property is unquestionable in the U.S., the use of that property occurs within a range of limits that local governments can establish. As such, form-based codes, which detail development codes based on a community’s desired form, are a valid form of land use controls. Because they emerge from a consensus-based, participatory process, the disputes, legal actions, and conflicts that are common with conventional codes are usually not significant. Form-based codes are contextually anchored and provide flexibility and certainty in the development process: certainty for the community because the code covers the most important development elements; flexibility for developers because as long as they meet the code minimums, they can build a variety of building types and morphologies that all fall within the code. As more communities recognize the failings of Euclidean zoning, they may abandon their conventional codes and move to form-based codes because these codes actually achieve the original goals of Euclid – placemaking that respects the desires of the community.

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