Is Form Based Code an Efficacious Tool For Shaping Modern Civic Life ? Lolita Buckner Inniss

1. Is Form Based Code an Efficacious Tool For Shaping Modern Civic Life ? Lolita Buckner Inniss Cleveland State University Cleveland-Marshall College of Law linniss@law.csuohio.edu Professor Lolita Buckner Inniss

2. Overview • I offer a critique of New Urbanism in general and form-based code in particular as a tool of New Urbanism • Form-based code touted as being more flexible than zoning and as method to overcome some of the acknowledged ills of zoning such as physical decay, segregation, and economic downturns • My argument: Form-based code may not be the panacea that proponents claim because: • It tries to do by design what was originally spontaneous • New Urbanism, which is at the heart of form-based code schemes is a contested notion • Reliance on “community” involvement may leave out many members of the community Professor Lolita Buckner Inniss

3. Economic Impetus of City Formation • Cities not originally created to be social or political communities; instead were formed in response to market forces • Most cities built around ports that supported commerce • Only the wealthiest persons lived in cities until the late 19th century • Urbanization built around an ideological and cultural paradigm called “privatism” where focus was on accretion of individual wealth Professor Lolita Buckner Inniss

4. Before Zoning, Private Land Use Agreements and Nuisance Law Governed Land Use • Members of the urban owner class relied on servitudes—private agreements regarding use of land, most common of which are • Easements or rights of way • Real covenants—promises regarding use of land included in deeds (aka “deed restrictions”)‏ • Nuisance law—allows lawsuits for one persons use of his land so as to harm another Professor Lolita Buckner Inniss

5. Some Problems of Private Land Use Agreements and Nuisance Law • Private agreements did not always exist before a problem arose • Nuisance law, though it could be applied in the absence of an existing agreement between the parties, required that the objectionable land use unreasonable interfere with a landowners use and enjoyment. • This was a matter of facts and objective standards---differing aesthetic tastes • Only addressed annoyances from nearby landowners—did not address actions by those who frequented as area • Hard to predict when landowners themselves would be subject to such a suit Professor Lolita Buckner Inniss

6. Rise of Zoning Codes • Arose to address the ills of the urban environment in the U.S. Between 1850 and the beginning of the 19th century. Some of the reasons: • Period of tremendous growth • Pollution, crowding • Seismic social change—class mobility: has been called both the beginning of and the end of the American way of life • Explicit, legislated urban planning was a way to mediate physical problems and class conflict Professor Lolita Buckner Inniss

7. Garden Cities Movement: Bringing European Land Use Mechanisms to the U.S. • Developed by English social reformer Ebenezer Howard, said to have served as the ideological roots of zoning and planning • Howard proposed to improve the lives of Londoners by resettling them outside London in single family house communities characterized by strict segregation of uses and permanent green spaces • Eliminated private ownership Professor Lolita Buckner Inniss

8. City Beautiful Movement • U.S. Movement based on Howard's Garden Cities. • Promoted by the wealthy • Adopted some of Howard's ideas especially the preference for segregation of uses and single family homes Professor Lolita Buckner Inniss

9. Enshrining Zoning: Euclid v. Ambler Realty • Euclid v. Ambler Realty—1926 case pitted a Cleveland-area land developer against the city of Euclid which rezoned property that the developed had owned such that most of it was useable only for residential purposes and not for the industry that Ambler had hoped for. • Argument: zoning is a taking under the 5th and 14th Amts. • Held: Zoning is a legitimate exercise of the police power and unless such regulation are arbitrary and unreasonable with no connection to standard police power goals, it is NOT a taking. Professor Lolita Buckner Inniss

10. Post-Zoning Challenges • Depopulation of older cities—decay, rust belt phenomena and aging baby-boomers • Parallel growth of sun-belt cities and beckoning regions of economic prosperity • Work places and retail spaced far from residential areas • Increasing economic and racial segregation Professor Lolita Buckner Inniss

11. Form Based Code—What is It? • Part of a broad movement in planning theory that emphasizes • Collaboration between government and citizens • Regulating plan that is design based rather than use based • Prescriptive rather than proscriptive or descriptive • Strong attention to the details • Implemented in 3 ways • Mandatory--compliance is required. The form-based code can be adopted as a new zoning district or as an overlay district. Petaluma, CA • Optional--serves as an alternative to, but doesn't replace, a present zoning ordinance. Compliance is voluntary. The developer has the choice of complying with the form-based code or the zoning ordinance, but it must be one or the other. Pass Christian, Miss. • Floating Zone Codes--does not contain a regulating plan but includes instructions and standards for developers to follow when they prepare a regulating plan for their property; then supplants traditional zoning Dade County, FL. Professor Lolita Buckner Inniss

12. Problems of Form-Based Codes • Based on traditional “Urbanism” said to be the “New Urbanism”--multiple strands in this tradition • Seeks to re-create by design what was spontaneous • New Urbanist vision does not necessarily address the ways that most people want to live now Professor Lolita Buckner Inniss

13. Which Urbanism? • Urbanism is mix of multiple often competing “cultures” • Some call for attention to built environment on a micro scale • Some look at macro-developmental approaches • Some focus on exurbs and the areas outside of cities • Some more ecologically focused Professor Lolita Buckner Inniss

14. Accidental Urbansim • Traditional form of the city created as by-product of wealth-seeking monied classes • New Urbansim trades on the accident of city development and tries to make it manifest via stylized planning • The past is appropriated to justify what is in fact a very new endeavor Professor Lolita Buckner Inniss

15. Is New Urbanism the Way People Want to Live? • Typical assertion by New Urbanists is that most people want to live by the movement's dictates. • It is not clear that inhabitants of city, suburbs, or country have any particular single vision for how to live. • Assertions made about a desire for “community” and the “traditional values” of the city, but we are all remembering different pasts • “Well-founded” cities were often exclusionary and reserved benefits for the most wealthy and well-connected. Professor Lolita Buckner Inniss

16. The Charrette—Replicating Existing Power Dynamics? • Hallmark of form-based codes, involves collaboration between planners and the community • “Community” is a variable concept • Economic, social, political elites often wield the most power in such processes Professor Lolita Buckner Inniss

17. Form-Based Code and Charette as “Responsibilitization” • Government-inspired imposition of autonomy on those who previously lacked autonomy • Allows government to distance itself, abdicate responsibility while still retaining control • Makes claims of deregulation and privitization without all of the tools of of the free free market Professor Lolita Buckner Inniss

18. Conclusion • Form-based code is not “unplanning” or “unzoning” • Form-based code is alternate planning and zoning by people who may not be accountable and who may not represent all members of a community • Models to address the design of today's city are most likely to be found somewhere between private land use models and traditional zoning schemes • Key is to honestly assess the goals of any particular neighborhood from the grounds up and to accept the ad hoc nature of the process Professor Lolita Buckner Inniss