This was an interesting presentation, though somewhat limited in its applicability to Houston. While form-based code is extremely relevant for Houston, most of the panel presenters were focused on understanding the difference between conventional zoning and form-based code, and they spent most of their time talking about the processes and challenges involved in transitioning from conventional to form-based. Because Houston does not use conventional zoning, this is an irrelevant factor.

However, for everyone living outside of Houston, especially in more stringently zoned places like Sugarland, League City, or Galveston, the presentation would have been spot-on.

There were three presenters, and the focus area of their presentations were: the evolution of conventional zoning and form-based code, the differences between conventional zoning and form-based code, the fundamental components of a form-based code, and legal challenges for form-based code.

In the following write-up I’ve included the outline of each speaker’s main point. I’ve also filled in some background in areas where they skimmed.

This is a long one, so I’m going to do something I almost never do….   you’ll have to click “read more” to see the rest.

The rise of conventional zoning and decline of traditional neighborhood development

The earliest forms of zoning existed in the mid 1800′s, however it wasn’t until the 1920′s that zoning codes began to be widespread. Zoning laws began to emerge primarily in an effort to prevent new industrial plants (and the associated noise and smoke) from being constructed adjacent to established residential neighborhoods.

In the 1926 Supreme Court case Amber Realty vs. the Village of Euclid, Ohio the court found that zoning was legal so long as it was not arbitrary (and therefore a violation of due process). This laid the foundation for widespread adoption of zoning ordinances whose principal concern was to prevent the development of industrial facilities in close proximity to non-industrial areas.

In the following 30 years there was a steady incorporation of more and more stringent land-use separation requirements added on to the existing zoning ordinances in most cities around the country. These ordinances became increasingly fixated upon the idea of promoting single-family housing as the preferred, or only allowable residential product.

Many of the neighborhoods built in the 1920′s and early 1930′s are some of the best quality urban places in the US, because they were primarily conceived of and built as ‘additions’ to the existing city. It was therefore considered critical that the new neighborhood contain all the ingredients of daily life – places to live, work, and shop, as well as schools, churches, and parks. However, the professional town-building industry peaked in the late 1920′s, and the industry was nearly completely wiped out during the great depression.

When the post-war boom skyrocketed the demand for new housing 15 years later the simplest way of complying with the ordinances in place was to build tract housing. These large subdivisions were built over hundreds of acres at a time, and contained nothing but houses.

These subdivisions became home to people who no longer had convenient, walkable access to daily needs. The only practical way for these people to participate in daily life was to drive in to the older part of town. This created steadily increasing demand for parking, which was initially in very short supply. Many of the more successful business owners in older towns across the country bought out weaker businesses so that they could tear down their structures and allow customers from the new ‘suburbs’ to park there.

As more and more of the older cities were cleared out to provide parking, traffic congestion and noise increased, negatively impacting the established residential neighborhoods that had been originally built within walking distance of the city core. Frustrated, most of those who were able to afford it bought a car and moved outward.

As the population – especially the wealthy – continued to spread outward, many entrepreneurs began establishing new businesses along major highways oriented toward large parking lots. These new business locations were more convenient than driving all the way into town, and they began to undermine the more established businesses in central cities. Eventually, older businesses began to fail or moved outward themselves.

This resulted in the increasingly dead urban cores that are familiar around the country, and were especially evident in the 1970′s and 1980′s.

Speaker #1 – Bill Spikowski: The difference between conventional zoning and form-based code.

From the 1960′s onward people around the country began to express concern over the decline of central cities and what impact conventional zoning was having on the health of cities. Over time a consensus emerged that the problem with zoning codes was that they were focused on strictly regulating the use of land, and rarely paid any attention to the design of structures.

The original problem that motivated the creation of zoning laws was not the existence of industry, but rather the negative impacts of noise and pollution on nearby areas. If the industrial properties had been able to function without pouring soot down on adjacent properties or creating deafening noise that kept people awake through the night, there wouldn’t have been a problem.

At this point they realized that the issue was not the activities taking place on the lot that created negative impacts so much as the kinds of buildings that were built. In recognition of this, an effort was made to create a new type of development code that would significantly relax or eliminate controls on building uses, and instead regulate building typology. The result is what we now call form-based code.

Spikowski offered these essential distinctions between conventional zoning and form-based code:

1. Conventional zoning is concerned with controlling land uses; form-based code is concerned with regulating street and building typology.
2. Conventional zoning keeps street design, subdivision requirements, and land use controls as three distinctly separate things; in form-based code these are all integrated into a single process.
3. Conventional zoning results in random, unpredictable building placement; form-based code results in orderly building placement.
4. Conventional zoning ignores the relationship between the street and the building (interface); form-based code includes interface standards.
5. Conventional zoning is a very low detail approach; form-based code has more detail – it’s a plan for the proposed future of an area.
6. Conventional zoning codes are almost entirely legal text and can be very hard to understand; form-based code is typically a simple set of illustrated diagrams, tables, and examples, and is intended to be very easy to understand.
7. Form-based code works best as a replacement for conventional zoning rather than a supplement to it.

Speaker #2 – Daniel Parolek: The essential components of form-based code

After Spikowski outlined the critical differences between the conventional zoning approach and a form-based approach, Parolek explained the most critical components of any functional form-based code.

1. The Regulating Plan: This is a replacement for a zoning map. It is created by identifying activity centers and neighborhood types. In developed areas it classifies neighborhoods based on the level of infrastructure and prevailing building type, and in undeveloped areas it proposes future infrastructure investments and appropriate building types based on that infrastructure pattern, (in other words, bigger buildings go where the bigger roads are).
2. Building Form Standards: This should be a series of easy to understand graphics and tables identifying the minimum requirements for buildings in different zones. The most common requirements are building placement, parking placement, and height limits.
3. Public / Civic Space Standards: This is also a set of illustrated standards for the development of parks and public spaces in all kinds of neighborhoods. For instance, this should clarify the kinds of parks that work well and fit in to a small lot, urban context, and differentiate them from the kind of parks that work best in large acreage areas on the edges of town.
4. Thoroughfare Standards: This is a set of standards for the design of streets and thoroughfares throughout all context zones. In other words, a major boulevard downtown will have a different sidewalk requirement from a small residential street. Thoroughfare plans are also focused on maximizing connectivity – both to ensure that the street pattern provides enough routes to diffuse traffic, and to ensure that basic provisions for pedestrians and cyclists are provided as well (like a front door to the building that you can access without going through the parking garage).
5. Administration Standards: In recognition of one of the biggest failures of conventional zoning, form-based zoning is built with a strong focus on simple, fast administrative processes. People whose plans comply with the ordinance should experience very fast, automatic approval.

Speaker #3 – Bob Sitkowski: Legal issues for form-based codes

Sitkowski identified these primary challenges for cities implementing form-based code.

First, look at the comprehensive plan? Does your city even have one (Houston doesn’t). Are its provisions mandatory or advisory? A mandatory comprehensive plan makes things much easier to implement.

Second, be sure that your efforts stay within the rationale of provision of public health, safety, and welfare. The legal precedent is that these can be pretty broad, but your rationale for any kind of ordinance must be clear and cannot be determined to be arbitrary.

He listed three major types of form-based code implementation currently taking place around the country:

• Replacement of previous code: In this case a form-based code completely replaces whatever came before it. Alternatively, form-based code replaces a previous zoning classification and all the land so zoned.
• Optional Implementation: In this case it is used as an alternate code applied citywide and developers can choose whether they want to select the old rules or the new rules on their site.
• Floating Zone: In this case the standards are available to be used by property owner request. When a site is developed according to the floating standards they become permanent for that property.

The big issue with optional and floating implementations is that it requires the administration of two different processes and ordinances simultaneously, and can create a headache for city management. The positive is that these can be implemented in places where a complete code change is politically impossible.

Sitkowski finished by identifying 8 specific legal issues that apply to any development code:

1. It requires enabling legislation at the state level.
2. Federal and state statutes must be kept in mind to avoid conflicts.
3. It’s important to avoid increasing non-conformities.
4. Avoid vagueness, as that will sink an ordinance in court.
5. Understand uniformity – codes cannot be applied in an arbitrary way.
6. Delegate carefully – if an administrator is appointed (such as a City Achitect) to handle the review process, that person must be appointed by the correct body (ie the City Council) that would normally hold the review power.
7. Establish clear processes – it’s important to balance discretion against predictability, again the code cannot be arbitrary
8. Remember that we live in a post-kelo world (referring to the Kelo versus New London Connecticut Supreme Court Case about eminent domain), and public scrutiny of government activity related to land-use is very high right now.

Final Thoughts

Overall I would say the session was very interesting, though as I mentioned in the summary it did not spend much time addressing issues that were central to Houston. We have an entirely different set of challenges in front of us because we do not have land-use zoning. In fact, what we have is essentially a very suburban form-based code. Implementing a new code in Houston is not an issue of convincing people not to worry about land-use controls, it’s an issue of getting them to accept urban form as legal again.