On September 17, 1787, some of the brightest men of the time were gathered in Philadelphia, PA for the purpose of signing and ratifying one of the most important documents ever to be written in the history of the world – The Constitution of the United States of America. The Constitution established a government unlike any other. This newly founded government would give its citizens unprecedented ability to choose. This freedom of choice is something that contributes to what makes the United States so great. We are able to choose where we want to live, work, and play. We choose our leaders without the threat of war over who will lead. We are able to choose from a plethora of different goods and services that are available in a free market economy. Choice is good!

The Constitution also gives United States citizens private property rights that very few in other parts of the world today have the opportunity to enjoy. These property rights are protected and cannot be interfered with by government without “just compensation” as is stated in the 5th Amendment.

These two rights, as established by the Constitution, have helped to create a real estate market in the United States that is responsible for a large portion of this nation’s economy. We have even seen recently how the decision makers in this country have made tremendous efforts to protect the real estate market in order to keep the national economy moving during times of recession. Real estate is an economic engine that is second to none in the United States, and it is due in large part to our property rights as established by the Constitution.

Our system isn’t perfect though. With the freedom of choice comes the freedom to make bad choices. When bad choices are made they can often inhibit the ability to make better choices. What if on your next trip to the grocery store to purchase some toothpaste you found that you only had a single brand option to choose from? When you ask the store manager where all of the other choices are he informs you that this single choice is all the market will allow. What if the next time you ordered a pizza they delivered it to you with the ingredients separated individually from each other, rather than in its combined form. When you ask the delivery person why your pepperoni isn’t together with the sauce, cheese, or crust you are told that these items are not allowed to be combined together anymore. They have to now be eaten separately.

These examples illustrate the current state of our real estate market due to the manner in which zoning has evolved. Euclidean zoning separates incompatible land uses for the intended purpose of protecting conjoining land users. What it has become is not what it was intended to be. Current zoning practices now limit market choice and push different, yet compatible uses away from each other creating a physical environment that neither works nor is wanted.

How Did We Get Here?

When then Secretary of Commerce, Herbert Hoover, initiated the Standard State Zoning Enabling Act in 1924 the intent was to bring structure and order to the world of planning. The Standard State Enabling Act sought to reduce density, prevent the overcrowding of land, and avoid the undue concentration of people. This was accomplished, in part, through the recommendation by Secretary Hoover for the states to formally adopt the Enabling Acts which included the establishment of zoning as a planning tool for development.

From its inception zoning had three intended purposes. First, it would divide a community into “zones” separating the different areas based on their intended use. The uses have typically been defined as housing (residential), business or retail (commercial), manufacturing (industrial), and farming (agriculture). The “zones” would keep incompatible uses separated from each other with the intent of protecting the health, safety, and general welfare of the public based on the police power as established by the 5th and 14th amendments of the United States Constitution.

Second, zoning would deal with the amount of use that a particular “zone” would be allowed to experience. Once a particular use was established a limit of that use would need to be determined, mainly to prevent the overcrowding of a given area with the same use. This was a lesson learned through the overcrowding of tenements in New York City during the late 1800’s and early 1900’s. Overcrowding led to many deaths through disease and fire. Intensity is controlled through the use of dwelling units per acre (DUA) for residential zones, and floor area ratios (FAR) for commercial zones.

Third, zoning addressed the issue of how much of the land in the zone could be used. To prevent the overbuilding of land parcels, measurements of volume were instituted. These measurements would establish where development could occur on a particular parcel through the use of setback requirements, and how high development could go through height restrictions.

While zoning began being used in the United States prior to the Standard State Zoning Enabling Act it gained credibility through the compilation and distribution of the Enabling Act by the United States Department of Commerce. Zoning’s test for legitimacy would come shortly thereafter in 1926 in the Supreme Court’s ruling in the Ambler v. Euclid case. When Ambler Realty challenged the City of Euclid, Ohio on the use of zoning it was challenging the use of zoning as a constitutional use of the police power. With the Supreme Court’s ruling in favor of Euclid and the use of the police power, zoning now had legitimacy. In the majority decision that was handed down by the Supreme Court, Justice Sutherland wrote:

Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed…which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities… The exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are…aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of stores, shops, and factories.

Since the end of World War II a great deal has changed in the way development occurs, and the way the planning profession chooses to deal with it. With the onset of the automobile, development patterns have adapted in a way that now caters to the automobile. These patterns which once seemed to be built around convenience have lead to an ugly downside that very few might have expected in the beginning. The small town atmosphere from the early 20th century has all but disappeared.

Starting in the 1960’s, voices began to speak of the need for change. The once “superior” suburbia began to have its critics. Planning and development centered on the automobile has proven to be detrimental in nature. Conventional Suburban Development (CSD) began to be directly linked to the undesirable effect known as sprawl. The question is whether the country had traveled too far down the road (with commitments too great) to make the necessary changes that could possibly overcome some of the effects of sprawl.

In 1981 a landowner in Florida enlisted the services of a Miami-based architectural firm to do some planning and architectural work on an 80 acre parcel of ground. That development, which we now know as Seaside, Florida, contributed to the beginnings of a movement that has now found a place in the world of urban planning, urban design, and architecture. A choice counter to that of CSD has proven itself to be successful on many fronts, while giving consumers a new way of living in direct contrast to its counterpart. New Urbanism is being recognized by developers, consumers, and government entities across not only the United States but throughout the world.

What Is New Urbanism?

New Urbanism is a movement dedicated to the advancement of specific principles that serve to ensure that we build places which make our society stronger, protect our environment, and make economic sense. As outlined in the Charter of the New Urbanism its goals (in part) are in developing communities with mixed housing types, mixed-use, appropriate allocation of density, interconnected streets making the community more walkable, and an identifiable center and edge. New Urbanism works to put “unity” back into community. By bringing things closer together, placing the relevant level of emphasis on the automobile, and having things within an easy walking distance of each other, the community as a whole benefits from social interaction that occurs more frequently in part through spontaneous encounters and simple day-to-day activities. New Urbanism communities try to support a better way of life through its elements of design. Some of the characteristics of New Urbanism include:

Walkability – A New Urbanist community is designed with the intention of putting a majority of a household’s needs within a five minutes walking distance of home. By doing so the reliance on cars is decreased, in theory saving the homeowner the expense of needing a 2nd vehicle. (It is estimated that it costs the average American household up to $8,500 per year to operate a car.) Placing more emphasis on the walkability of a community also takes away an otherwise over emphasis on the automobile, giving more control back to the pedestrian. Studies show that if a community is more pedestrian friendly, individuals are more apt to choose walking as a method of get around. Through more conscious design placing the needs of the pedestrian first and closer proximities to every day needs, walkability is the result.

Mixed housing – Along with a mixture of uses also comes a mixture of housing types. Different sizes, styles, types, and prices should be located within a much closer proximity of each other. While most subdivisions being constructed today work under the pretense that separation of housing types is best to help insure a neighborhood’s property values, this often leads to a much less diverse community. The separation of housing types and sizes homogenizes particular areas, making them far less interesting then they might have been otherwise.

Mixed-use – a mixture of property types developed together simultaneously. Everything from apartments to office space, commercial shops to residential. This is in direct contrast to today’s use of Euclidean zoning used by most municipalities across the United States, that separates and isolates land uses by type and density.
When zoning was first used back in the 1920’s, the original intention was to separate non-conforming land uses from each other to protect the health, safety, and well being of the public at large. As times have changed the beliefs about zoning have questioned why different zoning types are always incompatible, and therefore should never be mixed. By mixing certain types of uses, communities can become more pedestrian friendly and alleviate a degree of car traffic. Mixing certain residential and commercial uses together within the same buildings can actually lead to a more vibrant and self sustaining community.

Appropriate allocation of density – With a mixture of housing types, densities can appropriately increase making all properties more affordable. While density might be viewed as a bad word by some, it is actually a strong proponent of affordability, as well as being environmentally friendly through the safeguarding of land as a valuable resource.

Quality of life – The feeling is that overall lifestyle is enhanced as neighbors become friends and community is developed as individuals interact more while lifestyle is simplified. This is more of a residual effect from the implementation of the previously mentioned features. By taking these principles and designs which were used in abundance throughout the United States prior to World War II the neighborhood as a complete environment is designed to enhance the quality of life for all of its residents.

Proponents of New Urbanism look at it as more than just re-shaping how development is done in America. They feel it is a change in lifestyle that can lead to a more healthy society as a whole, simply by returning to these early principles that were abandoned during the period of urban sprawl.

Use -vs- Form

New Urbanism however tends to focus on form, rather than use. This leads to the implementation process with New Urbanism being quite rocky because it clashes with Euclidean zoning which is a use-based system. The implementation difficulties that New Urbanism runs up against in the marketplace don’t allow it to have the opportunity to compete on an equal footing with Conventional Suburban Development.

For example, since Euclidean zoning (by intent) divides land into zones each with a specific regulatory character (i.e. residential, commercial, industrial, and agriculture) the ability to combine compatible uses is greatly inhibited. In order to achieve the desired effect of mixed use one must work around current zoning practices through the use of such instruments as overlay zoning, variances, specific area plans, Planned Unit Development plans, and special use permits. It can be done, but it is typically at great expense of both time and money.

Because Euclidean zoning tends to focus on what CAN’T be done (through use restrictions) it ends up being very reactionary in nature. It defines by use, intensity, and bulk and thus only dictates what cannot be created, rather than what can. If a community wants to better define what they want to be they need to consider how the built environment must act in order for this shift to occur. This necessitates a shift from a reactive nature to a proactive one, which is done by establishing regulation based on what CAN be done. This process occurs by considering form rather than use.

Form-Based Codes

The use of form-based codes works to move form ahead of use in the planning process by developing a code system that works to build an overall vision of what a community wants to be. Victor Dover wrote of the need for this type of community visioning saying,

“The most important thing is for the Town to decide what it wants to be, physically, and then derive its approach to development regulation from that "vision."

When a city or town has a clear picture of what they want to be they can then set to work in defining this through the use of form-based codes which reflect more of the physical form than does Euclidean (use-based) zoning.

Typically, the “visioning” process of a community occurs through a series of public meetings called charrettes. These charrettes open the discussion of what is important to the community as a whole to its citizens so that what is planned for reflects the wants, needs, and desires of the community from a central, collective point of view. The charrette process also allows for the open explanation and discussion of form-based codes to occur. This allows the citizens who are voicing what is important to a particular community to learn how those principles of importance can and will ultimately be reflected in the development of the form-based codes.

Form-based codes are multi-disciplinary in nature addressing the design aspects of buildings, streets, and public spaces. Since form is the primary consideration rather than use, components of conflict are relieved and how the community ends up functioning once it is built can be improved upon.

Legal Challenges

Legal experts that I have conversed with about the implementation of form-based code are typically in agreement that litigation challenging the constitutionality of form-based code is quite unlikely (though not out of the question), because it is prescriptive in nature rather than proscriptive like conventional zoning. Since it deals with form rather than use it is much easier for the lay person to understand what it is trying to do. This often makes it clearer to those that are using it as well. Since form-based codes are direct and to the point in outlining what can be done in the community there is no guessing. Expectations are clearly set and can be more easily followed. Because public buy-in through the “visioning” process is achieved early on in the implementation process the picture is also made clear to a municipality’s citizens as to what the intent of the code will be, what community values it will uphold, and how those values will be espoused.

This is not to say that challenges will never arise. Real estate and development will always be about money and the bottom line. When money is involved there is always the risk of litigation. The challenges that might arise would probably stem from how form-based code defines the physical form.

The first area of challenge would most likely come from whether form-based codes, like conventional zoning, satisfy substantive due process through exercising the state’s use of the police power for the health, safety, morals, and general welfare of its citizens. If the goals of form-based code are considered legitimate in meeting the requirements of protecting the public at large than the courts would have to uphold their use since they would be shown as meeting the outlined goals of the community. The general feeling among the legal experts that are familiar with form-based code suggest that because form-based code deals with the goals of a community, and outlines the vision of what the community wants to be that it would easily stand up to the test of satisfying substantive due process. Only litigation would truly bear this out though.

One of the areas form-based code addresses that can be deemed as a community goal would be aesthetics and its contribution to the character of a community. This has been upheld by the courts in the past with historic preservation cases (i.e. Maher v. City of New Orleans). Courts have also upheld the ability of municipalities to regulate aesthetics as a legitimate use of the police power outside of historic preservation issues. In the case of Asselin v. The Town of Conway the issue of aesthetics as related to the town’s sign ordinances were challenged and upheld by the courts. Aesthetics is now generally accepted as a valid use of the police power through protecting the general welfare of the community. In terms of the use of form-based codes it seems that the test for which it would be measured would be whether the protections that form-based codes are designed to uphold would be in line with meeting the goals of the community (as mentioned above) and aren’t arbitrary or capricious. In the Asselin v. Town of Conway case the court specifically addressed the need of meeting goals and the strength for their justification by stating that,

“The restriction on internally lighted signs is rationally related to the town's legitimate, aesthetic goals of preserving vistas, discouraging development that competes with the natural environment, and promoting the character of a ‘country community.”

The implementation process that form-based codes go through is careful and specific in designing codes that reflect both the character and the goals of a community. As was previously noted this includes a “visioning” process through a series of charrettes to outline and determine what the community’s character and goals both are and should be. Because form-based code establishes itself in this manner, as well as painting a clear picture of how this is to be achieved through their regulation, they show strength. Arguments of form-based codes being arbitrary and capricious seem quite unlikely.

While there has been no formal challenge to form-based codes specifically on their use in regulating aesthetics, traditional neighborhood design (TND) ordinances have been challenged and were upheld by the Eleventh Circuit Court of Appeals as a legitimate use of the police power in Restigouche v. Town of Jupiter, Florida. Restigouche was prohibited from opening an auto dealership along the town’s Main Street due to a change in policy to protect the character of the neighborhood retail market along the Main Street. The town wanted to maintain a shopping district that would cater to the “everyday” shopping needs of its citizens. The court recognized that the town had a right to protect the aesthetics (as other court cases have as well) and that the protection of the neo-traditional elements reflected the community’s goals of creating a traditional downtown.

When measuring for the constitutionality of what form-based codes regulate the courts seem to test on whether the regulations meet community goals. The issue of aesthetic control is well defined and as long as the aesthetic argument is backed up by community established goals it would appear that form-based code would stand up well under these conditions in a court of law.

Form-based codes, while being very clear as to their intent in regulating the design and character of a community can run the risk of going so far as to be considered confiscatory in nature. Aesthetic requirements that may be deemed as being too strict could raise the issue of whether a taking has occurred. In Dallen v. The City of Kansas City the Missouri Appellate Court ruled on the constitutionality of the neo-traditional requirements of a corridor overlay district that interfered with the owners of a gas station’s ability to rebuild their station while also meeting the requirements of the overlay district. Part of the struggle in this particular case was the conflict between the neo-traditional ordinances that the overlay district required and the underlying zoning. When comparing the ordinance to the underlying zoning there was a direct conflict that made it difficult for the courts to uphold the use of the neo-traditional requirements. Whether this could happen with form-based codes is yet to be seen. There would be no underlying conventional zoning to cause a conflict because the form-based codes would exist in its place. This particular case, while showing the degrees to which neo-traditional ordinances could go causing a takings issue, also shows the incompatibility of conventional zoning (which regulates use) to the principles of New Urbanism and its neo-traditional approach (which regulates form). The incompatibility creates a “square peg in a round hole” scenario.

The basis for a number of form-based codes centers in part around the understanding of Andres Duany’s concept of the urban transect. Because the transect details particular uses based on context appropriateness and relegates them to their proper transect zones, some uses that might have been permitted under conventional zoning in an area would not be allowed under form-based codes. The preventions of particular uses (specifically “big box” retail) because of incompatibility issues in relation to the transect could cause litigation because of the implication of “down-zoning”. While this type of denial really isn’t down-zoning in the true sense of the word it may be construed as such by the farmer who can no longer sell a 30 acre parcel to Wal-Mart on the out skirts of town because the borders of town are now considered to be in a T-1 or T-2 zone. While form-based code doesn’t regulate by use (which conventional zoning does) this is a use-based argument. Form-based code simply looks at use in a different way and regulates it to its applicable transect zone.

Big box retailers are typically inflexibile in the way they do things, and so one would think that rather than bend to the requirements that the transect planning would require through form-based code they would litigate instead to get their way, or simply to make a point. To date, the pattern has been to bend to the rules of the community going so far as to even change the design of their warehouse size stores. I have seen firsthand instances of big box retail bending to the regulations of a municipality. On a trip to Gaithersburg, MD I visited the Washingtonian Center which is a mixed-use town center project which includes an outdoor mall. Within the Washingtonian Center there are two big box retailers (Target and Kohl’s) that worked with the form-based requirements of the city with the construction of their stores. Target built its first two story 77,000 square foot store in its history to meet city requirements. Kohl’s followed suit constructing a 55,000 square foot two story building. Rather than fighting the requirement or walking away and going elsewhere these big box retailers chose to bend their requirements and work with the development’s form.

Conclusion

While New Urbanism experts suggest that a legal challenge is extremely unlikely because of form-based code’s prescriptive nature I have learned that there are areas in which it might be challenged. I believe that these perceived areas of weakness can be addressed which will, in the end, strengthen form-based code as a product. It is difficult to speculate as to whether the strengthening of these weaknesses will occur prior to a legal challenge or if litigation will serve as the motivation to make form-based code stronger.