Category: infill development

the legal footprint of form-based codes in Washington state

On By Chuck WolfeIn compact development, environmental and land use law, infill development, pedestrianism, placemaking, sustainability, transit oriented development8 Comments
Here is an informational overview, not intended as legal advice (nor reflective of any client perspective), about the underpinnings for Form-Based Codes in Washington State. Thanks to Seattle attorney Erica A. Doctor for assistance as part of preparation for an upcoming Form-Based Codes Institute program in the Seattle area.

Form-Based Codes, with emphasis on built-environment form over land use elements, have been used successfully in a number of American cities, but have not been implemented on a widespread basis in the Seattle area.  Professional speculation has identified a range of factors for this lack of adoption, including challenging terrain, lack of a traditional, vernacular “look and feel,” and a reluctance to limit permitted uses or compromise property rights.[1] In addition, with some exceptions, limited local familiarity with drafting, adopting, and implementing Form-Based Codes may have led to maintenance of more familiar land use regulatory practices.[2]

Some local government officials may also fear that “over-regulation” or “new forms of regulation” could stifle redevelopment or revitalization.  But Form-Based Codes are built on familiar legal principles, and so long as local governments proceed with reflection and purpose in a willing marketplace, enactment of Form-Based Codes could reposition a city for compact, less automobile-dependent growth and redevelopment and revitalization of appropriate urban areas.

In addition to the implied, general police power that provides local governments the authority to regulate land use, the Growth Management Act (GMA) and the State Environmental Policy Act (SEPA) add their own, Washington-specific gloss.  In the regulation of aesthetics, land use case law has also provided a specific, due process example relevant to Form-Based Codes, in particular, Anderson v. Issaquah, decided in 1993.  These elements of Washington law are explored in more detail below.

I. The Growth Management Act

In Washington, the GMA[3] champions the role of the comprehensive plan.  Prior land use enabling legislation such as the Planning Enabling Act[4] and the Planning Commission Act[5] authorized, but did not require, cities to adopt comprehensive plans.  After the Legislature enacted GMA, the state’s largest and fastest growing local governments were required to create and implement comprehensive plans.

While GMA grants a significant amount of discretion to local governments to craft comprehensive plans, it includes specific requirements, which in essence mandate preservation of rural character in rural areas, protection of critical areas and agricultural lands, and encourage  smart growth within urban growth areas.  Taken together, GMA’s goals discourage sprawl, while explicitly mindful of property rights.  In the context of Form-Based Codes, the Growth Management Act grants a local government the discretion to innovate, so long as the associated regulation meets GMA requirements. [6]

To implement comprehensive plans, local governments create development regulations, which must (1) be consistent with the comprehensive plan, and (2) satisfy the requirements of GMA, or face invalidation by a Growth Management Hearings Board. Accordingly, like all development regulations, Form-Based Codes must (1) be consistent with the comprehensive plan, and (2) satisfy the requirements of the GMA.  In order to pass muster under Growth Management Hearings Board review, drafters should consider how a Form Based Code meets the GMA’s planning goals.

Generally, local governments must balance conflicting goals when drafting plans and regulations. Clear reference to local circumstances will help ensure a defensible record. Local governments may create a separate document that outlines the local circumstances and incorporate it by reference in the operative ordinance.

Like other development regulations, Form-Based Codes are also subject to SEPA review.[7] As part of the implementation process, the agency decision-maker must consider the information generated by the SEPA process, whether programmatic or project-related.  Where a local government is seeking to use an optional Form-Based Code as an overlay, a Planned Action under GMA and SEPA could serve as an incentive,  perhaps in concert with a Development Agreement. As with other planned actions, environmental review for a Form-Based Code district could be limited to (1) verifying the action meets the qualifications of a Planned Action, and (2) probable significant adverse environmental impacts were adequately addressed in the Planned Action EIS.[8]

II. Due process

Anderson v. Issaquah

Constitutional principles of due process stand behind permissible statutory and regulatory approaches to land use regulation.  In Washington, substantive due process requires that a regulation is premised on a legitimate government purpose, that the means to achieve that purpose should be reasonably necessary, and that the impacts of the regulation should not be unduly burdensome.   Procedural due process assures that those affected by a regulation should have adequate notice and a meaningful opportunity to be heard.

Both forms of due process risk violation where regulations are unclear, or vague, or overbroad. In Washington, zoning regulations do not have to meet an impossible standard of specificity, but they must be clear enough for a person of “ordinary intelligence” (in other words, someone who is not necessarily a city planner, engineer, or attorney) to ascertain what is required[9].

Anderson v. Issaquah[10] is an important land use case in the area of regulation of aesthetic criteria and design review, and is often cited nationally, including with reference to the defensibility of Form-Based Codes. The Washington State Court of Appeals in that case said that regulatory codes must give “effective, meaningful guidance” to developers — and to decision-makers, and to the courts, who must review contested plans — in order to be enforceable.

Anderson involved a developer seeking Issaquah Development Commission approval to develop a commercial project in Issaquah.  The code enacted by the city[11] required, among other things, screening on incompatible buildings, encouraged harmony in texture, lines, and masses, and suggested that efforts be made to make projects interesting.   Unfortunately for Anderson, the site for his project was surrounded by mountains and natural areas, a historic Victorian-era home, gas stations, a bank built in the “Issaquah territorial style,” an Elks hall described as a “box building,” and a veterinary clinic with a cyclone-fenced dog run.  He experienced difficulty making his project “harmonious” with its surroundings.

He appeared before the Development Commission several times, and was repeatedly given vague guidance from commission members.  One member drove up and down Gilman Boulevard identifying the design elements he desired for Anderson’s project and recited them during a hearing.  Anderson’s permit application was denied because his project lacked “a certain feeling,” with the suggestion that he start from scratch.  Anderson appealed.  Ultimately, the appellate court held the Issaquah Municipal Code was unconstitutional and violated due process, because it was vague and gave decision-makers too much discretion to approve or deny permits based on gut feelings.

Anderson remains an influential case for determining whether the aesthetic components of a regulatory review process pass muster, and it should be considered carefully in the creation and implementation of Form-Based Codes.  The takeaway lesson is that any “statements,” impression or visions that a local government wants to make must be included in the code in a clear and precise way in order to be enforceable.

Public process

In Washington, GMA mandates public process,[12] and failure to meet applicable requirements could be viewed as a “substantial interference” with GMA’s public participation goals.

Form-Based Codes typically require significant up-front visioning and public participation.  It is likely that the intensive public input native to adoption of Form-Based Codes would be adequate to meet the requirements of GMA.  However, in any incentive-based scheme, such as streamlined permitting or accelerated review for developers who choose to avail themselves of a non-mandatory Form-Based Code, the process should be stated clearly.  Review of a proposal cannot be arbitrary per Anderson; regulations, through text or illustration, should provide decision makers with understandable standards for approval, including allowable variances and conditions.

Conclusion

There are existing examples of Form-Based Codes in the Puget Sound region.  King County has launched a pilot project to adopt Form-Based Codes in three areas, and Bothell and Mountlake Terrace have both implemented Form-Based Codes to revitalize their downtown cores.[13] Meanwhile, Seattle recently amended its low-rise multifamily code to bring some elements of Form-Based regulation into the city’s more traditional zoning code.[14] The cities that have implemented Form-Based Codes have attempted clarity and precision, have provided graphics and photographs to illustrate the requirements, and have specifically stated goals and visions.  They have generally provided for extensive, transparent public involvement, as well as associated review procedures.

Does Washington State need more legislation to better set the groundwork for Form Based Codes? To address its own skeptics, the State of California adopted legislation specifically authorizing Form-Based Codes.[15] Adopting similar legislation in Washington would provide certainty of legislative intent, but is probably unnecessary considering that the legal framework in place already appears to be sufficient. Further, by following the existing statutory framework and the guidance set out in case law, specifically Anderson v. Issaquah, Form-Based Code implementation could move forward if consistent with a locality’s vision and marketplace.

[1] See Bob Bengford, “A Hybrid Approach to Form-Based Codes in the Northwest,” MRSC Planning Advisor, January, 2010

[2] Id.

[3] RCW 36.70A (1990)

[4] RCW 36.70 (1959)

[5] RCW 35.63 (1935)

[6] See RCW 36.70.090, encouraging innovation in “land use management”.

[7] RCW 43.21C; see also Kucera v. Dept. of Trans., 140 Wn. 2d 200 (2000).

[8] Id. See also the Washington State Department of Ecology SEPA Handbook .

[9] Burien Bark Supply v. King County, 106 Wn. 2d 868 (1986).

[10] Anderson v. Issaquah , 70 Wn. App. 64, 851 (1993).

[11] Issaquah Municipal Code 16.16.060(B) and (D)

[12] RCW 36.70.035

[13] See Bengford, supra; Mountlake Terrace Design Standards; Bothell Downtown Plan supporting documents; King County project detail.

[14] See Erica C. Barnett, “Rowhouses and No Parking Requirements: Coming to Seattle!” Publicola (Nov. 30, 2010).

[15] Assembly Bill 1268 was signed into law in July 2004; see Form-Based Codes: Implementing Smart Growth.

sustainability and authenticity, personified

On By Chuck WolfeIn everyday urbanism, housing, infill development, sustainability12 Comments

Mosler Lofts, Benjamin Benschneider photo, courtesy The Schuster Group
In an era when the term “sustainability” is increasingly cast as mere jargon, it is worth noting a sincere and authentic application of family, business and building which gives credence to the term.

Seattle entrepreneur, developer and philanthropist Mark Schuster’s Lofty Pursuits, published last September (Brown Books Publishing Group (2010)), is a must-read, for true believers and cynics alike, as a unique contribution to today’s dialogue about the sustainable city.

Schuster’s book focuses on family tradition and a related business ethic infused by his grandfather, George Mosler, and their embodiment not only in Schuster’s career, but in an award-winning downtown Seattle building, Mosler Lofts. In the spirit of Tracy Kidder’s 1999, House, the reader is left with a multi-disciplinary, emotional and technical experience of building creation, with multiple lessons learned.

Mosler Lofts was Seattle’s first LEED Silver-certified condominium, completed in 2008, and has won over 60 awards at the local, regional and national levels. The story of the building’s challenges—from concept stage through financing and construction— could have been the book’s sole story-line, complete with notable detours such as overcoming cracked foundations on adjacent property.

Yet the inspirational—and, more commendable—aspect of Schuster’s storytelling shows how the initiatives of his development team towards achieving green construction and LEED criteria merged with something far more universal: family values and giving back to the community with the future in mind. Given Schuster’s long resume of community service and social responsibility, his sustainable outlook evokes an authenticity which defies easy challenge.

Lessons learned? Countless family memories, reflections from self-education and business start-ups, on the job CEO and community service learning as well as the richness of a collaborative, team environment. Schuster is frank and self-critical throughout, particularly amid the hard knocks of project delay and complexity, which is particularly key to the book’s holistic success.

While Schuster’s narrative is sometimes truly “lofty”—by including a personal 2005 visit with Israeli and Palestinian leaders amid the story of Mosler Loft’s early marketing–he cannot be faulted for irrelevance. He does not miss a beat with such stories—admirably evoking the practical virtues of voluntarism and mission in building sustainable community.

Although the book’s subtitle, “Repairing the World One Building at a Time” might seem overly incremental and short of comprehensive, Lofty Pursuits is a must-read for its complete, implemented example.

In the process of telling one building’s story, Schuster evokes a much larger community, without getting lost in overused jargon, or impracticalities of the intangible.

“diagram no. 3” and more memories of the roots of urbanism

On By Chuck WolfeIn compact development, everyday urbanism, infill development, placemaking4 Comments

In the course of an 1848 speech, Benjamin Disraeli said that “a precedent embalms a principle”.

Today’s first myurbanist entry identified early principles of Roman “placemaking” as captured by Vitruvius.

This second entry recalls an intriguing diagram from almost two thousand years later which may have played a similar foundational role.

Writing in Green-Belt Cities in 1946, Frederic Osborn noted his candidate for the roots of a neighborhood focus in city planning— “precisely [within] the principles of development so lucidly expounded in” Ebenezer Howard’s 1902 Garden Cities of Tomorrow “and exemplified in the two Garden Cities which Howard founded…”

“He reinvented the neighborhood unit idea, which is to be found in More’s Utopia, and is implied in our system of local-government wards, but had been forgotten by townsmen…”

Osborn no doubt refers to Howard’s proposal that “… it is an important part of the project that each ward, or one-sixth part of the city, should be in some sense a complete town by itself, and thus the school buildings might serve, in the earlier stages, not only as schools, but as places for religious worship, for concerts, for libraries, and for meetings of various kinds….”

'Diagram No. 3', the school-centered ward. The modern origin of neighborhood planning? From Howard, Garden Cities of Tomorrow, 1902

Here, Howard encapsulated much of the neighborhood unit and then-contemporary “community center” movement, foreshadowed Clarence Perry by some 20 years, and, in his “Diagram No. 3,” perceptively showed the school at the ward’s center, a railroad station at the ward’s corner, and industry separated at the periphery.

As noted before, the challenges of integration of neighborhood and the city are not new, and may forever live on.

density and multi-modal, by any other name

On By Chuck WolfeIn compact development, environmental and land use law, infill development, infrastructure, pedestrianism, placemaking, urban administration13 Comments

Does the messaging which encourages sustainable forms of development need to alter its vocabulary to be successful?

Yesterday, Wednesday, January 5, I presented on removing barriers to transit-oriented development, sustainable communities and brownfields to a group of real estate lawyers from around the country assembled for a continuing legal education conference in Vail, Colorado.

The presentation is embedded below, and addresses in summary form the range of design, regulatory, fiscal and political issues in metropolitan areas today (with a Washington State focus). Yesterday, it was presented as the basis for a post-recession vocabulary for lawyers as well as clients and peer professionals.

Formal and casual discussion after the presentation was informative. We talked about the ongoing challenge of implementing compact and infill development adjacent to transportation infrastructure. Topics included infrastructure funding, urban streetcar initiatives, and how to address elements of walkable, transit-oriented development to constituencies not initially familiar with urbanist concepts or supportive of increased density.

Some in the audience suggested alternative language to mask hot-button words. Tax-increment financing to fund new infrastructure for transit-oriented development became a “parking fund”. Density was acknowledged as forever outside of some people’s comfort zone. And new neighborhoods aimed at live-work proximity were discussed as sometimes problematic in light of potential restrictions imposed by competing forms of environmental governance such as stormwater and air quality regulation.

I was reminded of twenty years ago, when drafting rural cluster development ordinances designed to protect natural resources. To some “cluster” meant “clutter’. We needed to call such regulations something else–such as “conservation density subdivisions”–to make them acceptable in many venues.

All in all, yesterday’s post-presentation discussions were illuminating in their own right, in response to provocative themes–and a reminder of the importance of holistic dialogue in the evolution from well-meaning dogma to achievable professional and political consensus.

Colorado January 2011

from the clippings drawer: the public plaza of old

On By Chuck WolfeIn infill development, lessons learned, pedestrianism, placemaking1 Comment

From the clippings drawer, here is a memory of how downtown public plazas were described some thirty years ago in Seattle, contemporaneous with William H. Whyte’s classic study of the use, non-use and unintended behaviors characteristic of such legislated places.

Please see below an embedded image of Linda Sullivan’s Seattle Times article. Zoom in to read the text, in which she examines, as did Whyte, how human behavior and preferences related to, and, in some cases, modified the original plaza designs of this urban downtown of 1979.