Could sustainability principles pave the path to peace?
President Obama’s strategic statements about the Middle East last Thursday (and as clarified to AIPAC on Sunday) were not city-specific, but took me back one year to Jerusalem and in-person perspectives on the city’s prospects.
My 2010 reflections, reproduced below, capture individuals still in the news, and the issues of today’s urbanism, boundaries and ecosystems in Jerusalem—considerations well worth heeding in response to the President’s focus on borders, and his call to embrace the choice “between the shackles of the past and the promises of the future.”
In Jerusalem, a municipal administration rides a pendulum between sustainability and geopolitics.
Greenbelts, light rail, complete street-making, and the storied demolition orders for Palestinian homes in a floodway: all live on a world stage.
Last week, addressing Pacific Northwest professionals visiting with Seattle-based i-SUSTAIN, Deputy Mayor Naomi Tsur prescribed the ultimate sustainable urbanism, drawing from a Hebrew phrase. Jerusalem must “emerge from its [many] walls,” old and new, she argued, and enhance the city’s diverse, public areas largely already shared by all.
The Jerusalem of gathering spaces and neighborhoods is already present, she claimed, and should no longer grow out in rings of settlements, but should preserve compact neighborhoods based on affinity, interlinked by public transit and defining connectors such as the Jaffa Road and the Street of the Prophets.
The tools? Public process, for one, even in areas annexed after the 1967 Six-Day War, to help define a collective local voice.
Her systemic analysis of the city is familiar and compelling, as she simultaneously seeks to avoid a Nicosia outcome (a reference to the divided Cyprus to the northwest). Arguably, she is peacemaking on a platform of the sustainable city.
For instance, Tsur thinks at night about the infrastructure lacking in East Jerusalem, and how the city should rise above the intractable and remedy untreated eastern watershed drainage, which flows directly to the Dead Sea. It would be feasible, she says, to pump this sewage to the state-of-the-art treatment plant that already treats the western watershed sewage, and create drinking water through sustainable technology.
Meanwhile, in the East Jerusalem village of Silwan, along the Kidron Valley, just below the City of David and Hezekiah’s water tunnel, Fakhri Abu Diab thinks at night about other things — like what to tell his children about the potential fate of the family house which still “carries the smell of his mother.” As recently reported by The New York Times’ Ethan Bronner, the Abu Diab house was one of several that received a demolition order, because it was expanded without a permit and is the potential location of an archaeological park at the base of excavations already mired in the complexities of political archeology — a search not only to document biblical events, but seen by detractors as a Jewish land-claim process in disguise.
In Abu Diab’s view, the post-1967 municipality has ignored him before, and he lacks confidence in the proposed relocation offer, which is under negotiation for a move to higher ground.
Walls, sleepless nights, conflict, water, and a future for children. The human condition speaks loudly in this most urban of cities, as the debate over the future of Jerusalem brings a reality-television aura to local land-use administration.
The original article also appeared in Crosscut, here.
Visits to other cities can easily create “grass is always greener responses” which are hardly complete analyses of a place and its problems.
Yet these human, spontaneous gestalts are worth noting, because they say something about the immediate look and feel of location, and can constitute authentic perceptions of the best of urbanism.
My role in Portland, Oregon last Friday was to present the results of my recent, co-authored study on transit-oriented and urban center development to a meeting of the American Bar Association’s State and Local Government Law Section—and then to co-lead a bus tour on specific, local examples—from the Lloyd District to the Pearl District and beyond.
In keeping with the spirit of gestalt, something very human happened along the way.
For the past few years, Portland has inspired urbanist writers because of an advanced transportation system (including light rail, streetcar and bicycle), a highly walkable downtown, and development practices which have captured the imagination of a new generation of city-oriented populists.
From a fundamental, “read the city” perspective, downtown Portland and its close-in neighborhoods capture the best of an urban experience. The scale, street surfaces and sidewalk furnishings occur amid integrated, yet appropriately separated transportation modes and supportive green spaces. Innovative business and community groups have leveraged proximity to transit and managed parking through successful development strategies.
All lead to irresistible memories of examples from elsewhere and a universal question:
How can we capture this experience in my city?
Perhaps such a fundamental human response is the best metric of all, and the key to achieving a livable place.
Cities are the focal point of interaction between human and natural systems and are the laboratories of how best to live—call it “achieving the urban balance”. We all have pictures of what that balance should look like, both visually and in terms of environmental impact.
Of the many human systems that contribute to the urban balance, land use regulation plays an important part, as the consensus constitution for forms of urban development going forward. Traditional land use tools need to evolve in order to assure a sustainable urban balance and to better wed land use and transportation issues.
The question is how to achieve balance amid the implementation barriers common to presentation of new urban land use approaches.
Many examples of innovation exist, from form-based codes to sustainable development regulations, all designed to move away from increasingly disfavored separation of zoning uses, to approaches which facilitate less reliance on the automobile where possible, encourage forms of transportation which emphasize human health, as well as more clearly enable sustainable development tools.
As a hopeful indicator, there are positive signs in the Puget Sound region. For example, in the time since a report identified regulatory, political and fiscal barriers to transit oriented and urban center development in 2009, initiatives at the local and state levels have turned renewed attention towards issues of concern in the transit and infrastructure-funding arenas. Municipalities have experimented with types of zoning which focus more on look, feel and mixed use than hard and fast, traditional techniques. In addition, last Fall, on behalf of the region, the Puget Sound Regional Council was awarded $5 million in the form of a federal Sustainable Communities grant to enhance planning for urban centers along transit corridors.
However, fallout from recent midterm elections has illustrated the risks of backsliding—a reminder that “achieving the urban balance” and related inventories of best practices and regulatory enactments are more often than not inherently political—and often fall short of lofty goals.
Backsliding can be offset by “stay the course” non-governmental organizations, professionals and citizens who will survive political change, and who will continue to parlay an evolutionary urban agenda.
Let’s both grow the toolbox, and keep it open.
Cross-posted as part of the inaugural series, “C200“, on Citytank.
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 Instituteprogram 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.
When I started contributing to local publications in 2009, one clear role model was Kaid Benfield, the Natural Resource Defense Council’s (NRDC) Director of Sustainable Communities and Smart Growth. His almost daily pieces from Washington DC provide a lexicon of best practices and useful imagery, and offer must-read perspective. (In addition, Kaid appears regularly in Huffington Post, DailyKos, Sustainable Cities Collective, Rooflines, and CNU Salons).
In the context of our September 8 and 9, 2010 inter-blog collaborations, Kaid kindly granted his consent to reproduce one of his signature pieces, an open letter and challenge to the smart growth community to address not just where growth will occur, but also green building and infrastructure, parks, and affordability, all in the same process.
The bottom line: Two years old, but prescient words, worthy of a report card. Even amid severe economic recession, there has been no shortage of attention to planning for sustainable communities, including the multi-agency collaborations and grant funding programs of the Obama administration.
Please take a moment to review Kaid’s observations from October, 2008, below. Have we listened and learned?
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An open letter to the smart growth community
(Kaid Benfield, October 22, 2008)
There is no way we should be settling for, or applauding, this . . .
When we should be advocating this:
It is time to take smart growth advocacy beyond “smart growth” as we have been defining it. In short, we should be doing more for the environment. And we should be doing more for the social health of our neighborhoods, too.
I am proud to have been at the center of the national smart growth movement since its beginning. But I believe it is time for advocates and practitioners to embrace a broader, more holistic vision of what smart, sustainable development should be in the 21st century.
This will mean retaining, but also being more ambitious than, the largely “infill, compact development, and transit” agenda for smart growth that has served us very well so far. It will also mean reforming the broader environmental community’s (yes, including my own group’s) advocacy for watersheds, green technology, and cities to place those issues in a context that more explicitly embraces growth and urbanism. The environment demands this of us, and so does our aspiration to teach and to lead.
This may seem a bit remote to those of us who are focused intensely on an immediate legislative agenda (e.g., the upcoming federal transportation bill or the wonderful recent achievement of California’s SB375), a local community’s comprehensive plan, or the latest proposed highway (or even LEED-ND, a fine program over whose criteria I have shed more personal blood than I wish). But I believe that we must think not just about the menu in front of us but where we want to – and where we can – take our communities over the next generation and beyond.
Sprawl as we have known it may not be dead but it is surely not well, and we are already seeing the beginning of its end. The smart growth movement can take a lot of credit for developing and pressing the more compact and transit-oriented development that will replace it. This is wonderful; but it is not enough. We should now begin developing a vision and a program of advocacy that looks beyond fighting sprawl and focuses not just on where, how much, and by what mode of travel, but also on what, and how.
Smart, sustainable development for the 21st century should include not just infill, density, and better transportation choices but also the following:
Green building (there is simply no excuse for not doing it at this point)
Urban green infrastructure, including neighborhood parks (that can help heal ecosystems while also making the densities we need for transportation efficiency more hospitable)
Inclusive urban revitalization, with equity, affordability and historic preservation (most US central cities and older suburbs have so much capacity for growth, if we do it right)
Walkable neighborhoods that facilitate fitness and health
Livable, human-scaled, place-based neighborhoods that create good ambassadors for our movement and that NIMBYs want rather than fight
Most of us, if asked, will say that we already support these things, and we do. But we almost never advocate them as a whole.
We’re all guilty of being too narrow. Frankly, I think it is a disgrace that green building advocates have almost gleefully turned a blind eye to the locational consequences of building. I was personally involved in an innovative housing partnership that has been remarkable in its accomplishment for green building and affordability, but that largely failed to embrace meaningful smart growth standards. My very good friends in new urbanism can be inspirational and are the very best at placemaking, but can sometimes turn soft when it gets to location and green building. Some of my colleagues in the environmental community still act parochially, as if growth and development will somehow disappear or become more benign if we chase it away from a place that occupies our attention, when in fact it is likely to find a place or a form that elicits less resistance but the prospect of even more environmental damage.
But we in the smart growth movement, too, are at fault. Much of what is being constructed, for example, in the name of transit-oriented development — frequently with our applause — does little for the environment other than transportation efficiency and is just plain ugly. I don’t blame NIMBYs for being resistant. Yet we seldom push for models or incentives that ask for more.
We are all, nearly every one of us, being too limited in our vision.
We know that compact development patterns can reduce carbon emissions from transportation by 20-40 percent or even more if ideally located. But, if Greensburg, Kansas can set a more ambitious goal of reducing its total carbon footprint by half through walkability and green technology, no environmentalist should aspire to less. If my favorite developer can build project after project after project that includes not only great density and location but also green infrastructure, green building, and affordability, we should not advocate less. I am not suggesting that the smart growth movement abandon or replace our current sprawl- and transportation-based advocacy. But I am increasingly convinced that we must make our agenda more robust.
What might this mean, you may legitimately ask? To take the same examples of immediate advocacy I mentioned above, why shouldn’t there be a sustainable communities title in the new transportation bill? The research makes clear that inner-city revitalization and transit-oriented suburban development dramatically reduce automobile use and the need for new roads. It would make perfect sense to develop a dedicated program to invest a portion of federal transportation funds not on transportation facilities per se but on attracting more development to these areas, conditioned on making the neighborhoods affordable, green, and mixed-use. We could focus the benefits especially where there are currently vacant or underutilized properties, and require or provide bonuses for parks, green infrastructure, and inclusive planning that will attract residents and businesses to these locations that have been proven to reduce driving.
For the kind of metropolitan land-use planning that will be undertaken to reduce carbon emissions under SB 375 in California, or pursuant to comprehensive plans in municipalities, why not address not just where growth will occur, but also green building and infrastructure, parks, and affordability, in the same process? Let’s address a variety of issues at once, with the goal of reducing more emissions than would land planning alone while creating complete, cohesive, inclusive neighborhoods. And, if you’re fighting a sprawl-inducing highway or subdivision, don’t just fight; propose the constructive alternative that meets the same needs without sprawl but in a greener, more appealing way.
These examples are just illustrative. The key is to start advocating these elements together, in the same forums. To close on a personal note, many of us who now work on smart growth were environmental advocates before we were smart growth advocates. We must become that again. And more.
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Please scroll over photos for credits. See original post for comments. This entry is also cross-posted in seattlepi.com, here.
