Category: compact development

pondering artifacts of displacement in the sustainable city

On By Chuck WolfeIn compact development, everyday urbanism, infill development, infrastructure, placemaking, sustainability6 Comments
What happens when the bicycles beat the big box?

Last week, George Monbiot of The Guardian sounded the urbanist alarm.

The cause? In order to offset strains on infrastructure, an Australian provincial initiative is offering stipends to Sydney residents who leave town.

Monbiot’s response included a headline which was nothing short of an international clarion renouncing this short-term fix. “Sustainable cities must be compact and high-density,” he said, while arguing for strong planning laws to stay the course.

Monbiot joins a legion of many who embrace the thesis of David Owen’s New York City-based “Green Metropolis“— and aptly suggest that the compact, less auto-dependent city is our necessary, sustainable future.

Monbiot’s tout towards planning is appropriate, but just what does it mean? For one thing, we must ponder the impacts of displacement, because there may no longer be enough room for life—or death—as we know it.

If our cities are to become more dense, what will become of uses and properties which do not present optimal uses of urban land? As the disfavored car dealerships, warehouses and low-rise strip malls reconfigure and yield to more concentrated uses, policymakers should be forward thinking in their prescriptions for the changing city.

Will some positive or necessary, low density urban traditions also be dispossessed? Where will they go in a gradually reshaped, sprawl-free urban system?

My choice of Latin words above— “clarion,” “legion” and “thesis”— are not accidental. In classical precedent, there are thought-provoking lessons, still visible at will.

Consider Rome, and learning from the landscape of an iconic walk in the Appia Antica Park on its outskirts.

Opened in 312 B.C., the Via Appia (the “queen of the long roads” of ancient military transport and commerce) traversed ancient Italy from Rome to the Adriatic port of Brindisi.

All along the walk today, over original paving stones, ruins flank the roadway—remnants of burial monuments, statues, tombs and towers.

Sometime after 200 A.D., burials were banned in the city, because of crowding and land values. Catacombs on the periphery offered mass internments to the growing religious population. Along the main thoroughfares, further beyond the city walls, the wealthy adorned the roadsides with personal and family tributes— now an outdoor museum of bygone sprawl.

In ancient Rome, density drove out the dead, and changed the landscape in unanticipated ways, still visible today. It’s a legacy worth noting after two thousand years.

If our cities must be dense to be competitive and sustainable, we must also look with care to the potential displacement of uses, institutions or traditions—not to mention the artifacts we will leave behind.

All images composed by the author.

a postcard of compact development

On By Chuck WolfeIn compact development, postcards, urban views2 Comments

It appears that a reduction in the size of residential basketball courts and equipment goes hand in hand with emerging compact transportation modes.

remembering shelter, not standards

On By Chuck WolfeIn compact development, everyday urbanism, housing, placemaking, sustainability4 Comments

Inherited forms of shelter are to residential zoning what oral histories are to Gutenberg—the backdrop of rich tradition for codification and institutional creation. If safety and well-being are maintained, such institutionalization may be laudable for preserving practices or legends otherwise lost with time.

However, if the result is lost functionality, needless complexity, discrimination or prohibitive expense, the institution may need reexamination.

For instance, what if a zoning code is no longer cohesive, or impedes rather than accomplishes societal goals?

Sometimes the contrast of a different place and tradition can refocus priorities, and warp the senses.

Consider the iconic Maasai village, with a perimeter of brush to discourage animal invasion, and a central open space for market or celebration. Consider further the adjacent huts built of dung and sticks with cramped entry spaces and “room” division with spaces little more in size than our natural reach.

The form and function works, as it has for countless generations.

What if we tried to zone this tradition, with setbacks and ratios and heights and densities? What acronyms would we develop? Would we fall prey to increased allowances for cultural status based on cow ownership?

In the end, ironically, would such codification ultimately prevent the type of shelter that the regulatory effort set out to model?

When the questions are posed, and we contemplate zoning classifications such as IH-1 (Indigenous Hut 1) or CAR (Cow-Area Ratio), the dialogue sounds absurd. And that may be the very point.

Through the complex evolution of initially well-meaning institutionalization, perhaps we risk losing our way.

When necessary or appropriate, let’s remember to reassess, with simplicity in mind.

Cross-posted in Seattle’s Land Use Code: Listening for the future of the city.

the soul never thinks without a picture of a city

On By Chuck WolfeIn compact development, everyday urbanism, infill development, sustainability, urban views5 Comments

Aristotle said that a soul never thinks without a picture.

He must have meant a picture of a city, because, in humanistic response to today’s pragmatic world of policy, regulation and urbanist proclamations, I often remember an August 12, 2006 photograph taken with a Nikon D-200 traded away long ago.

The camera is gone, but the image of Spinola Bay, St. Julian’s, Malta lives on, even as filtered and set to music here last July.

The reason is simple.  The photograph suggests straightforward and ideal balances as follows:

  • A balance of color, of dark and light;
  • A balance of people, of land, water and sky;
  • A balance of automobile, boat and pedestrian commingling and observing;
  • A balance of residence, employment and compactness that seems not only to work, but to extol like a poster the virtues of urban life;
  • And, finally, a balance that much of today’s contemporary urban examination and discussions prescribe anew.

In a portrait of a former small fishing village, and now a literal reflection of dwellings, shops and restaurants in an island country, there is buried not only a treatise, but a novel and a fantastical place to dream.

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.