The Judge Report - Scrap Zoning

Scrap Zoning; Legalize Great Places
by Rick Cole 01/02/2009


Crisis offers opportunity. With real estate in a freefall, there is an opportunity to lay the foundation for a more prosperous and sustainable American landscape.

If only there is the vision and political will.

What is the single most significant change that can be made in every town and city in America? One that would aid economic development, reduce greenhouse gas emissions, foster healthier lifestyles, reduce dependence on foreign oil, protect open space and wildlife habitats, and reduce wasteful government spending?

Scrapping zoning codes.

Take any great place that people love to visit. You know, those lively tourist haunts from Nantucket to San Francisco. Those red hot neighborhoods from Seattle’s Capital Hill to Miami Beach’s Art Deco district. Those healthy downtowns from Portland, Oregon to Chicago, Illinois to Charleston, South Carolina. What do they all have in common?

The mix of uses that gives them life are outlawed by zoning in virtually every city and town in all 50 states.

Widespread adoption of zoning is a legacy of Herbert Hoover. As Commerce Secretary, he pushed zoning regulations to cure “the enormous losses in human happiness and in money, which have resulted from lack of city plans which take into account the conditions of modern life.” He championed the “Standard Zoning Enabling Act” to address “the moral and social issues that can only be solved by a new conception of city building.” After the Supreme Court upheld zoning in 1926, zoning — and sprawl — spread from sea to shining sea.

The high court based its decision on the need to protect health and safety 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 store, shops and factories.” The quite sensible idea that people shouldn’t live next to steel mills was used to justify a system of “zones” to isolate uses that had lived in harmony for centuries. Suddenly, new neighborhoods were segregated by income, and commerce was torn asunder from both customers and workers. Timeless ways of creating great places were ruthlessly outlawed.

This coincided neatly with the rise of the car industry, and the systematic dismantling of America’s electric streetcar network. Today, we look back nostalgically on the “streetcar suburbs” and the booming cities of turn-of-the-century America when we sing:

City sidewalks, busy sidewalks
Dressed in holiday style
In the air there's a feeling of Christmas.
Children laughing, people passing,
Meeting smile after smile
And on every street corner you'll hear. . .
Silver bells, silver bells
It's Christmas time in the city.

But zoning, cars, and suburban development put an end to such “contagion and disorder,” replacing busy “city sidewalks” with enclosed malls, parking lots, and traffic congestion.

Today, almost everyone admits the environmental and social devastation caused by sprawl, though some still defend it as a response to the consumer market. But “The American Dream” of single-family tracts, shopping centers and business parks owes more to zoning mandates than to market economics. Zoning was imposed on the American landscape by an unholy alliance between Utopians preaching a “modern” way of life and hard-headed businessmen who profited from supplying that new model, including an auto industry steeped in the ideology that "What’s good for General Motors is good for America."

Politicians at every level bought into sprawl, playing both sides of the zoning game to harvest votes and campaign cash. It’s no coincidence that the rocket-fueled career of Vice President Spiro Agnew began at a suburban zoning board. He would have succeeded Richard Nixon as president if criminal charges for taking bribes from developers hadn’t caught up to him and forced his resignation first.

For a long time, support for zoning was impregnable. In the only country on earth to organize its urban form around Crayola colors on a map, those who questioned zoning were treated like the lunatics who denounce paper money.

Until now, perhaps. Younger Americans are turned off by the devotion of Baby Boomers to the landscape of “Leave it to Beaver.” Environmentalists are slowly realizing that, in protection of the environment, cities aren’t the problem, they are actually the solution. A movement of post-modern planners, architects, developers, transit advocates and historic preservationists has emerged under the banners of “smart growth,” “new urbanism” and “green building.” And at the local level, citizen activists (and even elected officials) are finally pushing to reverse suburban sprawl. A new vision has emerged around building compact and energy-efficient communities for the future.

What’s been lacking is the tool for producing that outcome, and for supplanting zoning at the local level. If “zoning” is the DNA of sprawl – the coding that endlessly replicates the bleak landscape of autotopia – then what is the DNA of livable communities?

It is found in timeless ways of building, updated for the 21st Century, including the need to accommodate cars. It regulates incompatible uses without the absurdities of conventional zoning. It is calibrated for new buildings to contribute to their context and to the larger goal of making a great place. It does so primarily by regulating the form of buildings, since that is what determines the long-neglected public realm of streets and sidewalks. It does that by regulating setbacks, heights and the physical character of buildings.

It exists, and it’s quietly spreading.

Where it’s been tried, it’s been a success. Seaside, Florida, the poster town for “new urbanism,” was “coded” rather than zoned, and ended up on the cover of Time magazine. In 2003, Petaluma, California scrapped its zoning regulations and adopted a new code for 400 underdeveloped acres in their Downtown, producing more than a quarter billion dollars in new investment. Miami, Florida is the first major city in America to embark on replacing zoning citywide.

Unfortunately, this promising alternative is currently saddled with two competing names, both of them unsatisfactory if the movement is truly to catch fire.

“Form-based codes” is the cumbersome term popular amongst planners. It is a literal tag that captures the emphasis on regulating the “form” of buildings, rather than the obsession with their “use” that is common to all zoning codes. But Americans suffer collective amnesia about why the form of cities determines their character; so while it addresses the “how” of coding, it fails to convey the “why.”

It clearly lacks the appeal of “No Child Left Behind” or “Homeland Security” as a marketing tool for reform.

Recognizing this, Seaside’s designer, Andres Duany, coined the term “smart codes.” The advantages of replacing a “zoning code” with something called a “smart code” are pretty obvious: “smart” is much better than “dumb,” which is why “smart growth” has caught on as a slogan. The obvious tool for promoting “smart growth” would be “smart codes.”

But the problem with the term “smart codes” is the same as the problem with the slogan “smart growth.” Pretty soon, everybody starts calling their codes “smart,” even if they aren’t. This has actually happened with lots of really atrocious developer schemes that have masqueraded as “smart.”

The magnitude of the problem may trump the limitations of the current names for the solution. While some still claim that the real estate meltdown is only a nasty cyclical slump, that’s just whistling past the graveyard. The model is broken. Building and financing generic products (class A office; suburban housing tract; grocery-anchored strip center; business park, etc.) through globally marketable securities has become radioactive. By the time supply and demand right themselves, the un-sustainability of the whole underlying system will be laid bare.

Of course, one can never underestimate what historian Barbara Tuchman called “the march of folly.” Perhaps in the interest of “stimulus” to the moribund economy, we will be willing to spend trillions more to subsidize sprawl. But in the end, as economist Herbert Stein pointed out, “That which cannot go on forever, won’t.”

Before that day comes, we can save untold environmental, economic and social damage by the widespread adoption of coding that respects human scale, restores the proximity of complementary uses, and repairs the damage done to the American landscape and our rich (but abandoned) tradition of creating fine neighborhoods, towns and cities.

Scrap zoning. Adopt coding. Legalize the art of making great places that people cherish, that produce economic value, and that leave a lighter environmental footprint on the land.

Rick Cole is the City Manager in Ventura, California, where he has championed smart growth strategies and revitalization of the historic downtown. He previously spent six years as the City Manager of Azusa, where he was credited by the San Gabriel Valley Tribune with helping make it “the most improved city in the San Gabriel Valley.” He earlier served as mayor of Pasadena and has been called “one of Southern California’s most visionary planning thinkers by the LA Times.” He was honored by Governing Magazine as one of their “2006 Public Officials of the Year.”