Understanding the Legality, Process, and Contents of Form-Based Codes
Mark L. Gillem, PhD, AIA, AICP
Associate Professor, University of Oregon,
Principal, The Urban Collaborative, LLC
Barry I. Gordon, AICP
Adjunct Research Associate, University of Oregon
Planner and Chief Operations Officer, The Urban Collaborative, LLC
“Decree Reversed”
With these two words, the U.S. Supreme Court settled the issue of government regulation of private property. Village of Euclid, Ohio, et al. v. Ambler Realty Co., 272 U.S. 365 (1926) overturned the ruling of the U.S. District Court for the Northern District of Ohio and weighed in on the emerging practice of zoning. With the ruling in place, local communities could regulate the uses, heights, and morphologies of private property development. This ability is what allows zoning codes in general, both Euclidean and form-based codes, to exist on a nation-wide basis. While the former have been widely credited with contributing to the detrimental effects of auto-oriented, low-density development, the latter concentrate on shaping the form of the public realm more than the use of private property.
Part I
Euclidean Zoning:
Unintended Consequences of a Well-Intentioned Idea
The Industrial Revolution set in motion obvious conflicts in the use of land not readily apparent in an earlier era. Factories and slaughterhouses, for example, were encroaching on residential zones and impacting livability in a way that many considered detrimental. The Supreme Court recognized this problem, noting “Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.”[1] Euclid village leaders had been very concerned about the potential use of a 68-acre vacant parcel of land owned by the Ambler Realty Company and wanted to ensure that any development on that land was consistent with the community’s goals of remaining a village rather than becoming an industrial suburb of Cleveland. To protect the character of the land, in 1922, the local government passed an ordinance that applied to all land in the village and placed on that land development restrictions related to building uses, building areas, and building heights.
Regarding building heights, the ordinance called for three height districts, “In class H-1, buildings are limited to a height of 2 1/2 stories, or 35 feet; in class H- 2, to 4 stories, or 50 feet; in class H-3, to 80 feet. To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc.”[2] The Court found the height restrictions reasonable:
“There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. See Welch v. Swasey, 214 U.S. 91, 29 S. Ct. 567; Hadacheck v. Los Angeles, 239 U.S. 394 , 36 S. Ct. 143, Ann. Cas. 1917B, 927; Reinman v. Little Rock, 237 U.S. 171, 35 S. Ct. 511; Cusack Co. v. City of Chicago, 242 U.S. 526, 529 , 530 S., 37 S. Ct. 190, L. R. A. 1918A, 136, App. Cas. 1917C, 594”.[3]
Regarding building areas, “The uses of Appellee’s (Ambler’s) first six hundred twenty feet of land do not include apartment houses, hotels, churches, schools or other public or semi-public buildings. The use of the next one hundred thirty feet of Appellee’s land includes all the uses excluded in the first six hundred twenty feet, except that the use of the second one hundred thirty feet excludes industries, theatres, banks and shops.”[4]
Regarding uses, the ordinance was quite specific and stated as follows:
The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-1 is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries, and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds, and recreation buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, telephone exchanges, fire and police stations, restaurants, theaters and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs, and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substations, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks), and distributing stations for central store and commercial enterprises; U-5 is further extended to include billboards and advertising signs (if permitted), warehouses, ice and ice cream manufacturing and cold storage plants, bottling works milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning, and dyeing establishments, [272 U.S. 365, 381] blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesroom; U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper, and rag storage, aviation fields, cemeteries, crematories, penal and correctional institutions, insane and feeble-minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-1, U-2, U-3, U-4, or U-5 use. There is a seventh class of uses, which is prohibited altogether.[5]
This rather extensive list of allowed uses set the stage for what became known as “Euclidean zoning.” Ensuing zoning ordinances enacted around the country focused almost solely on similar and frequently longer and more confusing lists of allowed and disallowed uses on private property. The prioritization of regulating land-use came at the expense of a careful regulating of heights and areas consistent with a vision for a community’s development. In short order, planners developed model codes for communities around the country and standardization of land use patterns became the norm. These model codes resulted in land use and zoning maps that regulated development in a consistent if not overly specific manner.
While the geographic extent of each zone varied by community as a result of natural, cultural, economic, and political circumstances, one end result was a surprisingly consistent morphology across the United States: mixed-use historic urban centers surrounded by low-density, automobile oriented suburbs. Euclidean Zoning thus devolved into single use zoning whereby lines and colors on a zoning map separated even largely compatible uses. Identifiable and segregated districts for shopping, working, and living became the norm. Even areas for living were segregated by type with apartments separated from single-family homes. The Supreme Court had recognized that zoning must be defined locally and vary “…with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.”[6] An unfortunate and certainly unintended consequence of Euclid v. Ambler was a hyper focus on separation of land uses.[7]
A key point to remember is that civic leaders in Euclid, and presumably many of the citizens of the village, wanted to maintain the village character of their home. That was their vision and they crafted a legally defensible zoning code to achieve that vision. Arguably, what is missing from most applications of Euclidean zoning today is the implementation of a clear vision for development that goes beyond segregating land uses.
The problems of Euclidean zoning are numerous, have been well documented and have resulted in converting much of America’s landscape into a vast suburb. “In the United States today,” says geographer Richard Harris, “no place seems more familiar than the suburb.”[8] It is recognizable because it is so ubiquitous. Over half of America lives in the suburbs.[9] J. B. Jackson calls this a national style of spatial organization and claims the proliferation of familiar landscapes is an American tradition. “There are landscapes in America separated byhundreds of miles that resemble one another to a bewildering degree.”[10] The landscapes that have resulted after the adoption of Euclidean zoning have several common characteristics:
1. Clearly Segregated. Suburbs are not simply residential enclaves. They include segregated space for all the functions of life: sleeping, working, shopping, and recreating to name just four.[11] They must have color-coded land use plans that segregate compatible land uses like offices and retail shops. What results is a landscape that can only be accessed by automobile. Walking from one zone to another is often a hazard since sidewalks are an afterthought in many installations.
2. Auto Focused. Since Euclidean zoning divided development patterns into separated use zones, moving from one zone to another typically involves a car. The days of walking from home to work to a restaurant are long gone. Americans primarily get around in their cars. On average, as of 2013, Americans drive 7,900 miles per capita. For a household of four, that equates to just less than 32,000 miles per year.[12] In American suburbs, the average family spews over 33,000 pounds of carbon dioxide into the air. On a per capita basis, Americans drive 30% more than Germans and more than double the miles of the Japanese.[13] Since automobile ownership costs roughly $9,122 per car per year, this pattern is expensive.[14] From poor air quality to consumptive land use patterns, the auto-focused lifestyle that is in part a result of Euclidean zoning is, according to the EPA, probably a “typical citizens most polluting daily activity.”[15]
3. Abundantly Paved. As architect Douglas Kelbaugh notes, “Suburbia may be paved with good intentions, but mainly it is paved.”[16] In most American cities, over half of the land is given over to roads and parking. For example, Little Rock devotes 61.2% of its area to roads and parking and Milwaukee devotes 54.1%.[17] This paving comes with its own operational and environmental costs.
4. Widely Spaced. The need for roads and parking necessarily increases the distance between buildings, making other than automobile trips very difficult. This can be measured in part by an area’s Floor Area Ratio (FAR), which is the amount of building area on a piece of land. An FAR of 1 indicates 1 unit of building area for 1 unit of land. In many American suburbs, the FAR is less than 0.5. By contrast, in Japan, most cities have an FAR of over 2.0. While a 2.0 level FAR requires the use of multi-story buildings, the reality is that average building heights between the U.S. and Japan are not significantly different. Rather, the difference is due in part to higher land coverage with lots in Japan seeing a coverage ratio of 50% to 80%. This is made possible in part by reduced need for land devoted to parking lots and roads as a result of the more mixed pattern of land uses in Japanese towns and cities.
PART II
THE LEGALITY OF ALL ZONING
Partially in response to the problems of Euclidean zoning, the concept of form-based codes emerged in the mid-2000s as a way to codify the designs of New Urbanists and other advocates of more compact development patterns. The book, Form-Based Codes[18], appeared in 2008 and the Form Based Code Institute[19] began operation in 2004. A form-based code is simply a zoning code based on a desired form. The form comes before the code rather than after, which is the case with Euclidean zoning. Both types of codes rely on the legal ability to regulate the use of private property without a taking to avoid nuisances that can emerge when incompatible development occurs in the absence of a clear vision. The linkages between regulating private property, takings, and nuisances are relevant points to consider.
Regulating Private Property. As is the case with standard zoning codes, form-based codes regulate the use and development of private property. Because form-based codes oftentimes regulate in a more robust way than standard codes, the legality of form-based codes can become a point of debate. But the regulation of private property for the public good is, in fact, a legitimate use of police powers. This debate is not new. In the fledgling United States of America, politicians, academics, and the public debated the concept of private property rights as part of the adoption of the Bill of Rights as far back as 1791. As scholar Harvey Jacobs notes, the concept of private property is anchored in the Fifth Amendment to the Constitution that states, “…nor shall private property be taken for public use, without just compensation.” Jacobs notes that, “With this phrase, the Constitution formally recognized four concepts: the existence of private property, an action denoted as taken, a realm of activity which is public use and a form of payment specified as just compensation.”[20]