Braving the New World of Performance-Based Zoning

Conventional zoning is an outdated barrier against good urbanism, but there's disagreement on the best way forward.

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Serdar Tibet/Shutterstock.com

Today's topic is zoning. But before you reach for that double espresso, consider that there is really some exciting stuff going on in the field, fueled by Silicon Valley-level innovative thinking.

Most people might think of zoning as the province of white-haired volunteer boards, but in an increasingly developed world, it has a larger importance. Codes that guide development are the DNA of human settlement.

The problem is that most zoning hasn’t changed with the times, for nearly a century now. It’s like having traffic rules and manufacturer regulations based on the Model T.

A short history: The landmark 1926 Supreme Court case Euclid v. Ambler Realty confirmed the authority of local governments to lay down the law on building—literally. Zoning, in legal terms, is considered part of police powers, enforcing health and safety. A hundred years ago, cities were increasingly congested and dirty places, and planners sought to spread things out and separate noxious uses; a tannery shouldn’t be next to a townhouse, and so on.

The principle of separation of uses led to the color-coded zoning maps pinned up in most town halls: residential here, commercial over there, and industrial over by the other town’s border. But the approach is pretty much entirely inappropriate for urban development—and especially infill, downtown, and transit-oriented development.

Conventional zoning is downright sinister in the ways that it forms a barrier against good urbanism. It prohibits live-work arrangements, residential over retail, and all other manner of the mixed-use environments that are proven formulas for vitality, walkability, and convenience. Outdated and NIMBY-driven codes ban accessory dwelling units and the occupation of carriage houses and in-law apartments, as well as infill cottages—building smaller dwellings on empty portions of already-developed residential land—which would instantly increase the supply of affordable housing.

And zoning has another attribute, typical of a system long overdue for an overhaul: all kinds of loopholes and amendments, layered on like barnacles. For instance, the “approval not required” clause in Massachusetts doesn't give the local planning board any say on development, as long as it fronts on an existing street. A coalition has tried to get reform legislation passed for years, but the homebuilders lobby has blocked a full vote (and the subject is so obscure, it’s hard to get anyone to care).

What to do, then? The 1960s and 1970s saw a fresh take with conditional zoning, special permits, and planned-unit developments. Credit New Urbanism for drawing attention to the need for new codes around the beginning of the 1990s: When neo-traditional planners went to build the equivalent of a New England town square, they found it was illegal.

In the 21st century, the most notable innovation has been the form-based code. It is less concerned with the use that goes on inside buildings and more with their appearance and the way they relate to each other and shape the streetscape in the context of a vision for a neighborhood. The most high-profile adoption is Miami 21, but a surprising number of cities have taken the plunge, including Denver, Cincinnati, El Paso, Nashville, Fort Worth, and nearly two dozen others.  

Joel Russell, executive director of the Form-Based Codes Instituteyes, there is such a thing—has said he hopes to take things to the next level by emphasizing the benefits of a code overhaul to a broader public. He is taking the campaign on the road in the coming days, to the Future of Places conference in Buenos Aires.

Some of the most out-of-the-box thinking is coming from (where else?) the Bay Area, with the adoption of “performance-based zoning.” In the city of Fremont, the city council chose a new path for a nearly 900-acre parcel anchored by a future BART station, set for massive redevelopment. Planners started with a set of goals—a certain number of jobs, a certain number of homes including affordable homes, and critically, strict standards for a low carbon footprint. However developers achieve all that is their business.
 
“We wanted to get away from the usual laundry list—You can do this, this is a conditional use—and instead say that, if you can achieve this, you decide about the uses,” said Noah Friedman, senior urban designer at Perkins + Will and force majeur behind the Warms Springs South Fremont Community Plan. The zoning, approved by the city council, “doesn’t tell you how to achieve the standard, just that you need to achieve that standard.”

The former Toyota plant site, a regional hub soon to be strategically accessible, is envisioned as a “workplace TOD,” including 9.6 million square feet of light industrial, research and development, office, convention, retail, entertainment, hotel and residential development. The targeted 19,390 jobs and 4,000 homes can be phased in over time.

The performance-based approach is also being tested in the Atlanta region, where planners are rethinking the framework for light industrial development in a world where there just aren’t a lot of tanneries anymore. It’s a zen approach to setting down the rules: zoning without being zoning. Or call it Zoning 2.0, though like a lot of garage startups, the concept can be traced back many years. The notion of judging development by its impact rather than its use categories can be found in the 1980 book Performance Zoning—and who doesn’t have that on their shelf?—by Lane Kendig. The concept never took off quite the way its initial backers hoped, however, with several local governments giving it a try and then abandoning it. The Fremont experiment represents a new hope as performance-based zoning gets fined-tuned and draws from the framework established by LEED, the green building standard.

Devotees of form-based codes suggest there are good things about performance-based zoning, but that it’s not the answer unto itself.

“The critical thing is to zone for what will create great places, rather than to zone simply for sprawl, as has been mindlessly done for decades,” says Russell. “The problem isn’t zoning per se—it’s zoning that requires all the wrong things, few of the right things, and well-intentioned, piecemeal amendments that have made an incomprehensible mess.”

Different views of the best way forward sure sounds like foment to me. And that may be the best sign yet that zoning is entering a new phase of disruption: a little Apple vs. Microsoft-style rivalry.

Bring it on. Explore the frontier. Anything’s better than the mainframes we have now.

(Top photo via Serdar Tibet/Shutterstock.com.)

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