Form over use: form-based codes and the challenge of existing development.

• Author: Woodward, Katherine A.

INTRODUCTION

My grandmother spent most of her adult life in Brownsburg, Indiana, a suburb of Indianapolis. When she first moved there in the 1950s, it was a traditional American small town. There was one stoplight at the corner of Main and Green Streets, with a two-block downtown area featuring a bank, a mom and pop drug store with a soda fountain, a movie theater, a restaurant, a bar, and a cafe. Just a few minutes' walk down the sidewalk was the public library. The owners of these downtown businesses lived above their stores in apartments. My grandparents' first house was on O'Dell Street, a residential, tree-lined street within walking distance of the downtown area. Everyone knew everyone, and my mother complained that she couldn't go to the drug store without her parents hearing about it from nosy neighbors.

Over the years, however, more and more cars began crowding the narrow streets, and a one-stoplight town became two, then four. My grandparents moved to a house a mile outside of town, surrounded by cornfields, to get away from the traffic and noise. Eventually, the buildings at Main and Green were razed to make room for expanding streets, and the library was moved to the far end of town. In their place, large shopping centers with huge parking lots were built. No one walked on the sidewalks anymore because everyone needed a car to get where they wanted to be in a practical amount of time. The town began to sprawl out in cookie cutter subdivisions, office parks, and strip malls. For most of my childhood, my grandmother complained about all the "new folks in their ugly houses" and the "endless construction" in town, but was mostly immune to these changes in her little house amidst the cornfields. Then, a farmer nearby sold his lot to a developer who would build another subdivision, and another farmer across the street sold his lot to a church. Sprawl had finally come to her backyard.

Today, on the corner of Main and Green Streets, there is a CVS on one side with a large, and usually empty, parking lot, and a bank on the other with an equally large, empty parking lot. In fact, in Brownsburg's new proposed zoning ordinance, over eleven pages are dedicated to parking standards and requirements alone. (1) The town is dominated by big box retail stores, fast food restaurant chains, and large thoroughfares allowing residents to travel in their cars from home, to work, to school, and to shop. In fact, they cannot get to any of these locations without traveling in their car.

The reason Brownsburg has transformed from the cohesive, community-oriented small town it used to be to the sprawling, commercial, unremarkable place it is now is conventional, or Euclidean, zoning ordinances. By mandating single-use zones, such as residential, commercial, and office, and creating stringent setback, parking, and low-density requirements, conventional zoning incentivizes towns to spread indefinitely, often without a comprehensive plan in mind. (2) This spread then requires amply wide roads to accommodate the amount of resulting traffic, which is unsafe for pedestrians-and daily needs are usually so far away that they are not walkable at any rate--thus, a car-centric, rather than pedestrian-centric, culture results. (3)

If my grandmother were around to see Brownsburg today, she would probably say she liked it better the way it was in the 1950s. And the New Urbanists, proponents of the new zoning alternative called form-based codes, would agree with her. The New Urbanism movement grew "out of widespread dissatisfaction with suburban sprawl," and advocates high density, mixed-use development in place of conventional zoning's low density, single-use pattern. (4) The choice, as New Urbanists see it, is between "either a society of homogenous pieces, isolated from one another in often fortified enclaves, or a society of diverse and memorable neighborhoods, organized into mutually supportive towns, cities, and regions." (5) Their goal is to create pedestrian-friendly communities that mix commercial, residential, and office uses, locating daily needs within a reasonable walking distance and making dependence on automobiles a thing of the past. (6)

In essence, New Urbanists want to recreate the traditional American city and town--the Brownsburg of the 1950s. (7) Form-based codes attempt to produce this result by "controlling physical form, with a lesser focus on land use, through city or county regulations." (8) The primary focus of form-based codes is the design of buildings, rather than their use. Planners using form-based codes are focused on creating a space that is aesthetically pleasing and friendly to pedestrians, designed in accordance with a comprehensive plan including public spaces, tree-lined streets, and narrow roads. (9)

Proponents of form-based codes are enthusiastic and argue that their benefits are almost innumerable. The words of husband and wife team Daniel and Karen Parolek provide a rosy picture:

[C]ity planners are excited to have a regulatory framework that has a clear intent and is easy to understand and administer; developers and builders are enthusiastic about having clear direction from the new regulations and often a streamlined approval process; and residents and elected officials are delighted to see development creating quality places that build upon the unique characteristics of their communities. (10) Despite this excitement, conventional zoning is firmly entrenched in the existing development of American towns and cities, and a move to form-based codes on a broad scale is not easily achieved.

This Note will argue that form-based codes can better serve the original purposes for which zoning ordinances were created in areas of new development. Form-based codes can create towns that more efficiently control traffic, promote public health and sense of community, and make transportation, public goods, schools, and parks more readily available to residents, just as traditional towns once did. Recreating the traditional town in a nation dominated by suburban sprawl, however, is not an easy task, nor can it be accomplished overnight. Communities that have already been shaped by conventional zoning will find it difficult to convert to a new form-based code regime due to existing use-based permits and regulatory controls, in addition to likely resistance from developers and residents who are used to conventional zoning's approval procedures. Areas of new development provide a blank slate for form-based codes to populate, and will prove a useful tool for creating new communities. Form-based codes cannot be implemented on a wide scale, however, while the effects of conventional zoning--such as big box retail, exclusive automobile usage, wide streets with high-speed traffic, and large subdivisions--remain so deeply embedded in our national fabric. Therefore, the most favorable compromise is to allow form based codes to be implemented gradually in areas of new development, while retaining a form of conventional zoning for those areas that have already been fully developed according to that regulatory scheme. When new development is planned in those areas, a phase-out of sorts can begin whereby the planning commission can either grant a variance or special exception for the planned development area and implement a form-based code regime in that area, or the area can simply be removed from the zoning map and developed accordingly.

Part I of this Note will describe the development and purposes of conventional, or Euclidean, zoning, and will then discuss the myriad of problems created by it--most notably, urban sprawl. Part II will survey the response of New Urbanists to conventional zoning, and present the idea of the Transect and the details of the structure and implementation of form-based codes. Part III will explain how, despite their imperfections and criticisms, form-based codes can better carry out the original purposes of conventional zoning, but will likely be limited only to areas of new development. Part IV will conclude.

1. CONVENTIONAL ZONING AND ITS DISCONTENTS

   1. The Advent of Zoning

      Conventional zoning, which "regulate[s] land based on how a landowner uses a particular piece of land," (11) originated as an effort to remedy the dismal conditions of cities in the late nineteenth century. (12) Before zoning, the only tools local governments had available to them to protect the health, safety, and welfare of citizens were nuisance laws and building codes. (13) The first comprehensive zoning code was adopted in New York City in 1916. (14) This new code "categorized land uses, created districts appropriate for those categorized uses, and then transposed the districts, or zones, onto a map of the city." (15) It also included height and bulk controls for buildings within the various zones. (16)

      One of the aims of the first zoning ordinances was to separate factories from residential areas, (17) which resulted in increased life expectancies and significantly cleaner cities. (18) Emboldened by their success in this regard, planners began separating more than simply "incompatible" land uses from the rest; they implemented a "near universal segregation of each primary land-use type from others," creating cities that had separate areas for residential, commercial, and industrial uses. (19) Many local governments went still further, separating single-family homes from multi-family (apartment) housing. (20)

      The constitutionality of this practice was addressed in Village of Euclid v. Ambler Realty Co., (21) when the Supreme Court considered a challenge to an early zoning ordinance alleging that its limitation on uses substantially reduced the value of the plaintiff's property, amounting to a deprivation of property without due process. After holding that the ordinance was a valid exercise of the Village's police power because it had a substantial interest in protecting the public from the harmful...