Star Ford

Essays on lots of things since 1989.

Form Based Codes Proposal

on 2007 September 12

Comments from Ian on Form Based Codes draft 9/12/07

Albuquerque form-based codes are here:
http://www.cabq.gov/council/completed-reports-and-studies/form-based-code

The following comments lay out an urban land use policy that is cheap, sensible, and constitutional.

1.

There are vast benefits of rescuing our city from the rule of automobiles – ranging from personal health and safety all the way to curtailing global climate change. For me, urban form is a key piece of the big ecological picture. It is for this reason that I’m so interested in getting the Albuquerque form based codes right.

2.

The intent of the code as written in the first paragraph includes very important goals, which form-based codes could potentially help achieve, but I am not clearly seeing the connection between those goals and the actual prescriptive rules throughout the 100+ page document. I found I was asking myself “why this rule? why that rule?” while reading through them. It feels like a mantra that we are being encouraged to follow blindly.

It’s unclear what incentive would exist for a developer to adopt these codes over conventional zoning. It seems like significantly more rules to comply with than the conventional system. It seems like the codes as written would only have a small effect, and would be vigorously opposed by some, and remain controversial if adopted.

I’m also concerned about the contradiction between Constitutional freedoms and the extensive control over the details of private property that is being proposed here, without justification. Laws should in general err on the side of freedom and should be about protection from specific bad things – when laws get too far towards requiring specific “good” things, we are no longer a free pluralistic society.

To summarize my main concerns, they are that the code as written may be (1) unconstitutional and (2) ineffective at what it set out to achieve.

Let’s get back to the basic purpose of zoning – to protect people from harmful effects of their neighbors’ property. And let’s use form-based codes in a more simple, direct way to mitigate some classes of harm. But there are other ways to mitigate harm, and a code on urban forms should not get expanded and mixed up with other strategies in an attempt to correct a large number of vaguely defined social ills.

3.

I’d like to see a land use code written to clearly answer “what or who are we defending?” and “what are we defending against?” It should be transparently obvious to the reader how any proposed rule is justified by basic rights, and more specifically, how it prevents a harm. For example, an office building having non-articulated facades is not harmful; therefore such a facade should not be banned. On the other hand, an auto body shop is harmful to neighboring properties in terms of noise, traffic, and air emissions; so we have the collective authority and responsibility to control that activity to protect our rights to peace, safety and clean air.

In 1996, I wrote a paper in which I argued that there are four classes of defense that justify land use controls. Here is a summary of those classes:

  • Defense of the natural environment against human impact.
  • Defense of people against cars, and more generally, the defense of people as they travel or are in public spaces.
  • Defense of the peace between properties, meaning the control of harmful effects from a parcel on neighboring parcels.
  • Defense of people’s homes and real property against economic pressures that devalue land and separate people from their land.

Form based codes could have an impact in all of these classes, and I think the remaining work is to make the case for each rule based on who it defends, what it defends against, and whether it is easily measured, enforceable, and effective as intended.

4.

Here are some ideas about what could be removed to simplify the code:

  • Remove the zones – By this I mean only have one zone, and use a different mechanism to control the rate of change of an area or the discrepancy between adjacent parcels.
  • Remove all references to sustainability. This is legally vague, and whether something can be continued forever is totally unprovable.
  • Remove references to land uses, such as “commercial” or “residential”. It should specifically state that land uses are unregulated. One of the insights of form based codes is that we no longer need to regulate uses. A space could be used for a while as an apartment and thereafter as an office, for example.
  • Remove parking section.
  • Remove street classifications.
  • Remove materials section.
  • Remove the lighting section.
  • Remove rules pertaining to dwelling units per acre or FAR measures.
  • Remove all responsibility of developers to be a certain distance from a transit facility. We are not asking developers to run a transit system, so it’s not their job or decision where to site facilities.
  • There are a few rules buries in the “definitions” section, like glazing and massing. The definitions of “road” and “street” are so narrow that they are almost like road-building codes buried in the definitions.
  • There is no clear reason to buffer open space with large lots. High density can also border on open space.
  • Remove rules about energy efficiency, archeology, and nature preservation, which inexplicably show up only in the large lot zone. These subjects deserve individual treatment, but not in the context of form based codes.
  • Remove the word “vernacular” and anything else that legislates taste. Words like this are an invitation to endless legal battles.

5.

Here I offer a framework that I think would be less contentious, much shorter, and more effective. It is based on continuous organic improvement, without the use of blanket one-size-fits all rules or legislated tastes. The three pillars of this framework are (1) noise and other activity restrictions, (2) harms caused by building and street forms, and (3) rate-of-change control. It’s tempting to build a legal structure for each of the four classes of defense outlined above, but recalling that this code is only meant to replace traditional zoning code and only with rules about building and street forms, the task is much lighter.

First pillar: Three important harms that form-based codes cannot protect against – which should be treated separately – are: noise, air/water emissions, and light pollution. These harms are more properly structured as a zone or permit system. Noise is a factor that I think could single-handedly replace much of traditional zoning. By enacting a zoned noise ordinance separately that regulated actual measured noise levels, people may not be tempted to try to regulate noise through indirect means (such as building forms, economic sector, or nature of business – which are not necessarily correlated with noise). So this first pillar is nothing to do with form-based code, but it is an important thing to do.

Second pillar: I have listed four harms, and for each one, I have listed one or more ways in which building and street forms can mitigate the harm.

Harm: Isolation & circuitous travel caused by building and street forms

Justification: We should not have to take large detours to get places, or walk long distances, or be unable to walk because the distances are too long. Public space should be well connected, and landowners should not have the right to block straight routes or prevent pedestrian and wheelchair connections.

Some simple rules that can mitigate this harm are

  • Live-end sidewalks and paths.
  • 2.0 or better street connectivity ratio (the best rule in the entire draft plan, in my opinion)
  • Variation in parcel and building sizes – you can’t have too many very large contiguous lots.
  • At least 85% of a building perimeter must have a pedestrian path around it with the following characteristics: It is no more than 15 feet from the building, crossing traffic lanes may be no more than 15 feet wide, and there must be 20 feet between crossing traffic lanes. (You can use your allotted 15% non-friendly perimeter for a loading dock, for example. Warehouses requiring more than 15% truck access would have to provide a pedestrian bridge or other route.)

Harm: Personal vulnerability caused by building and street forms

Justification: We should never feel threatened or cornered in public spaces. Traffic should be separated from, but not take precedence over, pedestrian space, due to its inherent danger.

Some simple rules that can mitigate this harm are

  • “Eyes on the street” rule: Every building must have windows facing every adjacent pedestrian path (at least one every 20 feet), and those windows must genuinely and routinely project the exterior view to the occupants without blockage of intervening objects, in whatever way is appropriate for the architecture. (For example, complying windows in a house would have to be in rooms designed as living spaces, not storage rooms.)
  • Pedestrian paths must be protected from parallel lanes of 25-mph or greater traffic by at least one of the following at intervals of 25 feet or less: a parking lane, street furniture, boulder, landscaped area of 6×6′ or larger. Where the street design speed is slower, the speed must be enforced by passive measures such as lane shifts, median boulders, speed bumps, or roundabouts.

Harm: Discomfort or displeasing views caused by building and street forms

Justification: We should not be subjected to a visual field of advertising, clutter of utility lines, or monotonous walls, or be too far removed (visually or physically) from the natural living ecosystem. Urban forms should not exacerbate or ignore the effect of the elements such as heat, glare, mud, and ice. Landowners should not have the right to deaden public space, or drain it of its soul and beauty, or otherwise make it unsuitable for human use.

Some simple rules that can mitigate this harm are

  • A street level view of a distant natural feature must be available at intervals of one-eighth mile or less.
  • Signage must be building-attached and may cover up to 10% of a building’s surface.
  • 30% of pedestrian paths must be shaded with trees, awnings, or other devices.
  • Pedestrian paths must be built to drain.
  • Developments larger than 3 acres must meet or exceed the average attractiveness rating of surrounding development, as measured by independent polling.
  • Rules for parking lot design to be taken from current rules.

Harm: Encroachment of development on agricultural land

Justification: This is partly in defense of the natural environment, unlike the other harms. In our area, the river and surrounding land (mainly the irrigated land) is an essential part of the ecosystem, and should not be paved over.

Some simple rules that can mitigate this harm are

  • Must keep 60% of irrigated land covered with plants.

Third pillar: “Change control” is my term for preventing rapid change where change is not desired, keeping change consistent with existing forms where desired, and handling existing cases that are hard to bring into this framework, such as manufacturing and gas stations.

First of all, it’s worth noting that most new manufacturing can fit into this framework at a reasonable cost. A factory can have trees, walkways, and small parcels around it, and still have large roadways connecting it. That would make it a better place to work. Gas stations can have perimeter walls with awnings.

The change control rules can include geographical limits, such as a height restriction – 20% taller than the tallest neighboring building. Or, diversity restrictions, so height or some other feature must be different than existing buildings.

Change control rules can also include rate-of-change limits, so that a change is permitted based on the status of neighboring properties 10 years prior. This would permit gradual change and allow time to adapt to change.

If residents/owners want to redevelop, then change control rules should be suspended to allow rapid change.

6.

Would this framework be widely supported and used? I realize many people have put in a lot of time into this already, and completely restructuring it may seem like too much work. But I think it will be easier to re-work it than to fix the the current draft, get support for it, and get it passed, implemented and enforced.

The “deal” offered to developers with the framework offered here is “IF you comply with these simple rules for building and street forms, and the noise ordinance (and possibly other related ordinances), THEN you don’t have to comply with traditional zoning.” That’s a deal that would be attractive to developers. It would be Constitutional, more widely supported, more easily enforced, and therefore far more effective. Some elements that may appear to be “missing” here, such as setback requirements and maximum parking requirements, will be taken care of by the market if the public authority is less heavy-handed. Owners want to maximize the value of land, so there is an incentive to limit setbacks and parking. We should not control what there is an incentive to do anyway.

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