RMLUI Legal Corner: Checking in on form-based codes in Western communities How’s that Working for You?

by Elizabeth Garvin, AICP, Denver, Colorado

As part of the Rocky Mountain Land Use Institute’s 25th anniversary year, we are going to take a look at where we’ve been and where we are going with a series of land use and legal issues. We will start with form-based codes in the West and we are looking for reader feedback about how these codes meet your community’s needs and what tweaks and edits you would like to see to make them work even better. Participate in our survey at www.law.du.edu/forms/rmlui/discussion.

A. Form-Based Codes: Overview

Form-based codes (FBCs) have been available as a zoning approach in various incarnations for about 30 years now. According to The Code Study, a collaborative effort to track the development and adoption of form-based codes, there are currently 584 codes that meet the criteria for form-based codes established by the Form-Based Codes Institute, 344 of which have been adopted.1  Of the full Code Study listing, only 40 codes appear to be located in Western states (not including California), so depending on where you work as you read this, you may not have seen a form-based code in action in your part of the world yet. Like previous “new” approaches to zoning,2 this design-based method of regulation has moved along the zoning continuum from its outsider start as an exotic, fringe technique to its current status as a fairly mainstream and well-recognized tool, helped not in small part by the persuasive advocacy of planners and architects who firmly believe that form-based codes are the remedy to physical design issues caused in many communities by more traditional zoning techniques.


Originally, our question for this column was “do form-based codes work?” We wanted to know if the buzz around form-based codes could be followed-up by any conclusions about whether or not they deliver as promised. The evidence available so far about the effectiveness of form-based codes, however, appears to be primarily anecdotal, and it may be too early to draw conclusions about whether form-based codes perform as promised.


We found that while there are many articles available on the internet authored by form-based code proponents that identify the advantages of form-based codes over traditional/conventional/Euclidean codes, there are relatively few scholarly studies currently available. Most of the scholarly articles identify a lack of objectively tested and measured outcomes of form-based code development versus traditional code development that support conclusions about either approach.3 A few student theses where the potential outcomes for both code types are identified for different communities have mixed conclusions about the benefits of form-based codes. And a recent study by Michigan State University Extension concluded that there are no benefits to using form-based codes in rural settings in Michigan.4


This lack of study or measurable conclusions about form-based codes, however, does not mean that they don’t work. If the planning profession used a strict standard of objective and best-case regulatory outcomes, we certainly would have figured out a better way to measure and establish off-street parking requirements by this point. Form-based codes are still relatively new in the zoning game, and they are evolving quickly as more communities adopt this approach, and more projects are actually built. Many of the current crop of form-based codes were put in place just before or during the Great Recession and we are only now starting to see the private development sector return to levels that will let communities know if these codes are working.


So, we will switch gears for this article and explore the drafting and adoption process. A very unscientific survey of planners and designers identified some repeated “lessons learned” that we will explore in this column.


Lesson 1: Not everybody “gets” form-based codes

It might be useful to liken form-based codes to smartphones. Most of us have heard of smartphones; many of us somehow decided that we needed a smart phone. And some of us, upon getting our smartphones, had no idea how to make it do all of the things it could do. This is a recurring theme in discussions about form-based codes – not everybody who will be using the code really understands the code. If your community is considering preparing a form-based code, the very first step should be to make sure that people who are not experienced planners, such as elected officials, development professionals, and residents, can get on board with this approach.


What are FBCs? Form-based codes are designed to foster “predictable built results and a high-quality public realm”5 in a community through the application of a series of place standards (neighborhoods and blocks), public realm standards (sidewalk, street, and parking), and building form standards (features, configurations, and functions). The goal of form-based codes is to be “prescriptive” in identifying the preferred physical development of a community rather than “proscriptive” and simply responsive to a developer’s application that may or may not fit in with everything around it. To those more familiar with traditional zoning codes, this is often described as a shift in the emphasis from use-based regulations to structure-based regulations. Whereas the zone districts and use list (or table) are the heart of traditional zoning regulations, it is the regulating plan specifying the physical form of the community that is the core of a form-based code.6 Following is a really short description of a form-based code’s three key component parts; there are many excellent planning books on the subject if you want to learn more.

A. Regulating Plan

A regulating plan that is comparable to an area plan or specific plan, the regulatory plan establishes a very specific future development map. A regulating plan has characteristics similar to a very detailed development plan and/or preliminary plat - with the only difference being that creation of the regulating plan usually precedes development, whereas the development or plat are part of the approval process. The regulating plan pulls together both the building form standards and the public space standards described below and applies them to the community, typically at the lot or block level.

B. Building Form Standards

Building form standards are the regulatory requirements for the various individual building types recognized in the community. Many of the standards contained in the building envelope standards are also included in traditional regulations, the physical design focus of form-based codes give these standards different importance. This was well described to me as follows: traditional zoning identifies a regulatory black box on a lot for the applicant to fill; form-based codes fill that box with a structure that works in the community context. For example, while height restrictions may be a static or even throw-away (or completely missing) standard in traditional regulations, in a form-based code building height is an important standard that is used to ensure that all of the structures in a specific area “fit” together. A similar change is made in building or setback lines – form based codes guide the exact location of the structure on the site while conventional regulations delineate those areas where the structure cannot be located. This could mean the difference between homes that line-up along a residential street and homes that are located in a variety of places on the lot.

C. Public Space Standards

Public space standards regulate streets and public spaces. Creating walkable communities is a core tenent of form-based coding, so the street standards are both pedestrian and automobile-oriented. These standards include:

 

  1. The design of individual street types (also called thoroughfares but that’s always harder to spell) with travel lanes, bike lanes, parking areas, and sidewalks;
  2. The design and connectivity of the overall street system; and
  3. Required streetscape standards.

Lesson 2: Apply Form-Based Codes where they will be effective

Form-based codes are most effective in walkable environments and places in your community where the physical form is either open to definition or stable. This lesson is a little more controversial than the first lesson; FBC advocates will tell you that form-based codes work everywhere in the community. This may be true, however, form-based codes are designed to create and work in walkable, urban environments. Walkable environments exist in a variety of areas in communities of all sizes, including mixed-use development, greenfield development, or in a commercial/retail setting. Go ahead and establish form standards in these areas. Form-based codes can also be very successful in identifying and reinforcing the form of a set and stable area of a community, such as downtown or a commercial corridor.


Form-based code standards are more challenging to apply and may need to be more flexibly drafted to apply in an area that is redeveloping and is held in multiple ownerships. In non-form-based speak, this is recognized as redevelopment, and it can be challenging. According to Don Elliott, FAICP, and a national planning consultant, “once streets and lots have been designed, and buildings and infrastructure have gone in, many aspects of urban form have been established. They can be changed, of course, but that often takes a long time and significant investments of (usually public) money.”7 If your community is considering adopting a form-based code, give some thought to putting it in a place where it will be effective.

Lesson 3: Market demand can be a design issue

It may seem that market demand is a use issue - if our community has enough residents, then we will see more coffee shops downtown. True enough. But market demand is also a design issue. In an effort to achieve good design, a community might establish a two-story minimum height for commercial structures but some desired developers, such as grocery stores, will only build a singles-story structure. A report on form-based codes from Mount Holly, New Jersey, identifies a similar issue:


“The historic storefront pattern in Mount Holly is narrow and deep because that layout suited 19th and early 20th century merchants who kept their clients in the front of the store and their stock on site in the rear. Clients did not browse; merchants fetched items for them. Today, clients like to browse, and merchants manage stock differently. At least one-half of the deep, narrow ground floors are wasted. The consultants helped Mount Holly fashion the form-based code to comport to real estate demands.”8

Because of the potential conflict between required design and market preferences, it is a good idea (and probably a best practice) to prepare a market study for the area being regulated. Once the regulations have been drafted, they should be subject to a round or two of code testing (another best practice) where an architect or developer determines what can be built on different sites under the regulations. Planning staff should then consider the link between the test results and the market analysis as part of the final code refinement process.

Lesson 4: Align project review with community expectations

A mantra of form-based codes proponents is “make the good easy.” In the form-based codes process, one way this is done is by front-loading the public involvement process. The regulating plan and conceptual design criteria are typically established through an on-site, open invitation public charrette process.  Members of the community are invited to provide feedback about preferred design options through visual preference surveys, design meetings and workshops organized over a concentrated time frame, and then feedback on the draft regulating plan and form standards. The regulating plan and standards are then adopted by the governing body.  In many communities that adopt form-based codes, this is the end of the public input process. Unless a proposed project is not in compliance with the regulations, the project is approved administratively, without any further notice to the neighbors.


Neighbors, even though they may well have participated in the code adoption process, are the group most likely to act out in unpleasant ways if they are not notified of new development. While the intention to limit additional input and comment for conforming projects is correct in terms of streamlining project approval, there is no legal requirement that recommended form-based code procedures be adopted with the new form-based code. And indeed, as projects become more complicated, and more code interpretation is required there are more legal reasons to opt for a higher-level review process.9


Your community can decide to proceed in a variety of ways to allow public input in the development approval process – maybe small/simple projects get administrative approval but projects with community impact get a standard public hearing; maybe general commercial development gets administrative approval, but downtown development gets a public hearing; or maybe any project that includes significant changes to public infrastructure, such as street narrowing, requires a public hearing. The point of public involvement in any of these cases may not be to change the project design but simply to inform the public of changes that will be taking place and gather input that may ultimately improve the process or the code. This would possibly avoid a bitter referendum on the form-based code and the elected officials and staff who adopted it.

Elizabeth Garvin, AICP, is an attorney with Spencer Fane. She serves on the Regional Board for the Rocky Mountain Land Use Institute.

Endnotes

  1. Placemakers, How We Teach (accessed September 2015) (http://www.placemakers.com/how-we-teach/codes-study/)
  2. In case you’re curious, planned unit developments, performance zoning, and conditional zoning (placing conditions on zoning approvals) were all new zoning techniques at one point in time.
  3. See, for example, Matthew Boyer, Form or Fluff?: Assessing the Proposed Advantages of Form-Based Codes for Municipalities (Master’s Thesis, University of North Carolina at Chapel Hill 2010).
  4. Kurt H. Schindler, Form based code/zoning may not be an advantage for rural zoning districts (April 20, 2015)( http://msue.anr.msu.edu/news/form_based_code_zoning_may_not_be_an_advantage_for_rural_zoning_districts)
  5. Form-Based Codes Defined – Form-Based Codes Institute (www.formbasedcodes.org/definition)
  6. If you read my article on dark skies regulations in the May/June issue of The Western Planner, here is where I remind you that the “best” approach to regulations is the one that works well in your community with your staff capabilities and elected official expectations.
  7. Don Elliott, Matt Goebel, and Chad Meadows, The Rules that Shape Urban Form (APA PAS Report No. 570).
  8. Delaware Valley Regional Planning Commission, Form-Based Codes: Lessons Learned from a Mount Holly, NJ Case Study (March 2012)( http://www.dvrpc.org/reports/12071.pdf)
  9. Robert J. Sitkowski points out that “it is naïve to argue that if the regulations are extraordinarily prescriptive, they are self-implementing in the local government context. Somebody in local government still needs to administer and interpret the regulations.” Form and Substance: What Land Use Lawyers Need to Know About Form-Based Land Development Regulations, 30 Zoning and Planning Law Report 3 (March 2007).
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