| | The Planners Task Force Code Project: The Pragmatist Panel |
Transcript of Joel Russell, Richard Bernhardt, Gianni Longo, Ellen Greenberg, Mark White, Paul Crawford presenting toCouncil IV, (independently published), Santa Fe, NM
Transcription by Jason Miller
(independent)
October 18, 2002
[View the pdf]
“…But in the end, when that tipping point comes, zoning codes will be washed away, because everyone hates them …” – Rick Cole
[BEGIN TAPE]
Gianni Longo:
Good afternoon. My name is Gianni Longo, and I will be the moderator of the next panel. The next panel is titled “The Planners Task Force Code Project.” It has an interesting subtitle: “The Pragmatist Panel.” We want to underline this notion.
The old code project came from dialogue that Rick Bernhardt and I had about the need of the planning community vis-à-vis the Congress for the New Urbanism, and the principles and the applicability of those principles in the daily practice of the thousands of planners who make decisions for our communities.
The interesting thing was that the principles and values of the new urbanism—and I found this in my practice because I do a lot of public participation processes—but the principles and values of the new urbanism are percolating down; people in communities talk about walkability, talk about pedestrian environments, talk about quality of life, talk about pedestrian scale, talk about the many things that are embodied in the principles of the new urbanism, which in turn raises the question on the part of the planners, as they see those notions becoming embedded in their general plans and the comprehensive plans.
The question is, how do we go from the principles and policies into the actual implementation? So, therefore: the notion that CNU should look into that and look into the issue of codes, and put together a manual that will deal with that. So this is what this panel is about, and the book is almost ready to go to a publisher.
Let me introduce the panel. We want this to be a very interactive session, so I’m going to introduce the panelists in order of appearance. The first who will speak is Rick Bernhardt, on my left. Rick is, as he said, the token public sector planner in this planner—this whole group.
The second one is Ellen Greenberg. Ellen is a planner and the director of research at CNU.
The third one is Joel Russell. Joel is a land attorney and consultant.
The next speaker will be Mark White. Mark is also a land-use attorney and a planner.
And finally, Paul Crawford, who was introduced this morning. Paul is a planning consultant in California. And myself. We are here to answer any questions we can. There might be questions left over from this morning’s presentation that Paul made, which you might want to raise.
There are four parts to this presentation; let me briefly go over what those parts are about. The first part: Rick will talk about the basic purposes of the code project. And we’ll talk about his experience as the planning director in Nashville, Tennessee.
Ellen will then discuss a little bit of what we’re learning—an overview of what we’re learning with the research for the code book.
Joel will talk about the essential elements that need to go into a CNU-type code—what he calls the “DNA.”
Then, Joel and Mark will talk about how that DNA can be put in play, in the context of existing land-use regulation.
Finally, we’ll talk about how do we ultimately go through the process of approval—what are the procedures that we need to go through to do that?
We want this to be a very interactive panel. We don’t see ourselves giving a presentation, as much as guiding a dialogue among all of you, with questions directed to the speakers as they speak. So, if there is anything said that, in your mind, requires a clarification, or if you have a question related to that, please raise your question as the notion is developed. We also believe that we might actually end up in a different place than our outline shows, as a result of your questions; therefore, we’ll be closer to what your understanding is and what your needs are, as far as this panel goes.
Tom Dolan:
Before you start, there was one thing that really seemed important to me in Peter Katz’s presentation this morning, that I would love to have you all address. Peter made a wonderful case for how we make the public realm and how we make the street a much more livable place, which we all agree on and, more or less, understand. The question I’d like to have you address is how do we get the planning officials and commissioners and developers to buy into that basic truth? How do we get them to love and prioritize making wonderful, livable places as much as we do?
Longo:
That is pretty much what item #4 will do, so in case we don’t address that, come back to us with that question.
Now, in this type of [forum], it’s very typical for the discussion to go all over the place. So we’d like the discussion to be as sequential as possible. And I think this morning was very sequential, so as the presentation moves forward, there will be themes that will be presented; these should be the themes that we interact on.
The final thing I want to say is, if there is some item that we don’t manage to discuss today—if you look at the overall program schedule for the Council, on Sunday morning there is a session, the purpose of which is really to wrap up this forum. We are beginning to put together an agenda based on issues that may or may not be discussed as we proceed today, so if there is something that doesn’t come up or we cannot discuss it because we are running out of time, those are the kinds of things that we can move to the Sunday agenda. So, Rick.
Rick Bernhardt:
(And I’ll try to answer some of your question, there, Tom.)
First, let’s start off: How many public-sector planners are here? I know Ann is here—okay, we have more than I expected. I appreciate that.
One thing that kicked this off was an ever-increasing number of requests of CNU and APA—where’s Bill Klein? I know he’s here—in terms of communities, public-sector planners, primarily; they’re wrestling with this issue: How do I adopt—sometimes I don’t know what they want to adopt—a smart growth code? A new urbanist code? And they’ll wind up with Bill and APA; or Ellen; or, frequently, they’ll get referred to me or somebody else here.
And so, the Planners Task Force, as Gianni suggested, decided to take on the issue of putting together some of the issues of best practices, in terms of codes. And APA has allowed and agreed to publish that as a PAS monograph; I guess it will be coming out soon. Stay tuned! The draft is in the last phases. What we want to do is talk through some of that.
This draft is going to focus on municipal and local codes, options, and alternatives. It is a very pragmatic approach; this is not necessarily the ideal approach, it’s a pragmatic approach to be used by planners in the field in terms of local governments, and focused on that. There has been a suggestion by Scott Polikov that we follow this up—I know of [his] memo that was passed out this morning—with an ongoing manuscript series that would talk about more detail-specific codes in specific communities, and try to build the information on what is happening out there; I think that was a very good suggestion.
I want to start off by talking about some of the experience I have had, and some of the struggles that we’ve had in terms of putting together codes. Paul mentioned—and Peter picked up on it—something that begins to answer Tom’s question: the critical importance of linking the plan to the codes at whatever scale you’re working. The planning process, the development of that plan—whether it’s a jurisdiction-wide or a sector plan, which is part of a jurisdiction, or even a neighborhood plan—what I have found is that is the tool and the technique that assists best in terms of educating the public, the community, and the elected officials.
I’m working with 40 elected council officials who direct what we do in Nashville. If anybody wants to trade councils—I don’t care how bad yours is—we will trade them lock, stock, and barrel: 40 for however fewer you have! We have 35 districts and five at-large; we have fun working with them, as you might well expect!
Prior to coming to Nashville, I was planning director in Orlando for about 18 years. I had the opportunity in the mid-’80s to first wrestle with this whole issue of codes. We found that we had a uniform code for the entire city that didn’t fit. One of the first tools we did—we actually went back to the 1926 zoning code for Orlando, and re-adopted it, updated it a little bit, but adopted it for the older portions of the city. We called that the Traditional City Code. It was my first experience in terms of trying to differentiate, not have one standard code for the entire jurisdiction, and play around with that.
We worked with Andres early on, on maybe one of the first drafts of the SmartCode, or what is now the SmartCode, in terms of doing a parallel code in Orlando, that, for a lot of political reasons, didn’t get anywhere, but led to an awful lot of additional research. We also worked in terms of developing and adopting sector codes that go with specific plans for specific portions of the jurisdiction.
In Nashville, for the last two years, we have taken a number of the tools that we’ve talked about here. In our jurisdiction we have a combined metropolitan government—city, county—the entire jurisdiction is one government for the whole county. One of the first things we did was develop a complete transect map for the county, which provided us opportunities for education. We’ve done a lot of things in terms of education. We have seized our public access TV: We’ve provided them about 25 or 30 different videos that they run instead of RFP requests and job ads. It’s amazing how many people will see a tape on a walkable, pedestrian-oriented community at 3:00 a.m., and make comments about it! So you use what tools you have.
But starting with the transect—actually, we’ve used that transect in some of our larger, county-wide planning, developing a county-wide park plan. At the core of the park plan is an understanding of the transect. For example, we’ve made a very real differentiation on the T3—the sub-urban level—in whether or not neighborhood parks are a portion—an element—of T3. And in working with the community, basically, when you go to a T3 level of the transect—a sub-urban level of the transect—you have internalized the neighborhood park function into your lot, so there is not a community expectation that neighborhood parks would be part of the T3 layer of the transect. That has actually translated itself the plan that has been adopted.
Likewise, on sidewalks and pedestrian and greenway networks, where T3 is convenient to use, there is no expectation in the community, by understanding the elements of the transect, that every street in a T3 neighborhood would have a sidewalk. There are strategic locations for sidewalks that are linking specific uses: a park, a school, etc. But, as a result of taking the transect into broad scale, we’ve been able to translate that into the comprehensive, county-wide plans.
We’ve broken up the county into 14 areas. We’ve developed community plans, which are the structure plan. Again, by using this tool—we’re in our third one now—we’ve basically taken our planning office and we’re doing community charrettes, relocating our planning office, heavy education with the community in terms of understanding what elements we’re talking about, both urban and in greenfield locations, but developing a community plan that has all the structure elements that we’ve talked about, then taking those community plans and breaking them down into neighborhood design plans, which are our basic, neighborhood levels.
Once we have those neighborhood plans—the very first community plan we had—I think we had 18 neighborhoods in north—
Unknown speaker:
21.
Bernhardt:
—21 neighborhoods, and we have completed 14 or 15 of the detailed neighborhood plans. They are very much of a very classical, almost a project level regulating plan. What we’re wrestling with now is providing that link between that plan and the ability to implement it when somebody comes in the door. That’s where the codes component comes in. We’re doing it in terms of a kind of greenfield application and in an infill application.
So we’re wrestling with the ability to use the tools—use the plans—which are our education tool. We have also used trips: We just took planning commissioners and city council members and our staff, to Memphis last Thursday and Friday, as an education tool. We’ve taken them to Orlando and looked at projects, as a way to kick the tires. We’ve taken developers—one of the developers we took to Orlando decided he wanted to build a project and went through the very excruciating process (because we didn’t have the tools in place), and is currently building Lennox Village, which is a fairly classical new urbanist development. It has about 105 acres, and it has all the components, in terms of built around a town center, and mixed uses.
We’ve used that. We’ve used opportunities to talk. We constantly engage the neighborhood; they’re the ones who become our biggest advocate. We have—on our professional part—the challenge of actually coming up with an easy way to translate the plans into action. In our case—in most jurisdictions—it’s going to be almost impossible to develop a completely new code, so what you’re looking at is a parallel, an alternative, area-specific code that can provide people the opportunity to follow-up and follow-through.
So we’ll kick that off and start talking a little bit about where we are. Ellen’s going to share some of what we found on the research.
Ellen Greenberg:
Thank you. I want to start by observing—this morning, someone asked Paul about leadership and whether leadership was essential. I think Rick’s example of the demonstration of the fact that leadership at the staff level—the department level—is really as important as leadership among the elected officials. It’s great to hear him talk about this extraordinary and comprehensive effort, because it’s really a rare example.
Bernhardt:
I don’t know if this is leadership or trying to survive, but: We hired a brand-new public works director two weeks ago, and the first thing I did was call up and offer to pay his way to Seaside in three weeks for the TND Streets seminar. He’s picked up on that and he’s taking three or four staff members. I’m paying his way as the public works director. I’m going to entrust him to Rick Hall. If he doesn’t pick up on things, it’s going to be Rick’s fault!
Greenberg:
I have a few asides. We have forgotten to let everyone know that if they’re not already a CNU member, this is a perfect time to join CNU! And if you are among the attorney members, this is the perfect time to get on the attorneys listserv, which has just started, I think, with the (most recent) Congress, and is functioning, I gather, very productively, and in a very helpful fashion. Is there a planners listserv? There is a planners listserv, and there is a transportation list as well. And Steve Bodzin—Steve, identify yourself—Steve is the director of communications at CNU, and he’d be happy to meet all of you who are here, and find out in which of these ways you would like to participate.
Also, along the lines of business, let me ask if everyone found the handouts for this session on their chair. And I just have to bring to your attention the fact that this box came with the handouts in it; I think it’s an amazing coincidence how this box emulates the R40 building envelope that we saw earlier! So if anyone’s working on a three-dimensional model of the conventional sprawl thing—this is it. This is your R40!
I’ve been working with the task force members on putting together this manuscript on codes. As part of that effort, about a year ago, we decided it would be very helpful to get a good read of what is actually happening in communities across the country that have been trying to implement new urbanism. In some cases, they’re implementing what they call “smart growth,” or this whole array of principles that we’ve been talking about, and to understand what has actually been happening relative to preparation, adoption, and implementation of codes.
So we’ve contacted 22 local governments thus far; we have more on the list that we know we need to talk to. And talked to staff, with the knowledge that this is by no means a foolproof approach, and that we get the staff-colored, filtered view. But we still, I think, have learned a lot of things that we should all bear in mind as we try to contribute to the evolution and the development of the practice, and, for some of us, to contribute to this publication that we’re now trying to wrap up.
We found that there are lots of places trying new things. There are lots of places where staff and decision-makers know that there are very significant problems with their ordinances. They’re trying to change, but very few of these places are trying change that involves throwing out their old ordinances—
[END OF TAPE]
[BEGINNING OF TAPE]
—a set of infill amendments that bring some of the same issues that are addressed in their TND code, into the regulations that address infill activity in their existing neighborhoods. We’re seeing a variety of techniques applied in different parts of communities, and the evolution of the practice in a really positive way.
Most of the activity on the regulatory side is focused on individual districts, rather than a whole city. Sometimes, there’s a huge amount of effort and leadership that is all focused on changing a single zoning district from a district that embodies conventional standards to a district that embodies new urbanist standards. So there are a fair number of examples that are one-district examples. That’s a clue to how difficult it is: the whole planning staff, devoted to revising standards in a single district.
Another common approach is the use of specific plans (a.k.a. area plans)—plans that combine policy and regulation in a single document—the regulating plan is a comparable approach—that address a focused area. In some cases it’s a redevelopment area—Steve Lawton is here; he’s been working very intensively on a regulating plan for the central area of Hercules, Calif., which is, essentially, a redevelopment location. In some cases, they are major greenfield, urban-expansion areas. That is also very common, and it’s being done in a lot of communities where there is a great amount of attention being paid to a single large site, and, perhaps, no change happening in the regulations anywhere else in the community.
Another example that we see quite a bit are floating zones, which are the TND districts that are optional, that can be invoked at the request of an applicant, who then has to meet all the criteria in the zone.
And then we have a handful of cases where there has been a full revision of the ordinance.
So that’s kind of the “menu” of the different things that are going on. And the technique, very often, is tied to what the local objectives are. I would say the single most common objective in all the communities we’ve looked at is the creation of a walkable downtown, mixed-use business district. That is the thing. Again and again, you see communities that are addressing that issue specifically. They may not be trying to do anything else. They’re trying to revive a set of districts or a single district, to do that.
There are places that have focused on transit-oriented development, or simply on providing options. In a lot of cases, the political environment is such that the proponents of the new urbanist approach wind up saying, “It’s an option. Aren’t we in favor of choice?” So they wind up putting a set of parallel options into place that allow for new urbanism, rather than requiring it.
Generally, there seems to be a pretty good understanding of what Joel is going to talk about: the DNA—what are the essential design principles at the scales that these communities are working with? A lot of people “get” that.
I’m going to mention a few problems that we may want to address in our conversation throughout the weekend.
One is that it’s very hard for communities to actually address the different scales of the Charter, especially corridors, which often span jurisdictions. Actually address even the city-wide scale, but certainly the regional scale. Between the fact that there is no legal jurisdiction for regional issues to be addressed in planning, and the fact that the small-focus battles take so much energy, the regional battles hardly ever even have the lines drawn, much less get fought all the way through. I think that is a very great challenge, given what is actually happening on the ground.
Another issue is that these parallel codes, in many places, are not being used. I think they have had a favorable impact in a number of communities, but a scenario we’ve heard about time and again is that a developer who thinks he/she has a new urbanist project will look at the TND code and say, “Well, we have 60 percent of those things, but we don’t have 100 percent of those things, and since we have 60 percent, we’re going to use the old PUD provisions in the code, and we’re going to do a PUD and just put in the pieces that we want, rather than signing up to do the TND and having to do 100 percent.” So that seems to be something that may represent progress, even though it’s not full progress.
Another thing we see is that a lot of communities, even though they understand the DNA, they take the pieces that are most acceptable and easiest to deal with. The issue of mixed housing type, for example, is one that very frequently doesn’t get addressed. You may have the zero setbacks and you may have the form, and kind of the walkable thing and the streetscape and the ground-floor retail, but it’s hard to find good examples of communities that have addressed the issue of mixed housing type.
There’s a challenge in many communities, trying to figure out how to address existing neighborhoods, and whether the focus is on preservation of those neighborhoods or a slow evolution to addressing changes, whether they be in the housing stock, or changes to introduce some other mixed uses. I think that’s very ill-defined; communities don’t necessarily know what is a new urbanist or a smart growth way to address their existing neighborhoods.
Those are some of the issues that we’re seeing. A number of you have helped out with the collection of this information. We’ve had a table on the Web site since August, of the places that we’ve contacted and talked to, and you’ve given us additions and corrections, which has been helpful. And we’re going to continue.
That’s a little overview of what we’re seeing and who we’ve been talking to. As we get into the discussion, I’m sure you’ll hear more about examples of local activity.
Unknown speaker:
Those 22 communities were chosen because?
Greenberg:
Started out with inquiries among members, asking for suggestions from people. I should mention that a number of these places are places where people in this room have acted as consultants and then renounced their projects because they got changed around in the political process. But we were looking at adopted municipal codes, with all their warts and imperfections, to see what’s actually getting adopted.
Joel Russell:
I want to talk about the two key things that we want to get at, which is the new urbanist DNA idea, and how you integrate it. Let me mention something about the handouts: I have to take responsibility for having inflicted them on you. There are three of them, in addition to the agenda.
One is called “New Urbanist DNA,” which is an attempt to sketch some of the concepts that, from my observation, define what we mean by “new urbanism.” I know there’s a lot of room for disagreement or discussion about that.
There’s a second one called “Making New Urbanist Codes Work,” which is oriented toward a lot of the legal aspects: How do you make sure that these things are going to be practical, and function from a legal and administrative standpoint?
Then there’s an article titled “Amending Land Use Regulations to Promote Smart Growth.” That one actually came out of a question that Tom Dolan asked at CNU in New York: “What are 10 things that a community can do, right off the bat? They want to amend their land use regulations to be more friendly to new urbanist concepts—what can they do?” He asked me that, and I just spouted off, off the top of my head, and then he said, “Well, can you write that down?” So I tried to do that. It went through a few iterations, including when New York Planning Federation agreed to publish it, but they didn’t want to use “new urbanism,” so we changed it to “smart growth,” since that’s a less controversial term. But I think it covers the same ground. It’s written for a lay audience; that’s something to keep in mind. It’s the thing you can pass out to your lay planning commissioners or citizens; it’s not really intended as a technical tool. My observation—and you may or may not agree with it—is that if every community in America did everything in this list, and nothing else, you would see a huge improvement in the overall form and build-out, compared to what we’re currently getting under our sprawl-based codes.
I think there is a tremendous opportunity that we haven’t even begun to address, in moving from the kind of sprawl-based code that Paul described this morning—which is really the predominant, almost the exclusive, DNA of development through the United States—to something that embodies the principles of the new urbanism. That’s what I think we want to try to get at today. We’ve done a lot with individual projects—what makes a good project, and what doesn’t—even how [codes are done] for individual projects, which are usually implemented through something like the planned unit development provision.
We want to look at a different scale, now: the community-wide scale. I want to talk about some of the legal issues.
In reviewing a lot of new urbanist codes, I’ve come across a lot of issues, a lot of problems with the way they are drafted. I think that’s large attributable to the fact that, for better or worse, they haven’t had the benefit or, perhaps, the problem, of having lawyers look at them. Lawyers can be both your worst enemy and your best friend—just as with traffic engineers, who we faced about 10 years ago: How do we get over the problems of traffic engineers? With lawyers, it’s the same thing. A lawyer can kill a project or he/she can help you get it through, if you understand what the issues are and how to address them.
We pretty much agree that the current system of zoning regulation—land use regulation—is a mess. Most people cannot understand the codes under which they operate. The presentation in New York City about the New York City zoning: Basically, they said that there are three people in the city who claim to understand New York City zoning, and every one of them will give you a different answer as to what it means. That’s probably true everywhere, [due in large part to the fact that] codes get amended over time by an accretion of individual amendments that are made, that make the codes more and more complicated. What is so rarely done is going back and seeing what you’ve already got, and getting rid of what isn’t working. When you approach code reform, if you’re looking at it as so many of us here do, as “well, let’s get a new urbanist code, and then we’ll stick it onto the existing code, or we’ll put it off in a corner by itself and ask everybody to use it,” that doesn’t get at the underlying problem that the code that is in place, that most developers are using because it’s the path of least resistance, is still mandating sprawl. And that is what you’re getting, by and large, everywhere, even if you have the ideal new urbanist code to splice onto it, or overlay it, or however you want to do it.
So that’s why I think a key issue here is how do we take these basic concepts, most of which we can agree make a lot of sense, and probably we don’t have to debate, although we might debate which are more important, but how do we get them to be actually included into the codes that govern development in each community?
What I’ve done—and I’m not sure how we want to use it, because the idea here is to be interactive—is I’ve suggested eight categories of things that can go into code revision in general:
1. Designing the public realm
2. Walkability
3. Parking
4. Transit accessibility
5. Mixed-use buildings
6. Public spaces
7. Land preservation
8. Procedure
There’s nothing sacred about this classification system; it’s just a way of grouping some of these concepts. We’ve heard a lot about them already and we’re going to continue to do that, but I think one of the things we want to come out of this Council with, is some sort of sense of “what are the essential pieces of that ‘genetic code,’ as it were, that will be part of the regulatory revolution, really, that we’re trying to make here? I think the piece about “how do we get people to buy into it?” obviously is very important; it will never happen if people don’t buy into it. And that’s where effective planning processes, it seems to me, are critical.
We heard the presentation about form-based codes this morning. I think that’s a great example of really important types of what we could call the DNA, the “how do you present the essential stuff of new urbanist development in a code context?” It’s one way, and it’s an effective way, but I think we have to be open to the possibility that there are a lot of different ways of getting this material in. The key thing is “What’s the result that gets produced at the other end of the approval process? What gets built on the ground?” If we have a body of rules, however we’ve written them and however we’ve illustrated them, if they produce the results that we want, if they make it easy for developers to do new urbanist development, then we’ve succeeded. If they haven’t, or if they’ve just created additional levels of complication or if they’ve created something that nobody’s using, then we haven’t necessarily accomplished what we want.
I’d like to throw open for discussion any thoughts about the essential elements of what should go into a new urbanist code.
Philip Bess:
Two questions: one under category number seven (preservation of land in areas outside the compact development centers), and one under category number eight (procedures).
This has come up in a project that I’ve been working on in Palmer, Alaska, of all places. It has to do with the protective land use regulations and the public or nonprofit acquisition of land and development rights. It seems to me that there’s a third category—I don’t quite know how to articulate it and I’m wondering if you have any experience in dealing with this. It has to do with a strategy for how you—the case in Alaska is that you have a historic town surrounded by farmland within the village limits. The question is how do you plan for the growth so that you can locate it and—it’s basically a transfer of development rights issue, because how do you keep the dozen farmers, how do you decide which ones have their land made available for development and which ones get protected? How do you articulate that?
The other question has to do with procedure, the issue of undesirable development prohibited or made much more difficult. Peter Katz this morning talked about trying to articulate all the uses that are permitted in that form of zoning—use-based zoning—and saying basically, it’s an impossible job, it’s infinite; you don’t know what kind of uses are going to come up. The same thing, it seems to me, has to do with issues of prohibited uses—who knows what kind of noxious use is going to arise in the next 10 years that’s not on your list of things. Would the idea be that you specify who has authority to determine what use is not permitted, or are you suggesting that this needs to be articulated?
Russell:
I think you’re reading the word “use” into number eight. One of the essential things that is covered in another part of this is that we’re not focusing on use per se; we’re talking about desirable and undesirable types of development. I think we’re talking primarily in terms of urbanism. In other words, the conventional suburban development is what we’re discouraging or prohibiting, and the new urbanist type is what we’re encouraging.
The issue about how you regulate use, I think, is something that we’ve tended to skip over a little bit. One of the reasons why we have these ridiculous lists of uses is because we started out with simpler lists of uses, and then somebody wanted to do something that wasn’t on that list, so then it was added, and then somebody else wanted to do something else—and it went from what was originally maybe a fairly simple list (often, it was just a list of what happened to be there the day the ordinance was passed) to [a list of incredible detail. This probably happened] as a result of legal advice, which said, “You have to be very specific; you don’t want to give any discretion.” I saw an ordinance that made a distinction between a spaghetti factory and a macaroni factory—you want to talk about how ridiculous it can get!
We have to move away from that. We’re going to the other extreme, in some respects, by being more generic in use.
What you’ve asked about number seven—that’s another area that the new urbanists haven’t talked about very much. We focus on where we want development. We focus on the urban end of the transect. The rural end is a whole other set of problems. I don’t know that we have time to get into it today, but a quick answer to your question is: It’s a comprehensive planning process that helps you decide where you want development and where you want preservation. The mechanisms of achieving it are a combination of land use regulations that limit development in those rural areas, compensation mechanisms to compensate property owners, and one of those—a sort of a hybrid of that—is the notion of transfer of development rights, where you’re essentially compensating the landowner by enabling him to sell development rights, which is really a regulatory mechanism, to do that. And those things all work together. At some point, this might be a topic to talk about: Outside those circles—particularly in greenfield areas, where you color it green and you say it’s rural—how do you make that happen?
Mark White:
I think you already covered what I was going to say, Joel, but one thing that needs to be mentioned, too—you can tell by my tie I’m one of the lawyers here, and we just have to interject this because it’s a reality—is the takings clause. You can’t just define a large swath of area outside of your developed areas of town, and tell landowners that they can do absolutely nothing with their property, because that’s going to get you into serious takings issues. That’s why TDR is such a good concept. It at least gives you a way to work with landowners so they get some compensation through the private market. We all know how limited local governments’ budgets have been lately; they’re not really willing to go out and buy thousands of acres of land. They just don’t have the cash sitting around. So creating that kind of incentive is very good
It’s an issue that always has to be addressed, and it’s an unpredictable one. Judges have the easy job. They usually address takings cases on a case-by-case basis. The outcome is uncertain, but the reality and the risk is there.
Bernhardt:
Philip, one thing you may want to look at is the Horizons West development in Orange County, Florida. (They dealt with that issue.) [That project was built on] all undeveloped land. They did a complete plan that showed what areas would develop as villages or town centers. I think the numbers were—everybody got, in effect, one dwelling unit per acre, but in order to develop the town center, you had to then accumulate and then transfer that in. But that’s already in place; it’s a practical approach that you may want to look at.
Unknown speaker:
There’s another gloss to Horizon West—we help set up that concept—that’s a reverse TDR, where you have to build at a minimum density. If you don’t build at the minimum density, you have to pay a fee. This is something that hadn’t been tried anywhere else in the country, as far as I know.
Unknown speaker:
Are you saying that, under the takings, you can’t just take agricultural land, agricultural? I thought, at least in California, where I work, you have no obligation to upsell land to an urban use. To me, that’s sort of fundamental: You don’t have to buy it; you don’t have to upzone it; you can make reasonable plans that declare it to be an agricultural use, and it can be that.
White:
[Unintelligible]—agricultural zoning, but again, when you’re telling a property owner who has, or thinks they have, a market for a much more intensive use, you’re facing a takings challenge that courts will address on a case-by-case basis. I’ve seen other applications of TDR as well, where they’re trying to keep property reserved as wetlands and passive open space—not even agricultural use. There’s a serious risk to communities when they try to do that without compensating the landowners. I’m not saying there [aren’t ways to deal with that issue]; usually you have to give the property owner some minimum lot size, the ability to build one residential unit on X number of acres or something. But that’s going to be tested, and it’s a reality that I don’t think we can ignore when we develop these types of programs.
Andres Duany:
I think that was a good question—the sort of “California” question. I think one of the things that, when we form these committees, is very important: to actually have the geographic distribution that we have here. Because I speak to westerners—particularly Californians—who actually think that urban boundaries is a tool that can be applied anywhere.
Here’s the news: Jimmy Carter, in the 1970s, promoted American agricultural efficiency. He wanted farmers to buy a lot of machinery. When the bankers gave loans, they didn’t understand [agricultural] production as collateral; they wouldn’t take the making of apples and horses, and so forth, as collateral. So they asked, all over Florida, that the land be zoned one, two, or five acres, so that they could actually give it as collateral. That was a very safe move, because there were so many places in Florida, in 1970, that would never be developed. But most of the counties that we’ve worked in—Dade, Hillsborough, Sarasota, Marion—everything has one-acre zoning already. Or two-acre zoning. Or, at the least, five-acre zoning. And we have a law called the Bert Harris Act, that says that essentially, you cannot reduce the value of land. That’s a state act. So we don’t have urban boundaries. We don’t have anything. I would urge you, as you make discussions, that you hold people to different standards. This business of urban boundaries everywhere just doesn’t work in certain Florida counties.
This is one of probably many, many examples. In Kentucky, you have tiny jurisdictions, tiny, tiny jurisdictions. There are many counties all over. Or Pennsylvania, which has hundreds—if not thousands—of different governments that actually cannot be made to work together. As you write codes and standards, please bear in mind that there are different places in this country that require different mechanisms. Provide them as alternates, particularly if you’re going to write model codes. There’s the alternate for the Pennsylvania condition, the alternate for the Florida condition, and so forth. Because that’s the reality of our country.
Unknown speaker:
There’s also the issue that we all operate under different state laws that really do affect how we can do what we do.
Nathan Norris:
Pursuant to that issue is the issue that if you go and read all the state codes, a good number of the statutes that are enacted are based upon model legislation. While this effort is in its very early beginnings, and while there are huge differences in the existing legal framework in each state, do you see, in the future, any need to go ahead and adopt some model codes that would be recommended for an action in various states across the country?
Russell:
When you say “model codes,” do you mean at the state level?
Norris:
I’m saying you’re out there, right now, studying all the model codes that are out there, let’s say. At some point, if we behave like other industries, we would go ahead and adopt a code that we would seek to enact in various jurisdictions, and customize it to various jurisdictions, just as you have the uniform commercial code or something like that, which is applied—while that’s not a great example, it’s an example of model legislation that got enacted because there were national interest groups that were interested in promoting certain things. What are the thoughts of this group on that issue?
Russell:
What we have now is mostly based on the Standard Zoning Enabling Act, which came out of the 1920s, and which is causing a lot of our problems.
Let me back up on this word, “codes,” because I think we’re stumbling on it again. When we talk about state legislation, we’re talking about the enabling—Mark’s going to talk about that—the laws at the state level that allow local governments to write the codes that we’re generally talking about. So when we’re talking about state legislation, we could use the word “code”—in some states you do use the word to describe the state code—but it’s a very different animal from the local code.
I have a particular hobby horse about model codes. I think that they’re very dangerous, because they are applied indiscriminately, without looking at how you plug them in to individual jurisdictions. When you’re doing this kind of work, you’re never writing on a blank slate; you’re never going into a place that has no regulations, and just putting in regulations for the first time. You have an existing body of regulations, and when you add something to it—I can’t tell you how many zoning ordinances I’ve seen that have a stack of model codes of one kind or another, that have been added to them over the years, and that’s one of the reasons they’re so damn incomprehensible and confusing. For one thing, they conflict with one another; they were enacted for some special purpose at some time, [probably for good reason]. I’m concerned that the new urbanist model codes are going to get buried in that same stack, if we don’t do the fundamental rethinking of how these codes are put together, so that we aren’t just adding complications, but we’re simplifying (them) and making them work better.
I like to make the distinction between what I could call “model standards” and “model codes.” I think that model standards, which are the DNA, which are, for example, how I might characterize a lot of what the form-based material we heard about this morning—those are ways of describing the kind of development you want to have, that go into a code. Similarly, different kinds of dimension regulations—a lot of the things that I’ve listed under “DNA” here, are different kinds of standards, different kinds of prescriptions that you might put into a code. Once you put those into a framework of some kind of a model code and then say, “Well, you just plug it in—plug and play,” what you find is that the only parts of it that really work are those standards. And if you haven’t done it right, they aren’t going to work. The tricky thing is to take those standards and fit them into—this is where the craftsmanship of it [comes into play]—how do you fit them into an existing framework?
I think we think of writing codes as being like building a house on a vacant site: There’s nothing there; you’re just going to put up a house. But to me, it’s a lot more like rehabilitating and renovating an existing structure: You have to deal with what’s there, unless you’re going to demolish it. But I think that you’ll find that the constituency in every community for not demolishing a code is like the historic preservation enthusiasts in a lot of communities: They don’t want it. They want you to work with it; they want you to make it work.
That’s my rant about model codes. I think, as long as we see what we’re trying to do as come up with the ideal model code, I’m concerned we’re going down the wrong path. I think if we look for the ideal model standards—what makes for a code that really works; how do you adapt it regionally, which has also been discussed; how do you fit it into the framework of different state legislation, which can influence what you can and cannot do; and then how do you fit it into the actual framework of the community you’re in—every community has a very idiosyncratic code; working within that is a real challenge. So those are a few observations about that, which aren’t covered on the outline.
Geoffrey Ferrell:
I’d like to ask about 15 different questions; however, I can only ask one. Okay, two things.
First, there’s a sentence here on your DNA that gives me pause. It focuses on matters of content, not form, which I think dooms it to missing some really important issues. Maybe there’s something I’m missing here, but I think that’s a fundamental thing.
This is my rant on enabling legislation: I’ve never run into statements of intent in comprehensive plans that weren’t “Mom, apple pie, walkability, etc.” How is what you’re talking about different than a PUD, which enables us to do anything we can sell? Educate me.
White:
Perhaps the word should be “format,” rather than “form.” In other words, I’m saying that the DNA is about the actual content of the code, which could include things about building form as part of the DNA. So I apologize. Physical form is definitely part of the DNA—it’s essential. It’s almost the most important.
Unknown speaker:
You mean the form of the code?
White:
I mean the form of the code, the structure of the code, the outline of the code, the format, whether it has a lot of pictures—that kind of stuff.
As far as your other question, is this any different from PUDs—is that your ques—
Ferrell (without the mic):
(Unintelligible)
Russell:
Right. Well, we’re not talking about “intent” language; we’re talking about—you want to take that?
White:
I think you answered your own question. Your original question was “How does this differ from a PUD, where you can do anything you want?” The difference here is that you can’t do anything you want. In a PUD, you get general breaks from the setback, use, and other restrictions under zoning. But what you end up with is usually something that is decidedly not new urbanist. You could certainly build a new urbanist project under most PUD regulations, but that’s not usually what happens. What we’re trying to do with new urbanist codes is to provide some type of regulatory incentives for developers to choose this route, to define this route, not only for developers, but also for the folks who sit behind the permit counter, who often don’t know what the difference is between something that’s new urbanist and something that’s masquerading as new urbanist, such as a cul-de-sac subdivision with front porches.
Developers understand the game, now. You go to a planning department and you say you’re building a new urbanist community or a TND, the planners fall all over themselves to process you. So you get a lot of Trojan horse, so-called TNDs, and that’s what these are designed to ferret out; that’s what the DNA is designed to ferret out.
Dolan:
I hear cross-purposes here. On the one hand, we need to figure out how to allow the developer and his design team to do the right thing. Because, as Peter mentioned this morning, there are many things that are simply illegal. That is, on the one hand, something we need to approach. On the other hand, how do we force people to not do the wrong thing?
Paul Crawford:
Let’s back up a second and think about this in a very slightly different way.
[Don’t we all want] a situation where a developer picks up the community’s code, reads it carefully, says, “Okay, I understand what the city wants, I’ll design a project to match the code requirements,” they bring the project to the front counter and submit it, and the planner at the counter says, “Great, this is exactly what we wanted, here’s your permit,” the developer goes out and builds it, the people who are around the site when they see it built, say, “Wonderful, that’s exactly what we hoped would happen there,” and, project by project, the city gets better every day. Isn’t that what we’re after? That’s the kind of code we want.
So the question is, how do we organize information in ways that allow people to work their way through it efficiently, to understand what the community wants, and, more importantly, what is the substantive content that gives them direction in the design process to produce the project that the community wants? How do we do codes that accomplish those things?
White:
There are two issues in your questions. One is empowering a new urbanist community; the other is creating incentives.
How do we make it happen? There are two approaches to that, which have been tried. The first work is wildly successful when you have the political will to do it. But it hasn’t been done very often. It’s what Huntersville, N.C., and some of the others places are doing—Davidson, places like that—and that is you mandate new urbanism. That goes over like a lead balloon in cities of 1.9 million. The alternative is to empower it and say it’s going to happen, and it gets ignored.
So the second, I call it the “mafia approach,” is you give developers an offer they can’t refuse. You don’t mandate new urbanism, you allow it, permit it as of right, which is what Paul’s talking about—we’re jumping forward to the last part of this—but you create good incentives, either financial incentives, which aren’t necessarily a code issue, but also processing incentives. And that’s what permitting development as of right does. If you know that if I build a planned unit development, I’ve got a three-year rezoning process ahead of me, or I can build a new urbanist community and get permitted tomorrow, that’s a pretty powerful incentive for a developer. In Florida, we’ve also looked at concurrency waivers and that sort of thing, where, if you build a conventional subdivision, you’ll be tied up for four years, until the traffic capacity is available. If you build a new urbanist community, go knock yourself out! So the ideal is something we all agree on—it’s how to get there. Just writing a nice-looking code isn’t good enough. You have to create good incentives.
[smattering of applause]
Bob Odlund:
I disagree totally on your comments as they apply to built-up areas. I think in downtown areas that work, in existing neighborhoods, existing cities, you don’t want to give people options. You can give people options in greenfields, that’s fine, but I think if you know what you want to do in a community, many communities will adopt those kinds of regulations. But I don’t think you should get too carried away with options and incentives for existing built-up areas.
Bernhardt:
I would agree. Both in Orlando and Nashville, we developed a different code for the built-up areas that was not optional. That was what applied; you had build-to lines, and you had all that, so I think there is a difference there that needs to be recognized.
White:
All it requires is some political will.
Douglas Storrs:
I really want to focus on incentives. Joel only touched on number eight very briefly. And I hate to keep bringing up horror stories about Cape Cod, but the problem we have is that you can actually achieve all of the goals that have been established. Most of the goals are actually very good. They talk about growth centers, they talk about transportation networks, they talk about nitrogen loading and so forth. But there is no incentive for doing the right thing. We’ve always taken the position that there ought to be financial incentives or at least the reverse of financial incentives.
We’re taking a public health need—kidney dialysis—trying to place it on the second floor of an existing permanent building. My application fee is $15,000. The water resources mitigation fee is $152,000. And they haven’t figured out the traffic fee yet. So I’m in the neighborhood of a quarter of a million dollars to do something that meets all of their criteria. I told them what they needed to do is give ME a quarter of a million dollars to do it! And they were dumbfounded! But that’s what we have to do is create true incentives. [You talk about how to plug it in]? Create incentives—every step of the way.
Bill Spikowski:
On the DNA list, I think we’ve got to face the land use issue head-on. Geoff said this morning that it shouldn’t be primary, that is should be small yet still be there. And Joel, you said the same thing: that we haven’t talked about it.
When we’re working on a code for a community that has a system of classifying uses, we just sort of have to go with their system for the purpose of our code, but when we get the chance to do a completely new code, I’d really like to see a gallery of examples that all of you have worked on, that is accessible to all of us, to see what the possible approaches are, rather than hearing us say we ought to talk about it, but we don’t really know what else would work.
On the mixed use question, I work with local governments, and when we bring them a code that says the entire code is going to be mixed use, they hear in their mind “a store in the middle of my residential block.” Well, every block doesn’t have to be mixed use; every building doesn’t have to be mixed use. And until we say that right up front, we’re going to be scaring away the people we badly need. Those are things [about which] I think we can something here, collectively, that will help all of us.
Bill Dennis:
On the gallery thing, just a reminder: If you have a code here, there is space—we’ve got more boards—paste them up so that we can look at them.
Stefanos Polyzoides:
Although in principle I agree with Joel regarding the danger of all manner of model codes, I find your position relative to long-term, structural change, particularly in existing areas, unduly pessimistic. This morning, Paul spoke about various ways of thinking about code-making, one of them being simply tinkering, another one being muddling through, in effect, another one is splicing (working in parts within an unfriendly regulatory environment), and the third one being attempting to unseat the existing code and rethink it in depth, both as a constitutional document and as a regulatory document.
It seems to me that the difference between these three positions is essentially political. To the degree that there exists the political will in a series of strategies for engaging the community through its leadership, in the process of changing regulatory frameworks, I think, as new urbanists, we should be both embracing and promoting this with great fervor. Because, in fact, this is the most effective and the most direct and the most successful way of changing the world by automatic pilot. Both of the others, both the “specific plan” way and the “muddling through,” are fraught with problems, the kinds of problems that have to do with all of us spending five nights per week in planning commission and city council meetings, and the problem of the American political process being trashed four-fifths of the time by being taken up by irrelevant issues of development.
So it strikes me that, although the DNA idea is correct—that there are technical parcels of interest that constitute codes—I think we need a model methodology and also models of political engagement and involvement toward generating the maximum amount of change in the shortest period of time.
[Applause]
Bernhardt:
Let me [respond] a little bit on the use issue, because I think that for those of us who have to deal with this every day, the use issue does come up. I’ll share with you the approach that we’re using.
Basically, we have our structure elements of the plan—neighborhood plans—and in areas that are built up, you can be much more specific in terms of the location of uses in a built-up area where you’re doing infill. In more greenfield locations, what we’re shifting to is part of the structure elements, whether they’re the corridors or the neighborhood center or the neighborhood general, we’re defining a broad range of uses that are permitted, and giving some assurance to the community that it’s not going to be all of one type. For example, on our corridor generals, you can have 30 percent mixed use, 50 percent multi-family, and up to 70 percent single family. There’s a lot of ability to manipulate those numbers, but there is also an assurance that it isn’t going to be all of one thing. And we’ve defined those classifications fairly broadly. Is it the ideal? I don’t know. We’re looking at what’s happening and trying to massage those numbers, but I think there is, from a practical point of view—at least in our situation, [which is] a jurisdiction of 575,000 people—there has to be some understanding as to how you get to this. We’ve downplayed it—I think it was in Peter’s slide show—we have downplayed use; it’s not the primary thing, but we have not forgotten it, and we have begun to tie building types to those uses as well.
Russell:
I’d like to respond to what you said, Stefanos, because I don’t really disagree in principle with what you’re saying. I think we’re always talking about degrees of political will here. There’s the tinkering, there’s the more radical change, and there’s trying to put this whole new system in place. I would agree completely that that is what we should be doing wherever we can, and having models out there that work—and I emphasize that WORK—is critical to making that happen. But what I think we’ll find is that, when we’re talking about a model code, 90 percent of what we’re talking about are the model standards that go into that code. And the 10 percent that is how you make those standards work in a particular jurisdiction, is going to vary quite a bit from state to state. So, for example, I think a model code for California and a model code from Oregon would be very different from each other, but they both could and should be done.
[END OF TAPE]
[BEGINNING OF TAPE]
—it also includes subdivisions. It includes a whole bunch of different things that typically come under different areas of state law, and are regulated differently in different states. So I think it’s really two parts: It’s the standards, which, to me, are the most crucial, and on which we could agree as national standards; but then, how you integrate them into specific regulatory documents has enough variation from state to state that I think you’d have to be a little bit more careful about how that is done.
Peter Katz:
Let me weigh in on this model code issue for just a moment, and cite a very common phenomenon.
The principles of new urbanism—of compact development, maintaining countryside—are very appealing at the regional level, as long as you’re abstract, and not tethered to a particular site. And yet, once that little development lands on a piece of property, it changes the whole flavor of the discussion.
Case in point: Vince Graham’s development, I’On, in Mt. Pleasant, South Carolina. The community began a process, and they said, “We want new urbanist development. This is the kind of thing we want.” They sat down and wrote a really lousy document, a really flabby, soft, squishy document that talked a lot about new urbanism, but had no teeth in it, and wasn’t even very clear about what it was asking for. Vince Graham, a developer, gets control of a piece of property, goes out and creates, with two top-notch firms, an absolute state-of-the-art plan with all of the things we want: mixed use, lots of different housing, retail, eliminating regional vehicular trips—couldn’t ask for a better plan.
And guess what happened? The NIMBYs jumped up, attacked him, managed to get to the politicians—the same people who drafted that language asking for new urbanism—and basically, Vince had the fight of his life. The project was watered down; a lot of the features we all admire were taken out of it. The fact is, if he’d had a document to put in place—remember, this is tiny little Mt. Pleasant, South Carolina. They don’t have the money to go out and hire all the firepower in this room to create their ordinance. They’re just kind of flailing around at it. If he’d had a document issued by a group like CNU that they could have put on the books, they could have been very clear and very specific about what they were asking for before the NIMBYs were awakened. And they would today have a better project in place.
That’s the thing. We’re getting really confused by this whole discussion. It’s a simple thing, folks. We need some kind of a framework at the larger level—call it “general plan”; whatever those words are—that if a community wants to go this way, they can put it on the books and, a year later, they can start permitting new urbanist developments. Is it that hard? Do we have to argue about it for—
Russell:
Well, what happened in Mt. Pleasant was that they had a general plan that did say exactly that—“We want new urbanist development”—the problem was, they didn’t go the next step of changing the zoning the require it or even to allow it, and then [Graham] came in with a plan that did not comply with the zoning—
Katz:
There was an inconsistency between the policy statement and the specific rules on the books, but had they had a document that they had voted into law, that had both elements, that was TIGHT, then Vince would have had a much easier ride. That’s all the incentive developers need—
Russell:
Right, well, that’s the classic—
Katz:
—is just a reasonable legal framework.
Russell:
That is the classic problem we have right now in American planning and zoning: this inconsistency between the plans and the zoning ordinances, which—
Katz:
So let’s just fix that!
Russell:
Well, there—oh, okay. I agree! Let’s just fix it!
[Applause]
Unknown speaker (without mic):
[Unintelligible]—nobody disagrees that it’s got to be fixed. That case [unintelligible] went all the way to the South Carolina Supreme Court. And the problem wasn’t that—
Greenberg:
I’m not going to give away the microphone! I’m just going to say—and Bill Klein was muttering about this this morning—in 40 states, you can adopt something that is consistent with zoning and NOT consistent with the general plan. So I have to say that changing the language in the guiding document, except in those states that have a vertical consistency requirement, is not actually going to get you there. It’s changing the regulations, because those states have to be consistent with the regulations, but don’t have to be consistent with all that policy language in their general plan. Those states are the exception—not the rule.
Douglas Duany:
There’s a little bit of frustration with what I recall Stef’s number three point. What happens, of course, is when you deal with mixed use, you break it down by transect. There’s hardly any commercial in T3 and there’s a lot in T6. And that answers a lot of the questions in the audience. And what I’ll call Stefanos’ number three, or Peter’s, there’s a little bit of frustration in the audience because you’re talking about limitations. There’s been a lot of talk about limitations from the top. And if we can make a differentiation between places where there’s a political will, I wouldn’t mind if one of you covered that and said, “Constitutionally, we can’t do this, and most states will limit code revision in that way, but this is how you use DNA to destroy existing legislation, and replace it.”
Do you see? There’s a radical option, which should be covered, you know. What are the limitations on the radical option? Fiddling will only get us so far, really.
Unknown speaker (I think it’s Ellen Greenberg, without a mic):
[Unintelligible]
D. Duany:
More radical thing, yes. When you get a code book this thick, fiddling with it is really like the tar baby, you know.
Rick Cole:
And I think that is critical, to talk about the process of change. The process of change always begins with this muddled mix of incremental and radical stuff going on. Both are necessary; both are valuable. And then there’s what Malcolm Gladwell calls the “tipping point.” And that happened with virtually anything you want to take: the model zoning codes that have spread like kudzu all over the country.
One word we haven’t used here, in all this discussion: Houston. For 60 years, Houston was pilloried by planners all over America as the Great Satan, because they didn’t have zoning. And, listening to planners, I went to Houston for a conference, and I was shocked to find that it neither much worse nor much better than anything else in America. But I had been brainwashed by 60 years of ideology that if you didn’t have a zoning code in your city, you would turn into Houston. And the reality is that we’re at the tipping point, just as new urbanism has crossed the tipping point. Some of us in the room remember when nobody could imagine that any of this would ever be built anywhere, and now where all saying—like acceptance, well, of course, everyone accepts new urbanism; now we get to the hard part.
Well, that wasn’t true 10 years ago. And now, today, no one accepts that you can blow up zoning codes, but in 10 years, it will all be different. You know, the Soviet Union and the Eastern Bloc countries fell like dominoes, because once you crush the invincibility mentality, it falls down like rotted wood. And these zoning codes—everyone hates them. The planners hate them. The developers hate them. Everyone hates them. And once there are enough models of enough cities, and enough radical alternatives, and enough coherence, and enough success, a thousand zoning codes will fall in a matter of six months. And, just as Andres earlier said, [regarding] the competition with the book publishers, once some cities begin to be seen as progressive and prosperous and successful with the new model, people will scramble to adopt the Palo Alto model or the whatever-it-is model. That will happen. In the meantime, it is helpful to deal with all these hard issues of what we’re going to put in its place. And actually, city by city, these individual battles do matter, because we’re learning from these battles. But in the end, when that tipping point comes, zoning codes will be washed away, because everyone hates them.
[Applause]
Russell:
I think you’re absolutely right, and it’s the examples, it’s the adopted examples that produce good results. We’re going to get a critical mass of those, and that’s what’s going to do it. I think that it’s not going to be some—I mean, it may help to have a model code that gets put out by an organization, but it’s going to be when that gets adopted in enough places, in enough variations, and people realize that it’s the way to go, that’s the tipping point.
Marcy McInelly:
If what Rick is saying is true—this is my team, here, which is working on the Palo Alto code rewrite—then what we really need to be doing here is figuring out how to prepare ourselves for that huge demand. When I hear people talk about codes in these forums, it always sounds as if people think you could move from the comprehensive plan—or the goal for, or, if you’re lucky, it’s a half-assed kind of language supporting such a plan—directly into the code itself. You can’t. It’s very “local process.” And, if it’s place-based, as Paul (Crawford) was saying this morning, and if it’s based on planning that has actually been done, as Peter Katz was saying this morning, that means there is urban design—form-based study—and planning going on. That’s a precursor. But what we hear so often is people who are desperate for help in their communities, who haven’t been able to undertake the planning. The code and the planning can happen simultaneously, but they can also happen in a linear way.
As someone from Oregon, I think we get brushed aside a lot, because people assume we have it easy because we have these urban growth boundaries. The urban growth boundaries were created 25 years ago with huge amounts of political will. They were created because agricultural land was typologized. And that same kind of very sound basis of judgment is what we are all talking about doing here; it’s what codes are based on. The agricultural land throughout Oregon was typologized as to what was prime farmland, what was less than prime, and on down the list of categories. And urban growth boundaries were created to protect the prime land, and allow urbanization on less-than-prime land. But it took a lot of political will to go through that process and to get that set up, and it makes our job easier in some ways, but every five years we have to go through that challenge all over again, and we have to redefine what agricultural land is all about.
So I think that same methodology could be applied in areas that do not have an urban growth boundary.
A. Duany:
I’ve never done this before (I’d rather jump into the fray), or asked anybody to do this, but I think we need step back, and actually look at what these codes actually are. Christopher Alexander said, “We all know what the appliance is; what we need to do is to design the plugs that connect to the existing power grids.”
We know what the appliance is. The appliance has been developed by the new urbanism. It’s the traditional neighborhood—it’s the TND, TOD, and the cluster. Those are the three contenders. They have traditional names: hamlets, villages, towns, and cities. That’s pretty good confirmation that we have, in fact, reinvented things that can be confirmed throughout history and culture.
So we know what the appliance is. The designers have, in fact, done that. Now, this is still a design-controlled organization, and what we have here up on the stage are two other types of people: attorneys and administrators. Let me say that we have to hand over the design of this “plug” to a new type—a different kind of person than designers, who are, in fact, attorneys and administrators. Because they’re the ones who are going to empower this, partially because they’re making a living doing it. There’s an awful lot of really superb minds that are actually writing codes; that’s their livelihood. And we need to get used to the idea that it’s going to be different from the beautiful form-based, and all these earlier codes that new urbanists have been writing that have, in fact, given us only the appliance.
These people are designing the plugs. We may not like the plugs, but as long as they make our appliance work, that’s fine. Is it working, Joel? It might be a horrendous document conceptually, but when I go to one of your codes, can I effortlessly create a TND? That’s all I need to know. I think we need to pull back and let them do that, and prove just that.
I also think that we need to, perhaps, modernize where we think the “power grids” are, and actually reconcile ourselves to the fact that there are several power grids. There isn’t a single power grid anymore. We need to identify what these power grids are. I would like to propose that the new power grid—stronger than any—is the environmental movement. In fact, it is the environmental movement that is going to trump the traffic engineers, and the developers, and the people who design signs and streets lamps—who design absolutely everything—and that whatever new codes are written, what is going to make them powerful, what is going to make them new, is not only the new urbanist appliance, but that they connect directly to the environmental power grid. That doesn’t mean making things “green.” It’s an environmentalism, broadly understood. That is, perhaps, what’s really new and radical, that Douglas is talking about, that’s going to break the mold and confuse the people who are, in fact, holding back and saying, “Don’t change my world.”
I think we should check for that: How does it empower the NIMBYs, who have learned to plug into the environmental movement. They’re not environmentalists. But look at their success! We too have to plug into the environmental movement, so that we can go eyeball to eyeball with the NIMBYs. “You’re an environmentalist? So are we. And this is what the code says.”
That, I think, will be the true innovation, the radical breakthrough.
Russell:
I think the alliances with environmentalists—that’s partly how I’On got approved. The South Carolina Coastal Conservation League weighed in in favor of it, which is an unusual position for an environmental organization.
A. Duany:
The thing is, you need to write codes that environmental movements can administer. That they can understand the lead system. All of these identify these standards that they write. I’m not saying do what they think. Their tools are so limited. What you need to do is expand the tools of the environmental movements, so that they can overlook the making of the human habitat. And that will work, I think.
Polyzoides:
It strikes me that it is not simply a matter of handing known wisdom—whether you call it standards or DNA or whatever it is—to another kind of people, to empower the movement. I think that the act of writing a code for Azusa or for Palo Alto, or for any other place in the universe, is a design act. And I think it is also not a single-discipline act, but it’s a multi-disciplinary—it’s a generalist act. So I think what I would like to avert is the idea that we have half a dozen generic models, by state or otherwise, or a set of standards, whichever way you assemble them, and that somehow, you hand it to another breed of people who just go ahead and do it. Because actually, the relationship between the politics and the community pressures, and the cultural realities of each given place, need to be absolutely part and parcel of each code.
One of the things that Paul said today—and there are a lot of things about the qualification of a code as a code: Is it a new urbanist code if it’s not form-based? Is it a new urbanist code if it does not have an urban and ecological geography that is acceptable to new urbanism? Is it a new urbanist code if it’s not intentional—meaning that it has a five-year horizon of specific ends? Is it a new urbanist code if it does not generate an ultimate form that is particular to the regional culture of each place? And by the time you finish with the tenth question of this kind, you are up to HERE in design (raises hand to forehead)—up to HERE, actually (raises hand above head).
A. Duany:
I think you’re still describing the appliance. There are thousands of planners. You don’t want to change the way they do things. You see, all these things that you mentioned are the things that the codes must do. That’s the appliance. But they have to make them palatable for these people who are just sitting there administering checklists, and protecting their jobs, and not taking risks, and not particularly smart or incentivized—elected officials—and there’s a whole lot of spineless people around who have to administer things, and you don’t want to upset them too much—change what they administer. What I think they need to do is plug into—with as few waves as possible—those existing power grids. And doing all the things that you say, but, in some ways it’s not that—it just has to connect with, let’s say, a degenerate situation. They’re not going to be wonderfully designed documents, because they have to be empowered by the existing situation.
Russell:
It’s not an either/or. It’s about getting the disciplines here to work together, so that what we come up with works from the designer’s perspective and the lawyer’s perspective and the planner’s perspective, so that we aren’t working at cross-purposes.
Matt Taecker:
I want to build on Andres’ comment about the power grid. It’s very important that the codes that we’re developing are tied to performance somehow. They should not read simply as formal recommendations, but rather, as much as possible, the work that we’re doing around the core should be crafted to optimize performance around transit, to optimize performance around a whole host of community benefits.
Longo:
I would like to step back for a moment [and address the panel]. I think the discussion, even though it moved in different directions, actually covered a lot of the issues that we wanted to [address]. So I would like to ask the panel: Is there some issue that you would like to address or underline for whatever reason, that hasn’t been touched upon, relating to the agenda? The second question, looking toward the Sunday morning meeting, is: Is there any question from the floor that hasn’t been raised? I had to postpone a couple questions before; is there any question that we can put in the agenda for Sunday morning?—still dealing with the same issues.
Greenberg:
First, I have to say I’m going to write home and say that I went to church and got baptized as an administrator! I never knew that was my identity!
I want to follow-up and suggest two things for Sunday and for all of us to contemplate. Joel referred to “existing framework” several times. I think Joel was talking about regulatory framework, but we have to talk about inserting or replacing—with the new urbanist code—something that fits within a regulatory framework, the physical framework that was addressed in the comments about Portland, and then also, Stefanos was talking about the cultural and the social framework. So we have to think about those different layers. And then, also, we might want to clarify this whole discussion about standards. I think it would behoove us to spend a little time talking about whether the DNA is a set of standards that has, essentially, quantitative values for the parameters that are being discussed; that is, is there a height limit that is a number, that goes in a model code? Or, is there a template that addresses how, locally, you establish a height limit that fits into your framework?
So when I think about standards, I think about the issue separately, of what are the parameters that are being addressed, and what are the standards? And I think this is something that merits some discussion about whether there are specific quantitative standards or whether there are standards that need to be created locally.
Bernhardt:
I guess as a born-again, card-carrying administrator, I think that we’re at a point—I agree with Rick Cole 100 percent, that we’re going to wake up one day and the wall will come down. But we’re at a point right now, where we’re beginning to chip at the wall. And the issue is, what needs to be the codes that we’re using—and communities out there are floundering and trying—what are the elements, what are the standards?
I’ll partially answer Ellen’s question, at least from my perspective. I don’t know that we can define a quantitative code that will apply to all situations, but I do think that we can define what those standards ought to be. You have to address height. You have to address the creation of the public realm. These are the questions you have to address to have a code that functions. We have to find ways to get those codes into jurisdictions that allow people to come and do their development.
That’s what I’m struggling with right now: How do I get a code in place, how do I get 21 votes from a council that basically supports it, that allows somebody to come forward and do the development? Not the people who are willing to fight the battles, but the average developer who wants to do the right thing, but does not have six months or 12 months to fight those battles. We have to identify those. I think the project we’re trying to do now is to identify those that are out there, number one: Do they cover the basics that have to be covered, and are they being successful? Is anybody using them? You need to know that, and then begin to adapt them to your own local situation. That’s where we’re at. And once we get a few of these in place, you’re going to have that wall beginning to be chipped down, and we will have begun to refine those. But the worst thing, from our perspective and the things that we’re struggling with—Keith Covington is here, who wrestles with this every day—are: What are the numbers that we think will work? If we put a code together that creates neighborhood centers or neighborhood generals, and goes through and creates the elements of the transect—we put it together, we fight the battles, we get it adopted, and when somebody goes out and does it, and they can do it by matter right, and they develop it and it’s a piece of crap.
That’s the risk. That’s where we’re at, in terms of wrestling with those issues. We have to learn from each other and learn from the designers. We can help grease the skids, but we want to make sure we’re greasing the skids in the right direction.
[Applause]
Steve Lawton:
It occurs to me that it’s impossible to draw any map without making a political statement. I agree with Paul that what we’re trying to get to here is a world in which the right can be done. It’s a way of organizing the activity of city-building. And, at the risk of adding to the brain damage, I want to point out that there are different fields of play. There is the local field of play, where the code actually gets executed—where it gets adopted, enforced, and administered—but there are also other levels of play, which is, in the case of California, the California Building Standards Commission, which has something to say about the California Fire Code, which permits the new fire chief (who has just decided that he doesn’t like our plan) to say no after everybody else at the local level has said yes.
So there’s a system of codes. What we’re talking about here is the zoning regime, but it works in a larger governmental system, most particularly the California Environmental Quality Act, but there are other such regulatory devices that we have to pay attention to and change; we have to chip away at the wall in all of the right places before it comes down.
That’s a comment, but I want to ask a question of you all. Anybody up here seeing integrated action at all the various levels of play or, for example, Ellen: The catalog of local codes is handy, but it would also be handy to know of other compadres out there, in other states, for example, that are acting at those other levels.
Russell:
One of the issues is building codes. As many of you are probably aware, New Jersey enacted a rehabilitation building code, which deals with that. Building codes is another example of the overlapping code framework. And I guess there is one thing I want to get across: I would hate for anybody to think that I was being negative about any of this, because I started out by saying that we have a wonderful opportunity here to revolutionize land use regulation in the country. When I talk about the limitations of state law or, as Steve points out, there are these other layers of regulation—they all impose limitations. If you have to have an elevator in a building, that imposes certain limitations on what you can do. Or ADA. Or all the rest of it. We need to know what they are, so that we can overcome them. I think that there has been a tendency to say, “Let’s put the ideal thing in place, and not worry about all the things that are going to keep it from happening.” I think we have to worry about the things that are going to keep it from happening, because we want to overcome them. And I know we can. But we can’t, if we aren’t aware of what they are or we don’t understand them, or if we don’t engage the professionals—the engineers, the lawyers, the various other fields that know how those things work—so that we can work together and…we shall overcome!
[Laughter and applause]
John Massengale:
There’s been a lot of talk here and elsewhere about regional codes, how the form must be regional, the architecture must be regional. Joel was talking about how the law is regional—different from state to state.
To plug into the power grid, you have to plug into the political system. If these codes are going to succeed, they’re going to have to figure out how to do that also. And those are also different, state by state. In New York, in Joel’s article for the New York State Planning Federation, they wouldn’t let him use the term “new urbanism”; he had to call it “smart growth.” They also have a bias against what they call “physical planners”; they want to keep the power in New York State in the hands of what I call “8½x11 planners.”
In New York City, Joe Rose was the planning commissioner under Giuliani, and came from one of the biggest development families in the city, and certainly knows how the city works, which is a place where for every mayor, the 10 biggest donors are always developers. Joe knew this; he put a lot of work into developing a new urbanist code for New York City. He wouldn’t call it that, but it was a new urbanist code. He could explain it perfectly; he knew all the people to talk to. And what happened to it was that two of Giuliani’s biggest donors made an appointment one day. They went in, they said, “We don’t want this code,” and that was the end of the code. Joe knew by the end of the day that he was not going to get it.
At some point, you’re going to have to face THAT, state by state, too. How do you get something passed in California? How do you get something passed in New York?
There is a minor issue: There’s a simmering issue in the CNU, which will boil up somewhere else, of the designers and the—what you might call—“2-D street specialists”, the specialists who plan streets with bicycle paths and sidewalk planning, that sort of thing. And for some of these designers, their pet peeves are bump-outs, which they feel should not be used 99 percent of the time they’re used, and that they make the street worse. I noticed that those made it into Joel’s list of the DNA, which, on the whole, I thought was a very good list, because all of these lists have the bias of the group who is making it up. Joel’s list actually overcame most of the biases, and was a pretty representative list, I thought, of new urban DNA.
White:
I think your first question leads into what was going to be the next session of what we’re presenting here, but I think Andres stated it perfectly: We have to plug into a power grid. Well, the power grid, for codes—and I’m going to say something that a lot of people won’t like but it’s true—codes are legal documents. Everybody hiss all you want, but they’re legal documents. They are your authority to deny a development that is not new urbanist (if you have mandatory new urbanism). It’s your authority to attach conditions. It’s even your authority to empower the right kind of development against existing background rules of zoning law that have been with us for 70 years and aren’t going to die in the next six months, like spot zoning, like rules against aesthetic zoning, and stuff like that. Every state has its own set of common law on land use issues that we’re going to have to confront.
But there are different models out there. We all know the Standard Zoning Enabling Act. There’s the Standard Zoning Enabling Act, with some enhancements. There’s mandatory planning. Some states now—Florida and New Hampshire—authorize innovative land use regulations. Period. Maryland: the same. So you can do any kind of land use regulation you want.
And we also have a couple other models, now: Pennsylvania expressly authorizes TND ordinances. Wisconsin mandates them—so that is one—but didn’t create any real penalties for not doing it. So there are states that have dealt with this. North Carolina’s DOT now has TND street standards as well. So we’re dealing with these different fields of play; that is happening across the country.
So those models are out there. We’ve been trying to make this point. That’s one of the purposes of this report that’s being produced, is that we have representative codes that were selected for different reasons, but they’re codes from all over the country. What you can do as a municipal government in Texas is quite different from what you can do in California, which is quite different from what you can do in Virginia, which, 30 years ago, the supreme court there struck down a set of architectural design guidelines, because it was based only on aesthetics and completely ignored the other arguments that local governments tried to make, that no, this is function—not just aesthetics.
We’re still fighting these battles, and the movement is evolving. There are a lot of different ways to get at this. There is developing the codes; there’s also getting the word out on the street, empirically, about what happens when you have good urbanism versus no urbanism or bad urbanism. People behave differently when there are blank walls versus storefronts at the street level. This is not about aesthetics.
We have to get those changes made in the context—he called it regional; it’s really state planning. In the United States, every local government is a creature of the state. They have only that authority that the state grants, or they have home rule legislation, but even then, they are subject to the statewide zoning or land use enabling statutes. We need to hit these head on.
The model code is good. The DNA concept is great because it shows local governments—it gives them a menu that they can select from. You go into a restaurant, you want as broad a menu as possible, so you can have something to pick from. One day, you might not be hungry for spaghetti, but you’d certainly like it on the menu, to pick from. It’s the same way: We need to give local governments this palette to choose from, and adapt it to their existing needs. A lot of that is formed by the background principles of state law. We don’t like that—those of you who are designers don’t like to talk about it, because we just say, “Let’s write a pretty code and let’s get it adopted. Why can’t we just do it?” Like Andres said, we’re plugging it into a grid, and each grid is different. Environmentalists are the ones who are helping us to plug it in; that’s not the grid. The grid is state law, because these are legal documents. If they’re not legal documents, they’re marking brochures. And developers don’t have to comply with marketing brochures.
Bill Dennis:
I don’t know—we don’t need no stinkin’ laws!
[Laughter]
Ferrell:
I think Andres hit the nail on the head when he was talking about the difference between the appliance and the plug. I’m one of those designers who likes to do those “pretty codes” and “pretty plans.” But where I get nervous, and my knee starts to jerk, is when I see this group backsliding into “designing the appliance.” The DNA, etc.—I keep hearing that. And then when I heard [Mark White], I was with you—right on, about the appliance and the attorneys—but then, when you said we have to give the local governments a “menu,” because sometimes you don’t like spaghetti, etc., there are some things—I get very nervous when THIS group starts making judgments, just like YOU would get nervous if I had to write your legal brief. You’d be convicted for sure if I had to write your legal brief. You’re doing a very good job of this, but it’s a teamwork. I’m not nervous when you guys are designing the plugs, because they’re different: I’ve run into it in California, Kentucky, Iowa, Florida, everywhere. No argument there. But let’s be clear between the plug and the appliance.
Several audience members:
Here, here.
Chip Kaufman:
I’m going to maintain the appliance and plug metaphor. The DNA, it seems to me, applies almost exclusively to the scale of the neighborhood and smaller. And I wish to note that we’re darn good at building type prototypes, especially when compared to town and neighborhood structuring. And sub-regional structuring prototypes, I think we’re basically in kindergarten there, and we don’t share a lot of understanding or agreement about those things. And so there’s a missing chunk of the appliance that, in my opinion, needs to be better understood. And in much the same way that Professor Reps identified only four prototypes for 400 bastides, I would submit that there may be some X number of sub-regional structural prototypes that we may not agree upon or even understand fully, that deserve to have the same rigor applied as to buildings, in order for us to complete the picture and to inspire the plugs for that as well.
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