After reading ablarc’s blast in the “planning chaos” thread, I realized that it would take a lot of work to reply. So, I thought about just surrendering. That would be implicitly admitting that I am a tired, old bureaucrat, a closet Marxist, and … Well who knows what people who don’t hate zoning might stoop to? It would also allow the anti-zoning bashfest to continue without hindrance, at least from me. As a former outback planner, I have been called lots of things. But I don’t much care about that. And why spoil the fun?
I also had to ask myself if I really have a dog in this fight. The record shows that I have been advocating and, in sympathetic places, implementing the reform of conventional zoning for a long time. I have a set of slides dating back to 1979 that lays out a critique of zoning that would fit perfectly into the current threads. Indeed, I am 99% sure I was the first in this electronic ‘burb to bash conventional zoning. I wrote my first performance-based system in 1977. 30 years later, I am attempting to reform Williston’s conventional rules into something that will implement the goals of creating a denser, pedestrian-friendly town center, sustaining the historic village center, and protecting open space. That means dismantling a lot of conventional zoning. So why should I not join in the fun?
There are two problems. One is probably peripheral to most zoning-bashers, however important it might be to sustaining communities. The other goes back to the heart of the discussion.
I – A Definition
To begin, however, I want to do something that no one has yet done in these threads. I want to define “zoning”. It occurs to me that we are not all on the same page.
When I say “zoning,” I am using it as shorthand for local land use regulations. When I defend zoning, I am defending watershed protection buffers, regulations that prevent building on hazardous slopes, prohibitions on off-premise advertising, standards that protect the night sky, and all of the other regulatory systems that attempt to gently integrate development into the natural world and existing communities. I am never, at least at first, thinking about use charts, minimum lot sizes, setbacks, and the other typical standards of conventional zoning. I use those tools as little as possible. BUT, I do use them, and here is the reason why.
II – Practicality
An older couple has a nice garden, next to a vacant lot. Someone moves in and proceeds, in their unregulated community, to build a large garage and shop that almost completely shades the garden, effectively ending its long-tended usefulness and beauty. This shading would have been prevented by a typical zoning ordinance, with suburban setbacks and limits on the placement and height of accessory structures. As it is, the only recourse these folks have is to go to court (if they can afford to) and the only settlement they could likely obtain would be cash, not the sunshine they lost.
I acknowledge that applying the same dimensional standards on a vacant parcel down the road would limit a developer’s options. We’ll get to that. But where I am used to working the choice is NOT between crappy conventional regulations and progressive regulations. The issue is NOT how to develop or re-develop relatively large tracts. The choice in many communities is between some minimal oversight of development and no rules at all. The first issue is not the design of the entire city, it is how to protect peoples’ right to enjoy their properties from neighbors who simply do not care.
If we value property rights, there has to be a way to prevent (where possible) and remediate (when necessary) land use conflicts between neighbors. That way has to be more or less available to all citizens, not just those who have the resources and tenacity to use the courts. It also has to be simple enough to administer with limited resources. The daily grind of zoning is part of what having a community is about. It is how reasonable people have learned to share space. .
I know that you zoning-bashers are thinking at a grander scale, but I am not willing to let you throw the interests of ordinary folks out in your philosophical bathwater. Making places work requires vision. It also requires attention to individuals and their needs. Wherever big picture thinking leads us, it has to scale back down to an effective way of protecting the sunshine on that garden.
III – Two Questions
I am going back to the first principle ablarc acknowledges as true. Treat the cause, not the symptom. I have read nothing in the threads about zoning’s ills that persuades me that conventional zoning is the disease. I don’t deny its impacts, although I believe that they are often overstated. I just do not believe that either eliminating or changing the zoning will solve the problem. I am going to start with two questions zoning-bashers must answer if they are to persuade me that their critique is useful.
First, if conventional zoning is the problem, why is development in unregulated and essentially unregulated communities the same as in those with zoning? I have posed this question on Cyburbia (and in other places) before and never gotten a cogent answer. Is it not because the pattern of development in this country is driven by:
a) cultural preferences that have been developed and reinforced over many decades from many sources – the home plan books you can buy at any supermarket, the coffee table architectural books, Sunset magazine, etc., etc. - and that have been reflected in zoning as it developed through the political process, and
b) economic or market forces that channel developers’ energies in very specific ways. Those forces reflect peoples’ preferences, the strange workings of financial institutions, the IRS code, building technologies, and a myriad of other factors. The way we regulate land use, which is determined by the political process - constantly adjusts and adapts to all of those forces.
Second, if conventional zoning is the problem, why would communities abandon better regulatory systems and return to conventional zoning? The most remarkable example is Fort Collins which had a highly successful, award-winning performance based system that allowed all sorts of flexibility (and which is reflected in decent quality development) for 14 years and returned to conventional zoning. My own example is from a small county in Idaho, which had another award-winning performance-based system. After 7 or 8 years of that system, they adopted zoning districts. In both cases, the planners resisted, so you can’t blame them. Who promoted the change?
It was the landowners and “developers.” Those the zoning bashers say will benefit most from the end of conventional zoning. How can that be? What they said, in both cases, was that they were seeking predictability. What they meant, in both cases, was that they were seeking the right to speculate. It takes a lot of hard work, talent, and risk to make money actually developing land. It is a lot easier to buy cheap (or at least cheaper), get a permit, and sell it. That is where the profits in real estate have always been, all the way back to the frontier, where the speculative abuses of various Federal land grants have been well documented.
That leads us to my critique of both conventional zoning and capitalism. It also leads us back to ablarc’s contention that I am flip flopping. Let’s deal with that first.
IV – Embracing Contradictions
Since I didn’t know that I was going to be challenged in such an assertive way, I didn’t take a debater’s care in framing my arguments. But I am not contradicting myself when I say: a) that zoning is driven by “market forces,” and b) that zoning can run counter to those forces. I may be guilty of mixing levels of analysis/thought in a way that is confusing, but I am not being inconsistent.
In the big picture, zoning is very much a mirror of the cultural preferences, financial policies, etc., etc. that shape real estate development, as acted out in the political process. Zoning also mirrors other forces, like environmental awareness. So, when I shove a structure back 150 feet from the stream to leave a riparian corridor, I am countering a market force with another force, an awareness of water quality issues. There’s no contradiction there, just the complexity of the political process.
But as the examples I gave above illustrate, there is no question that zoning – conventional and otherwise – responds more to the demands of the development community than to anyone or anything else. There are a handful of communities where that is not true, but they are exceptions to the rule.
So, if the development community shared ablarc’s perspective, local land use regulations would be quite different. The development community has the power to make that happen. The reality is that ablarc, as he admits, is representing a tiny segment of the landowner/developer community. Most of those folks, particularly the speculators, love conventional zoning and resist change just as hard (and with more political impact) as the weariest bureaucrat.
V – Capitalism
I am going to pause here only briefly. It is a vast topic and a particular understanding of the economy isn’t really necessary to making my point. I do want to say, however, that I had to cope with Marxism and Neo-Marxism a long time ago as a student of anthropology (a discipline in which Marx may have had his most lasting influence). It didn’t do much for me then. It doesn’t do much for me now. The flaws in the works of Marx seem to me to be about the same as the flaws in the works of Adam Smith, the intellectual godfather of capitalism.
My economic understanding is rooted in the works of anthropologists like Karl Polanyi, the various psychologists who have demonstrated that the rational, individual behavior economists like to pre-suppose is mostly myth (or at least that defining rationality is no simple matter), and the observations of America’s greatest political economist, Henry George. As George learned while watching the real estate market in San Francisco after the gold rush, the root of our land use (and many other) issues is in speculation, and the speculator’s ability to capture value without actually producing anything. That impulse - the desire to make money without any sweat involved - is reflected in conventional zoning, and is why conventional zoning’s apparent adverse impact on development isn’t perceived as a problem by many people. Even those of who know, have a hard time not buying into the system. Would Karen and I actually forgo the appreciation on the houses we own and sell them for a price that working people like us can actually afford? We haven’t had to answer that question yet, and it will be real ethical problem when we do.
VI – Getting Out of the Way
Enough disputation. Whether zoning is a symptom or a disease is an intellectual issue, and it is deadly boring when you are compelled to write this many words about it. The issue is that conventional zoning is making it hard for those who want to, to do good development.
I agree with ablarc that the usual approach to injecting a little flexibility into zoning, the PUD, is not of much help. There are probably places where it works, or can be made to work, but most PUD ordinances (we had a thread about this some time ago) impose a lot of extra paperwork and process. They also tend to be suburban creations, requiring lots of open space in exchange for the flexibility the developer wants. I don’t think that facilitates the type of development ablarc is talking about. The planning tool that better addresses ablarc’s issues is the specific plan, as it is used in California, Nevada, and probably some other places. But it, too, involves a load of upfront paperwork and is only reasonable for large projects.
If we really want to promote a specific type of development, we have to make it the course of least resistance. We just did that here in Williston’s rural areas. To use an open space development pattern, one formerly had to use the PUD process. That adds both time and paperwork to the normal subdivision review process, so why bother? It also has strange, intimidating rules. Williston’s ordinance actually says that to be a PUD, the project must have “exceptional merit.” Needless to say there is no definition of that term! So now, based on the advice of yours truly, open space subdivisions are the use-by-right. To do a conventional subdivision, you’d have to do a PUD! And prove that your conventional large lot project has “exceptional merit.” Perhaps all you zoning bashers will at least appreciate that.
This leads us to one more problem. Writing regulations that facilitate creative development while protecting legitimate public interests is not easy. Again, ablarc is right. It only takes a few minutes at the photocopier to “write” a zoning code for a new conventional PUD, but writing one for a more diverse, more creative type of project takes a lot of work.
So, yeah, it is hard to write good regulations. But thinking that the zoning is the problem doesn’t make it easier. I once worked, briefly, for a large landowner who finally gave up on a performance-based, neo-traditional approach because every time we went to hearing on the proposed code, the developer heard, over and over again, that no builder would buy a block of lots. The place would just be too weird. They couldn’t take the risk. I also note that financing mixed use projects is difficult in many communities, including this one. Bankers don’t much like risk either.
The locus of change HAS to be the perception of the folks who make investments in development, not the zoning code. If the landowners and development community decide that a different pattern of development is desirable (i.e. profitable) the rules in most communities will change within a few months. The reality is that the development community isn’t there, yet, and most landowners are even farther out.
So, ablarc, encourage one of your clients to come shopping in Williston. There are two sizeable parcels that I suspect could be had (though not cheap in this market) that would make a huge difference in how this community looks and works. They are both available for mixed-use, pedestrian-friendly development. The limits on the capacity of our sewage treatment plant create an obstacle, I can’t change. Only so many units are possible. But we are changing a lot of other things. By this time next year (unless I get an unpleasant political surprise) doing a good project will be considerably easier.