Retrofitting strip malls – presentations

Presentations given at CNU 31 on June 2, 2023

1. Payton Chung, Westover Green – introduction (Google Slides)

2. Monte Anderson, Options Real Estate

3. Susana Dancy, Rockwood Development

4. Abbey Oklak, Kimco Realty

The traffic pattern around Crossroads in Cary wasn’t exactly intentional

NCDOT recently reactivated plans to rebuild Raleigh’s busiest interchange, between I-40, I-440, and US 1/64 on the border of Raleigh and Cary. Much of the plan revolves around trying to fix the troublesome road arrangement that exists around Cary’s largest retail center, Crossroads Plaza. But how did this emerge?

Crossroads Mall was originally proposed in the late 1980s, just a few years after I-40 was constructed around the west/south of Raleigh, by the Australian developer L.J. Hooker. Hooker proposed the Triangle’s largest enclosed shopping mall, just one of many they planned across America. (They only ever completed onewhich did not do well.) The site had been assembled by NCNB (now Bank of America) and an Ohio pension fund, who also planned an office park to the south.

Crossroads Mall was to have been surrounded by a bean-shaped ring road; the outline of its southern half exists today as Caitboo Ave. (Imagine if it arced around the north edge of the shopping center.) Four access roads would connect to the ring road: the largest would align with the existing 1/64-Walnut interchange, and three more access roads would connect the ring road to the west, south, and southwest. Offices, hotels, and more shops would fill in the land south to Dillard Rd.

Crucially, plans filed in 1986 showed Crossroads Blvd. extending east across Jones Franklin, then curving north and ending at its own dedicated Beltline/I-40 trumpet interchange, west of Avent Ferry Rd. This would have balanced access to the mall such that shoppers could approach it from freeways in four directions: US1/64 from the southwest (via Walnut), I-40 from the northwest and southeast (via Crossroads), and the I-440 Beltline from the northeast (via Jones Franklin to Crossroads).

Things went awry quickly. The Beltline interchange would require purchasing land from Raleigh’s Lake Johnson Park, and Raleigh hardly wanted to facilitate such a huge economic boon for Cary. The flyover ramp from US1/64 to Crossroads Blvd. was concocted as a hasty replacement way to get direct freeway access from Raleigh to the mall.

Hooker’s business empire — weighed down not only by boatloads of debt but also the fantastically stupid purchase of several fading luxury department store chains — rapidly collapsed in the early 1990s real estate bust, but not until after the Crossroads site was cleared and roads like Meeting St. and the 1/64 flyover were built.

A new developer bought the site at a bargain price and, recognizing the shift underway from enclosed, full-price malls to “power center” strip malls filled with off-price discounters, redesigned the site for what was at the time the world’s largest power center. Instead of shops surrounded by parking and roads, the new layout required roads and parking in front of shops. But Caitboo and Crossroads had already been built south of the site, and a power line corridor meant that a good chunk of the site’s northern half was unbuildable. The solution was a ring of shops pierced by Crossroads Blvd, with Caitboo treated like a forgotten back alley. Even the vast power center didn’t fill the entire mall site; the cinema site was left undeveloped at first. (Note that what’s now Target and Home Depot was also owned by Hooker at the time.)

The reconfigured Crossroads Plaza was indeed a great financial success and spawned copycat developments all around it, adding to the strain on Walnut St. The road system there was cobbled together from various bits that were originally intended to serve a very different function. The original plan had access from the west and the east; instead, most mall access ended up coming from the west, which overloaded Walnut St. (Traffic volumes on Walnut are >3X higher than on Jones Franklin or Dillard, and ~30% higher right in front of Crossroads than on either side.) Once inside the mall, traffic was to have split up in both directions to flow onto a ring road; instead, cars are mostly funneled onto one route (Meeting to Crossroads).

What’s ultimately needed is to rebalance Crossroads traffic from the west to the south or east approaches, and that’s something that NCDOT’s plans make some progress towards by removing several Walnut St. exit ramps and aligning them with Dillard Dr. instead. Improved street network connectivity and improved wayfinding would also disperse vehicles away from just Walnut St.

(Originally posted to City-Data; images via Cary’s site plan archive)

Testimony to Arlington Planning Commission, March 2023

(Italicized sections were cut entirely from the delivered testimony for brevity.)

Thank you for the opportunity to speak. My name is Payton Chung. After grad school for planning at Virginia Tech in Arlington, I am now a developer of Missing Middle scaled housing. Because that job does not yet exist around here, I mostly work in Raleigh, NC, a prime destination for people who have been priced out of northern Virginia. I can attest that Raleigh’s Missing Middle text changes have made it possible for me to offer smaller, lower-priced houses than the large new houses built across the street just before the text changes. Many of those arriving in Raleigh have been priced out of places like Arlington, which has better infrastructure than Raleigh — much better transit, no water shortages, a regionwide trail network, less crowded schools — but which lacks sufficient housing infrastructure.

The “tall or sprawl” dichotomy of Arlington’s “bulls-eye approach” to planning relies almost entirely on two uniquely high-cost housing types: land-intensive detached houses and capital-intensive high-rise apartments. As a result, it necessarily results in high housing costs. Missing Middle Housing offers a middle ground: less land than detached houses and less materials and labor than high-rises. Yet Missing Middle Housing production, like production of anything else, best achieves lower costs once it achieves economies of scale. It can only reach its full potential for lower costs if it becomes widespread and well-practiced.

Not only does this call for removing artificial zoning limitations, but it also requires related changes to building codes, financing practices, and construction practices.  That means allowing more units, in more locations, and not rationing it with a countywide cap. Redevelopment is already an inherently slow process, since it’s limited by land availability. Only 3/10ths of 1% of Arlington’s single family houses are listed for sale today. Progress towards the county’s equity, affordability, or sustainability goals should not be further limited.

EHO will not solve the affordable housing crisis, but it will make existing subsidy dollars and programs go much further. For instance, Virginia Housing offers subsidized loans to first-time homebuyers up to a cap of $665,000. A house at that price is roughly affordable to the median Arlington household. Right now, there are zero new construction houses available in Arlington to meet that budget. Some older houses are available, but with either maintenance needs or condo fees that would sink many first-time homebuyers. However, there are 108 new homes available under that cap in equally land-constrained, equally highly regulated DC and Alexandria — and 98% are in “missing middle” sized buildings that are basically illegal to build in Arlington today. Instead, new houses in almost all of Arlington are available only for households earning more than the President of the United States — top-3% incomes in America.

The EHO text attempts to incentivize 4-6 flat buildings, but building codes and lending practices continue to favor fee-simple townhouses. I suggest further study to adapt building codes to enable flats, review townhouses’ specific urban design challenges, require public access easements so that driveways contribute to the street network, and allowing townhouse accessory dwelling units– “English basements” are an established pattern for attainable housing in this region.

And last, a quick response to complaints about infrastructure sufficiency. Infrastructure is continually repaired and replaced, for example through Arlington’s $4.4 billion Capital Improvement Program — including almost $1 billion just in water infrastructure. We’ve known since the federal government’s 1974 “Costs of Sprawl” report that expanding existing infrastructure in existing urbanized areas is more cost effective than building it new in rural areas.

Take rail transit, for example: restricting growth here means that Arlington pays WMATA extra to run trains with excess capacity here, while Virginia spends billions to expand rail service for Arlington commuters’ hour or two-hour trips to Ashburn and Ashland. Instead, Arlington should welcome more of those commuters to live here and take the trains built decades ago, when doing so was much cheaper. At a time when new houses are being sold to Arlington commuters in Caroline County, 70 miles down I-95, we need to be cognizant that while infrastructure in Arlington might not be perfect, it’s much better than infrastructure elsewhere.

It’s especially puzzling to hear complaints about strained infrastructure come from neighborhoods where the population has shrunk, rather than grown. Even as Arlington’s population grew by 15% since 2010, CPHD estimates that the population in Old Glebe declined by 13.6%. When Arlington’s low-density neighborhoods were built, life expectancy was still in the 60s; now a typical Arlingtonian lives to 85. That’s terrific news, but it means that Arlington needs more housing units even for exactly the same population — much less a growing one.

I commend the Commission and County for the progress made to date. This zoning change may seem momentous, but even the dry and bitter pill of zoning reform is not a magic pill. It can merely reshape changes that are already occurring to neighborhoods, and hopefully in a way that shifts rather than reinforces the unjust, unsustainable status quo.

Support for Z-18-22

Dear Raleigh City Councilmembers,
I urge you to support Z-18-22, the Western Boulevard TOD overlay mapping. I grew up along this corridor; my parents have lived along this corridor for nearly 50 years, as my father had a long career teaching at NCSU. The sharp contrast between the lively, pedestrian- and transit-oriented Hillsborough Street corridor north of NCSU and the dangerous, car-oriented Western Boulevard corridor south of NCSU was something that even as a small child I recognized as an urban design challenge. Now I’m an urban planning professional with 20 years of experience in the field, and I’m thrilled to see that the city finally has passed CP-10-21 and is considering Z-18-22 – a realistic, actionable implementation plan that will guide the transformation of Western Boulevard into something better than a traffic sewer.

My family’s familiarity with these neighborhoods is why we are invested in property there – and why we’re now working with the City of Raleigh’s real estate department to sell land that we own within this area for subsidized affordable housing development. We are selling at a discount to what we could get on the open market because we strongly believe in the vision set forth by the city’s adopted Western Boulevard Corridor Study (CP-10-21). I have seen many attempts over decades to realize the potential of the ​complicated intersection of Western, Hillsborough, Jones Franklin, Buck Jones, and Chapel Hill roads, but none have come to fruition because they were not matched by ​sufficient ​public infrastructure investment. This Bus Rapid Transit Line, ​which was funded​ through a referendum of Wake voters in 2016, provides that impetus​ -​ and has been matched by ​city voters’ 2020 funding commitment to​​ affordable housing.

At tonight’s public hearing, you will hear a great deal of misinformation, fear, uncertainty, and doubt about the changes portended by this proposal. I’ve listened closely to previous public comments against this proposal, and one thing that’s struck me is that almost all of the complaints identified are about results of the *PRIOR*, car-centered development ​paradigm that​ resulted in the Western Boulevard we have today – and which, as long as the existing zoning remains, is still the legally mandated status quo that must be maintained.

Much of this corridor retains zoning that was enacted in 1960. The “against” side ​seems to ​think that, by keeping the legal fiction of 1960 zoning on the books, they can bring back the world of 1960 and its​ world of​ modest houses on large lots along spacious roads. That’s a view of the world that belongs in an antique store; zoning is a law, not a time machine. The problems of today resulted from past decisions like low-density zoning, and particularly the mismatch between 62-year-old laws and present-day realities​:​ a much larger population, much greater household diversity, and better knowledge of environmental consequences. Preventing changes ​that update those old laws​ will​ only exacerbate that mismatch​​.

1960’s zoning may have made sense here at a time when NCSU had 6,500 students (the size of Elon College today), RTP was an empty promise​ with zero jobs​, and when Wake County had fewer than 170,000 residents (the size of Pitt ​Count​y​ today). ​That zoning may have made sense then, before we knew that car dependence kills millions annually from crashes and from air pollution, or threatens the lives of billions through the global warming it causes. It may have made sense ​then, ​when federal officials, in thrall to the auto and sprawl industries, were handing out money for highways and ticky-tacky subdivisions​. It may have made sense then, when local officials sought to use zoning to separate (and restrict) races and classes and family types.

​​Our world is different today, I hope our public officials know better today, and our zoning laws should reflect​ today. 1960’s low-density zoning makes no sense in the world of 2022, where NCSU has 34,000 students, we know there are better transportation choices than driving, and where low-density zoning results not in modest old houses​ -​ but rather $900,000 McMansions​ here,​ and commuters​ to here forced to​ driv​e​ in from 5​0 miles away.​

Z-18-22 is a bold and different approach that will address (but cannot​, like any one policy,​ solve) the complaints that the “against” side makes. Instead of 16 luxury townhouses, my family’s land can become 100 affordable apartments and a park. Unlike those who blame (as yet untried!) Z-18-22 for higher housing prices, we know that this rezoning will actually do something about the lack of more affordable housing choices. Only 1% of all American houses are new in any given year, so laws should allow that 1% to best reflect the houses we want in the future​.​ Z-18-22 clearly states that ​Raleigh want​s​ more choices, not just $900,000 mansions.

Allowing more homes to be built, especially smaller houses (using less materials) that use less land, absolutely will ease the housing affordability crunch. As Congresswoman Alexandria Ocasio-Cortez says, “the reason why people are on the streets isn’t just some elusive housing or market phenomenon. It’s because we’ve chosen not to build.” The voters of the city of Raleigh have risen to the challenge by approving funding for affordable housing, but now we need places to put it – and Z-18-22 does just that. Raleigh does not want to be in the situation where Oakland was in 2018, where mayor​ Libby Schaaf​ said “we had local bond money to purchase new shelters, but could only find one building. We ​[didn’t] have enough building stock to create supportive housing.”​ Nor does Raleigh have to be; through its zoning powers, it can create many new opportunities to create new housing at many price points.​
The Western Boulevard corridor will continue to transform with the times; that much is certain. What we are choosing is whether to continue the deadly, unsustainable, unaffordable, unfair status quo chosen in 1960 – or to pursue the transformation that Wake County voters affirmed in 2016 by voting to create BRT on Western Boulevard. Z-18-22 is another step towards fulfilling the voters’ shared vision of Wake County voters – and another step towards ensuring continued funding from the Federal Transit Administration, which is closely evaluating whether federal taxpayers’ monies are well-spent in places whose zoning laws truly welcome transit.

I thank you for your attention. I look forward to further working with the City of Raleigh to advance our shared vision of a greater Raleigh.​

NCAP testimony for NHTSA

A safety crisis is unfolding on America’s streets. Pedestrian and bicyclist deaths have increased by 50% over the past decade, and overall motor vehicle deaths last year increased by the largest percentage in US history. This is a phenomenon unique to the United States; since 2010, US road deaths increased by 31%, while EU road deaths DECREASED by 33%.

Clearly, what NHTSA has been doing has not been enough. Many of these deaths could have been avoided with better car safety standards and in particular an improved New Car Assessment Program (NCAP). Every other NCAP program elsewhere in the world has long evaluated safety for road users outside of the vehicle. Indeed, the UN’s 2011 Global Plan for the Decade of Action for Road Safety specifically highlighted “application of pedestrian protection regulations” within vehicle safety regulations (Pillar 3, Activity 6).

I commend NHTSA for finally taking the first steps to stem this wave of preventable deaths and injuries. What’s proposed is not nearly enough, and does not meet standards accepted elsewhere in the world that protect people on foot, on bikes, and using mobility devices from the increasing threat of large vehicles.

I join America Walks, the National Association of City Transportation Officials, and other organizations to ask that NHTSA protect people outside of cars with an NCAP that measures and rates:

  1. Smaller and safer hood and bumper designs to reduce fatalities and serious injuries for people outside vehicles;
  2. Features capable of sensing and protecting people outside vehicles, including children, bicyclists, people using mobility devices, and people with darker skin tones;
  3. Intelligent speed assistance systems that automatically limit unsafe speeds;
  4. Direct visibility requirements that allow drivers to see people outside of vehicles, especially children. Cameras, mirrors and sensors cannot replace the need for direct sight.

Critically, vehicles that score poorly on pedestrian protection, direct visibility, or that allow dangerous speeding should be ineligible for 5-star ratings. Even the most advanced ADAS technologies have proven insufficient at preventing deaths.

NHTSA also must move to incorporate the same technologies and designs into the Federal Motor Vehicle Safety Standards (FMVSS).

Vehicle safety standards that save the lives of people outside cars shouldn’t be left to consumer choice. NHTSA mandates equipment like seatbelts and airbags that protect vehicle occupants; it needs to update the FMVSS to protect everyone on our streets, not just those in vehicles.

[Adapted from America Walks]

Testimony on Comp Plan update, Ward 6

Thanks to Councilmember Allen for this opportunity to speak. I’m Payton Chung, LEED Accredited Professional in Neighborhood Development, and I have 20 years of experience in urban planning policy, notably in urban design and affordable housing.

Comprehensive planning is how a city adapts to an inevitable future. No plan, and indeed no action a city can take, can prevent that future from occurring.

One inevitable aspect of the future that deeply worries me, as one of the three billion humans living near sea level, is climate change. I previously testified that the updated comp plan does an adequate job of outlining several of the challenges and forward steps that DC will need to take over the next decade to forestall and adapt to the climate catastrophe. If left unchecked, many of Ward 6’s most vulnerable areas, for example the James Creek corridor along Delaware Ave SW, will be uninhabitable within my lifetime. I also testified earlier that the next iteration of the Comp Plan should address this existential threat to DC’s future as its foundation, not as one element among many.

I’d like to briefly touch upon the price of housing. Increased rents cause new buildings, not the other way around. Once rents surpass a level that can pay the surprisingly high underlying cost to build new houses, then new buildings will get built. Stopping new buildings might avoid offending some people’s aesthetic sensibilities, but does absolutely nothing to change the underlying demand for new housing. We can see this in the fact that rents have increased faster in Capitol Hill, with almost no new housing construction, than in Capitol Riverfront, which has lots of new housing construction

I’m glad that the comp plan accepts that more houses are needed right here in Ward 6. Ward 6 residents enjoy many transportation choices, and so we produce far less carbon per capita than most Americans. The most effective contribution that neighborhoods like ours can make to the climate crisis is to let some more people in on our secret, and allow more neighbors to benefit from this fantastic location. To be clear, almost all of DC’s population growth results from babies that are born here, so growth is a matter of letting children stay here, not a matter of outsiders vs. insiders and us vs. them.

DC alone can’t change growing income and wealth inequality, or the fact that new houses are expensive to build – though it must continue to expand subsidies to help lower income residents access homes in high opportunity areas. But moderate- and middle-income residents could afford new construction on the private market, if only it were legal to build new homes everywhere, not just in a few tiny areas that I’ve called “instant neighborhoods,” and the comp plan calls Land Use Change Areas. This comp plan update begins to soften the distinction between Land Use Change Areas and Neighborhood Conservation Areas. That distinction has succeeded too well at comforting the District’s already comfortable single-family homeowners, sometimes overwhelming LUCAs with lots of change all at once, and pushing all new housing demand into high-rise apartments, which are the absolute most expensive kind of house to construct.

DC’s zoning makes it illegal to build all but the most expensive possible houses: detached palaces surrounded by huge yards in Ward 3, or high-rise studios surrounded by costly concrete and steel in Ward 6. Yet somehow, we act surprised that housing costs are out of reach. Allowing a broader variety of housing choices across the entire spectrum of housing types and neighborhoods, and particularly making it simpler to add new units in less costly low-rise apartments, will better balance the housing market and make sure that our housing dollars, whether private or public, go further.

P Street SW cycletrack testimony

My name is Payton Chung, and I live in ANC 6D. Thank you for the opportunity to speak tonight. I support the current proposal for a cycle track on P Street SW, and was greatly disappointed in tonight’s resolution (attached).

The existing P St SW does not work well for pedestrians, bus riders, drivers, scooter riders, OR bicyclists of any age. It excludes all except drivers (when it’s not backed up with traffic) and only the most agile bicyclists. I would point out that 1/3 of Americans cannot drive, notably disabled and elderly people but also children, and that 40% of Southwest households do not have cars, whether because they cannot drive, cannot afford to drive, or simply choose other ways to get around — all of which are safer, cleaner, greener, quieter, and more space-efficient than driving, and therefore deserve not just encouragement but full-throated support.

Protected bike lanes are the definition of inclusive street use. They make it possible for everyone to use the street for bicycling or micromobility. I have seen children on scooters, elderly tricycle riders, and disabled motorized wheelchair riders in protected bike lanes.

This segment of the proposed Anacostia River Trail is a critical east-west connection that will link not only both sides of the river here in the District, but connects to an entire five-state region. Thousands of people, including residents like me but also employees and customers for local businesses, use these trails already, including many low-income DC residents in communities both west and east of the Anacostia River. Many more would use these trails if there were a safe and obvious connection across the Southwest Waterfront neighborhood. I’ve personally talked to many people who have told me that they’d like to try bicycling across the area, but don’t see how they can do that today because the trail abruptly ends at my front door.

In a perfect world, the Army would allow a trail on their property; N St SW and O St SW would not have been privatized into culs-de-sac and would be available for public purposes, like bike lanes; and  there would be more reserved parking for people with disabilities. Alas, we don’t live in that perfect world, and DDOT’s proposal is the best balance available in this world to ensure that all of us are allowed a safe passage down the street.

A cycle track of this design is a proven safety strategy, which could potentially save lives and allow more residents to safely choose healthful and environmentally sound transportation choices. Implementing these strategies should within our public spaces should be matter of fact, not controversial, and should be able to be implemented quickly, rather than requiring months of reviews.

Idle speculation: US-1 edition

Some people watch “House Hunters” for hours on end, and others peruse Curbed to imagine themselves inside huge mansions. Personally, I’m partial to idly imagining what could happen with those quirky old buildings that show up on the commercial listings.

College Park US1
(Baltimore Avenue looking south from College Park towards Hyattsville and Riverdale Park)

4415 Oliver Street, a two story house turned office just off Route 1 in the Hyattsville Arts District could be renovated into a version of the Form Follows Finance Fourplex. (It might even qualify for a conforming residential renovation mortgage.) It has the right live-work zoning, which is surprisingly scarce in downtown Hyattsville. At $350K for 1800′, it’s cheaper than nearby houses–around the corner, the same $350K only buys you a 1200′ house. OK, so it might only fit 2-3 units instead, but still a good price for someone with some architectural ingenuity. Indeed, it even pencils as a teardown.

An interesting Opportunity Zone play nearby: a 33 acre strip mall at the doorstep of the future Riverdale Park-Kenilworth Purple Line station (one stop from UMd’s research park) is for sale, though probably for a high price. The new, but as-yet unmapped TOD zones in Prince George’s give very wide latitude to its future owner.

Elsewhere in Riverdale Park, there’s a <2 acre residential tract for sale. Looks at first glance like an interesting pocket neighborhood opportunity ( close to downtown Hyattsville! might be able to do something unusual with the street ROW!)–but even the brand-new zoning code only allows large-ish single-family houses there. Blah.

In other news, Forest Glen‘s Castle is back on the market at $2.8 million. I have zero ideas for it; after reading about the place, I’m utterly unable to picture it as anything other than “the Hungarian Whorehouse.”

After those cheers, some (more) jeers for Fairfax County. This vacant quarter-acre lot on Richmond Highway, which appears to be a leftover from a prior subdivision, looks at first glance like a prime chance for a residential scale live/work-plex. But no: “Highway Commercial” zoning doesn’t allow residential by the 7-11 and Five Guys, even though the local sector plan calls for three-story mixed-use. Instead, it would require apartment (or PUD!) zoning… which requires a 2.5 acre minimum lot area, because this is the suburbs. OK, so technically that MLA doesn’t apply in redevelopment areas like Richmond Highway, but c’mon Fairfax, it’s the 21st century, individual vertical mixed-use buildings exist.

Idle speculation: Opp Zone, meet planned community

The Opportunity Zone maps for greater Washington and for Raleigh had two particularly puzzling inclusions: the Lake Anne area in Reston, and the Kildaire Farm area in Cary. How is new investment intended to transform planned communities, which had always been intended to remain exactly the same?

I happen to have a soft spot for both areas (pioneering planned communities in their respective areas) so I looked around at both and just could not figure out how this is expected to work.

OZs require drastic change
In order to qualify as an OZ investment, a real estate investment has to meet the “substantial improvement test” — similar to the Historic Tax Credit. This essentially means that a renovation must “double the basis,” or spend as much on the improvements as the original value of the building (minus the land).

Accountants often use an 80/20 guideline to split the value of a property, with 80% of the value assigned to the building and 20% to the land. Sure enough, the tax value of even the mixed-use shophouses around Lake Anne* is split 80/20.

Reston: Lake Anne Village Lake Anne’s waterfront, with shophouses behind.

That means coming up with the acquisition price, and then spending another 80% of the purchase price on improvements. It’s pretty much impossible to do this within an existing building, unless said envelope is in very bad shape (e.g., a burned shell). The tax values of Lake Anne shophouses run about $650,000, of which $521,000 is the building—a breathtaking amount to spend on anything shy of full reconstruction.

Now, it’s easy to spend that 80% if you’re building something new, like an addition or new buildings. But that brings us to:

OZs pretty much require by-right development
The OZ law reserves its most lucrative tax breaks for capital gains that are reinvested in 2019, and thus deployed into new construction soon thereafter (within 31 months, according to the first set of regulations). And while the program can be used for many kinds of investments, including equity stakes in operating businesses, its most straightforward application is for construction of rental real estate.

In 1984, Reston promised new residents that nothing would ever change. Oops. No changes allowed here.

That timeline leaves precious little time to deal with the uncertainty of, say, the rezoning process. But these two areas are both pretty much entirely within the purview of strictly controlled planned-community zoning districts. Hence, any changes would have to go through not only appearance boards, but also reopening the entire planned community zone — surely a contentious process. There’s a reason why entitled development opportunities in OZs are suddenly drawing lots of investor interest.

While newly issued regulations do permit some space for regulatory delays, no reasonable investor would take on this sort of risk, given that falling afoul of the OZ rules results in tax penalties.

What could happen

Therefore, the only reasonable investment an Opportunity Fund could make would be into an already-entitled, large-scale development. There is one such proposal that’s been tabled near Lake Anne, and on county-owned land no less, which might explain the county’s interest in getting the area certified as an OZ.

Meanwhile, there are a few single-family houses in one corner of the Kildaire Farm tract which are zoned for multifamily, and thus conceivably could be scraped and redeveloped. There’s also a pocket of houses outside the PUD on larger lots, which could be added on to — perhaps using Cary’s surprisingly lenient internal-ADU (“Utility Dwelling Unit”) law.

* Again proving the rule that the key to unique retail is small, divided ownership

Against Euclidean zoning

Since takedowns of Euclid are thankfully all the rage these days…

The most obnoxious question I got during oral defense at UChicago was from a genuine-article “provocative libertarian” economist, who launched a broad attack on zoning as a severe impingement upon “freedom” (i.e., his treasured consumer choices). My stammering defense of zoning then amounted to, pretty much, “because we can.” (Zoning and preservation are, seemingly by historical accident, two of the few broad regulatory tools the US Supreme Court has granted to local governments.) Zoning is what planners do because it’s what we’re taught to do, and what we’re used to doing — but planners rarely question whether it’s the right tool.

In a planning law class back in 2011, we were asked to make oral arguments for or against a theoretical municipality adapting, or tossing out, its existing zoning laws. Having checked that said assignment is no longer being assigned, here are the notes I wrote up for my broadside against the institution of Euclidean zoning.

Coming up with this was pretty revelatory, honestly. I already had ten years of experience with zoning codes and knew that its structure was kludgy — but had also once (at my BA oral defense) mounted a spirited defense of zoning and its Constitutional basis against a purely theoretical attack by a genuine-article Chicago economist.

I’m a little less sold on FBCs these days, having learned a bit more about their limitations and administration — but the anti-Euclid arguments have only been bolstered by what I’ve learned of zoning’s history since.

For too long, our city has struggled to regulate land use under the rubric of a conventional zoning ordinance. This ordinance, although revised within the past generation — unlike in many other major cities[1] — still has its roots in a fundamentally flawed legal framework that derives its authority from the landmark 1926 Euclid vs. Ambler Realty[2] ruling by the Supreme Court.

  • Euclid established a legal framework of regulating use first, density second
  • Society has changed since 1926; social problems, social goals, social structure have all shifted dramatically
  • Our understanding about how to shape cities, and how best to shape cities, has also changed
  • New problems demand new solutions

The zoning code that the city currently labors under suffers from an outdated, inflexible structure that fundamentally cannot address or implement the lofty goals embodied in the city’s ambitious new Comprehensive Plan. If it is to implement that plan—as it is legally obliged to do, under state law—the city must therefore discard its current zoning ordinance and replace it with one organized around form instead of use and density.

1. The zoning code is organized first and foremost around the outmoded paradigm of regulating use.

  • Zoning began as a way to regulate nuisances inherent in many urban land uses[3]
  • In particular, Euclid set up a list of reasons for regulating land use: fire apparatus, safety (crime), reduce traffic and confusion and thus street accidents, nervous noise, “favorable environment in which to rear children,” “free circulation of air and monopolizing the rays of the sun…”
    • Zoning codes since then have focused on these, since it set the regulatory precedent
  • Yet since the 1920s, many of the externalities and nuisances that zoning was originally intended to prevent have been regulated separately
    • Pollution of air and water
      • Laws preventing industrial pollution have been so successful that the primary sources of urban air and water pollution are now “non point source”[4]
        • Has little to do with large industrial facilities
        • Outside the realm of control for zoning
        • Indeed, to the extent that runoff and smog are caused by parking lots and automobiles, our region’s emissions are likely exacerbated by suburban zoning
      • Enforcement and monitoring of these laws is done by specialized, trained teams[5] better able to protect neighbors from nuisance—even hidden ones, like toxic chemicals—than mere distance
    • Noise
      • Leading complaint is airplane noise, which is increasingly regulated by federal law[6] and by airport regulations
    • Fire suppression through much more stringent fire codes, including sprinkler and fire alarm requirements
      • Fires have become so rare[7] that our fire department responds to more car crashes than fires
        • To the extent that our zoning ordinance foster auto-dependent development, it could actually be undermining life safety
      • Public health
        • Antibiotics, not fresh air in houses ensured by zoning ordinances, that ultimately cured the low-level tuberculosis pandemic
        • Improved sanitation and medicine, not zoning, takes credit for public health advances of 20th century
          • 4 of the 10 most long-lived countries in the world are very high density city-states (Monaco #1, Macau #2, Singapore #7, Hong Kong #8), all of them prime examples of the high density and mixed uses that Euclidean zoning “protects” Americans from in the name of our health. The United States is #50 by the same measure.[8]
        • Housing code minimums in many respects are broadly superseded by today’s living standards
          • Tenement Law remains in effect, and its remnants are throughout the zoning ordinance
            • Definitions of families and households are woefully out of date, given shifting family composition[9] towards non-family households
              • “group houses” of house-mates particularly young adults or students[10]
              • co-housing usually requires contentious zoning changes
            • Minimum space per occupant outdated
          • Today’s use and bulk restrictions in the zoning ordinance have at best a tenuous nexus to actual public health, safety, and welfare
            • Setback laws
              • No public health need has ever been established for a one-acre-lot zoning category, nor for 100 ft. front setbacks
              • Instead, such excessive standards are more likely to ensure that no homeowner need view another’s laundry lines
            • Separation of uses
              • What public health objective is facilitated by ensuring wide distances between residences and modern industrial facilities?
              • Such facilities are nowadays as likely as a typical household to work with toxic chemicals
            • Noxious uses can and are handled and sited with other regulations
              • Siting of public facilities like landfills and prisons regulated under state law
              • Siting of alcohol-related uses largely accomplished outside zoning
              • Sign regulations are already outside city’s zoning ordinance

2. The zoning code’s “cumulative” structure inherently valorizes single-family housing above all else, which has insidious effects throughout the system

  • Cumulative or pyramid zoning establishes single-family housing at the top of the ladder, and they are allowed in almost all zones—“They must not be a problem to anyone, so they’re allowed in all zones”
    • The pyramid intrinsically valorizes larger single family houses and larger lots
    • Zoning sets up a proscriptive approach, typically with maximums or minimums but rarely sets two bounds. One end is almost always left open, and the net result is that it makes less dense, sprawling development easier to build in more zones
      • Maximum FAR = smaller buildings always welcome
      • Maximum density = fewer houses always welcome
      • Minimum lot size = bigger lots always welcome
      • Minimum parking requirements = bigger parking lots always welcome
      • Minimum setbacks = bigger yards always welcome
    • Proscriptive approach typically results in all development within a district adhering to the maximums, preventing any diversity of building types and promoting segregation by income and family type[11]
  • Maintaining property values and residential exclusivity are specifically mentioned in Euclid as an appropriate use of zoning laws (“development of detached house sections is greatly retarded by the coming of apartment houses”)
  • “Affordability” is the opposite of exclusivity, and there has been momentum towards that end of the spectrum
    • Affordability is an integral part of the housing section of the comprehensive plan
    • Inclusionary zoning has been debated locally
    • Housing and transportation have grown substantially as a share of household expenditures since the 1920s[12]
  • Nuisance flows both ways: not only are detached houses threatened by other uses, but other uses are threatened by residents. Cumulative zoning does a poor job of protecting from residential users.
    • Industrial operations are constantly threatened by residential neighbors, so much so that some cities have developed restrictions to protect industrial zones[13]
    • Farms at the exurban edge receive complaints by neighbors over early-morning noise, smells, truck and tractor traffic
    • Nightclubs frequently threatened by encroachment of residential, particularly owner-occupied housing, into the industrial and commercial areas that they typically locate in
    • Although our zoning ordinance does not protect views, residents are much more likely to block new construction if it obstructs their views; this inhibits commercial growth, particularly at the edges of downtown
  • Zoning’s emphasis on promoting single-family residential protects against overcrowding, but what about under-crowding?
    • Over-crowding was a public health concern, typically associated with tenements
    • Now more likely associated with large immigrant families living in single-family houses
    • Under-crowding also has consequences, mostly associated with suburban sprawl—particularly the high cost of providing public services, from life safety to transportation
    • Evidence shows that zoning codes’ bias against multi-family construction has led to the systematic under-supply of multi-family across entire metropolitan areas[14]
  • Despite many attempts to fix the code, the blunt distinction based on occupancy poorly addresses the range of moderate density housing types available
    • Euclid ruling created a bright line distinction between single and multi-family: “[apartments] bringing, as their necessary accompaniments… increased traffic and business… [traffic increase injurious to children in] “quiet and open spaces for play”[15]
    • Creates problem in existing areas of mixed single- and two-family houses
      • Contextual infill, or even replacing what’s already there, becomes very challenging
    • Accessory apartments, coach houses, and “granny flats” cause a lot of trouble with the zoning ordinance—there’s a spectrum between “bedroom” and “housing unit” but the zoning code doesn’t make that distinction
    • Interesting low-scale multi-family building types—zero-lot-line houses, bungalow courts, courtyard apartment houses—have been prohibited under conventional zoning and can only be built under onerous discretionary approval processes

3. Yet use and density regulation is powerless to affect urban design

  • Zoning, by itself, makes for a lousy way of controlling urban design
  • Its proscriptive approach forbids bad development, instead of encouraging good development[16]
  • This failing can be seen in the vast array of other methods that have emerged to attempt to regulate urban design and achieve better development
    • design review committees
    • discretionary approvals (site plan review, planned unit developments)
    • special exceptions, zoning changes
    • overlay, character, neighborhood districts
    • historic designations and conservation districts
      • These have proliferated to such a great extent partly because they are the only reliable way to regulate design
      • Yet they are only able to maintain the existing appearance of a district, rather than guide growth into something else
    • private development covenants and restrictions
      • These have become so complex and punitive that they are often confused with zoning in the public mind—because what else could possibly be so complicated?
    • Net result is a system of Byzantine complexity, completely beyond the comprehension of all but a select few zoning lawyers and zoning administrators
    • Ludicrous over-regulation results for small projects, such that a contextual infill set of townhouses in a historic district—the sort of development that will be needed if the city is to promote more infill—requires just as many approvals and months of work as an 300-acre subdivision
  • The primary means of controlling design in the zoning ordinance is through setbacks and through Floor Area Ratio, a crude measure of building bulk. FAR is particularly ignorant of urban structure, block structure, and scale
    • “FARs by themselves give communities little control over the shape and placement of buildings”[17]
    • Rewards tall buildings, assembling large lots
    • The 110-story Sears Tower was built as-of-right under Chicago’s FAR restrictions, originally intended for 16-story high-rises
  • “Zoning’s lack of a positive prescription for physical form has facilitated the intrusion of incompatible development types into traditional urban neighborhoods.”[18]

4. Further amendments will only worsen matters.

  • Much tinkering has been done around the edges of our zoning ordinance
    • overlay districts
    • mixed use zones for downtown and neighborhood commercial streets
  • These changes do not address zoning’s failings in 90% of the city
  • Changes like these merely shovel more complexity and opaqueness onto what is already an opaque process
  • Changes like these are typically reactive
    • Every so often, someone finds a loophole in the zoning ordinance, exploits it, ruins neighborhoods, and then shames City Council into closing it using yet another zoning patch. This process is not unique to our city.
      • The “Vancouver Special” was a 1980s abuse of accessory unit regulation, resulting in numerous out-of-character houses[19]
      • “Four plus ones” and “dingbats,” apartment buildings hovering over a sunken parking podium, addressed the shortage of studio apartments in 1960s Chicago and Los Angeles but were found unsightly by neighbors
    • Rarely do we launch such code-fix efforts until damage has already been done to a neighborhood
    • Has been done a few times in conjunction with neighborhood plans, but such neighborhood-specific zoning (like overlays) just add even more complexity to the zoning code
  • Result is a Frankenstein of regulation: far too complex text and procedures. Neighbors and citizens cannot understand and cannot reinforce zoning administration
    • “And so, we have, as they say, the best—really the worst—of all possible worlds. We have every possible world.”[20]
  • Zoning is no longer a reliable and predictable guide to neighborhood change
  • Has become too easy to game the zoning system through politics
    • Find a zone that fits your needs (regardless of what the property is) and get the property spot-rezoned, since the assumption is that everything is ripe for rezoning
    • Go for a discretionary approval, under which just about anything is negotiable
  • The fundamental structure of zoning is unable to cope with modern concerns. Attempts to update zoning have up-ended the zoning system and made it overly complex. This complexity makes zoning inherently arbitrary and capricious, raising due process concerns.

5. The future: a form-based code

  • “What can you recommend, when the very theory behind such a zoning resolution—not merely its detail—needs drastic overhaul and rethinking?”[21]
  • “It became evident that this regulatory framework was really what was driving suburbia, sprawl, and the things that were bring criticized as being inefficient and unsustainable.” – Elizabeth Plater-Zyberk[22]
  • The city needs an entirely new framework for guiding sustainable neighborhood change
  • A new framework for zoning should not be proscriptive (thou shalt not) but instead prescriptive (thou shall), and reward performance (outcomes) rather than merely measuring inputs
  • As Jane Jacobs pointed out, the typical zoning ordinance focuses on use when the scale that use operates on is typically a greater determinant of its impact on the neighbors, and court cases have found that small industrial uses are largely compatible even in residential areas[23]
  • The basis of our zoning should be one that fosters mixed communities, rather than having segregation (by use and bulk) as its core principle
  • A form-based code (FBC) seeks to use buildings to shape public spaces, not to have buildings that merely enclose private spaces[24]
    • Such a code regulates the form (shape) of buildings, thus granting great certainty to neighborhoods about what kind of buildings will be built—particularly compared with the insufficient bulk restriction that FAR provides
    • An FBC also addresses in detail how buildings interact with streets and other public spaces, the basics in how buildings are “good neighbors”
    • An FBC is perhaps the tool best able to implement the urban design goals of New Urbanist plans; hence even cities with relatively modern codes have adopted FBCs in order to realize specific development plans
      • Milwaukee commissioned a specific FBC to realize Beerline B, a particularly innovative and excellent infill development
    • An FBC still contains use restrictions, but use controls are secondary to building form controls
    • Unlike a PUD or other such discretionary approval, a FBC can apply design controls equally to multiple landowners across a broad area. This allows for high-quality design, executed by many stakeholders (instead of a stultifying large project), and the evolution over time of an urban area in accordance with a plan[25]

[1] For example, New York City’s current code dates to 1961; several other cities with codes of similar age (Baltimore, Chicago, Philadelphia) have only recently rewritten their codes.

[2] Village of Euclid, Ohio vs. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)

[3] Hadachek vs. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915)

[4] In the Washington, D.C. region, the primary air pollutant is ozone, of which a plurality (40%) comes from autos. “Ozone Pollution,” Clean Air Partners, accessed 5 October 2011,

[5] In particular, state environmental protection agency

[6] “Stage 4 Aircraft Noise Standards,” Federal Aviation Administration, 14 CFR Part 36

[7] Dan Mihalopoulos and Michael Lipkin, “In Tough Times, Fire Department Untouched,” Chicago News Cooperative 13 May 2011

[8] “Country Comparison: Life Expectancy at Birth,” CIA World Factbook, accessed 6 October 2011,

[9] City of Ladue vs. Horn, 720 S.W.2d 745 (Mo.App. E.D.1986)

[10] McMinn vs. Town of Oyster Bay, 498 N.Y.S.2d 128, 488 N.E.2d 1240 (N.Y. 1985)

[11] Jonathan Barnett in Congress for the New Urbanism, Codifying New Urbanism, Planning Advisory Service 526 (Chicago: American Planning Association, 2004), p. 5

[12] Total “shelter” costs rose from 23.3% of consumer expenditure in 1918 to 32.8% in 2002, a 41% increase. Bureau of Labor Statistics, “100 Years of U.S. Consumer Spending” (BLS Report 991), pg. 10, 58.

[13] Joel Rast, Remaking Chicago (DeKalb, Ill.: Northern Illinois U.P., 2002)

[14] Jonathan Levine, Zoned Out (New York: RFF, 2005), pg. X.

[15] Euclid

[16] Ellen Greenberg in Congress for the New Urbanism, Codifying New Urbanism, Planning Advisory Service 526 (Chicago: American Planning Association, 2004), p. 39

[17] Jonathan Barnett in Congress for the New Urbanism, Codifying New Urbanism, Planning Advisory Service 526 (Chicago: American Planning Association, 2004), p. 3.

[18] David Rouse and Nancy Zobl, “Practice Form-Based Zoning,” Zoning Practice, May 2004, p. 1.

[19] John Punter, The Vancouver Achievement (Vancouver: UBC Press, 2003), p. 118.

[20] Norman Marcus, “A Brief History of the Zoning Resolution,” in Marcus, ed., Zoning for the New Century (New York: Real Estate Board of New York, 2000), p. 15.

[21] Jane Jacobs, The Death and Life of Great American Cities (New York: Random House, 1961), p. 235

[22] Nate Berg, “Brave New Codes,” Architect July 2010, p. X.

[23] Goldman vs. Crowther, 147 Md. 282, 128 A. 50 (Md.1925)

[24] Robert Steuteville, Philip Langdon, et al, New Urbanism Best Practices Guide (Ithaca: New Urban News Publications, 2009), p. 188

[25] Steuteville et al, 186-187

Testimony on Clean Energy DC Act

My name is Payton Chung, I live in Southwest Waterfront in Ward 6, and I am testifying with regard to the Clean Energy DC Omnibus Amendment Act of 2018. I am also a board member of the District of Columbia chapter of the Sierra Club, which has heartily applauded this bill, and an editor for Greater Greater Washington.

I’m a homeowner in a vulnerable location, just a few meters above the rising tides in the Anacostia and Potomac rivers. Some of my neighbors live in houses that are over 200 years old, which have made it this far, but whose survival in coming decades depends upon the passage of this bill and others like it.

The past few years of weird weather have given us a small taste of what a destabilized climate means for DC. So-called “business as usual” carbon emissions are a misnomer, as they will ensure that business will soon become very un-usual. Instead, businesses need the certainty of knowing that emissions will decline, and therefore that their business can indeed proceed as usual.

Passage of this bill will also cement DC’s position as a leader in green business development. We are the nation’s undisputed champion in the green and energy-efficient building sector, with more buildings certified under the Leadership in Energy and Environmental Design (LEED) or Energy Star rating systems per capita than any other U.S. city. Green building professionals like myself (a LEED accredited professional in neighborhood development) have risen to the challenge set by DC’s high standards for building energy efficiency, and are capable of helping DC achieve the even more rigorous standards included in this bill. By expanding the SETF and Green Bank, this bill also ensures that all Washingtonians can implement these advanced technologies.

Passage of this bill will also boost expand DC’s already substantial “green dividend” – the economic gains we see from the fact that DC residents spend relatively little on fossil fuel imports, and therefore spend more with DC businesses. Since DC does not produce oil or gas, every dollar spent on these fuels vanishes from our local economy in a puff of smoke. Increasing energy efficiency for our buildings and transportation network directly lowers operating costs, saving businesses and residents money and keeping dollars within DC.

Thank you for the opportunity to testify in favor of the Clean Energy DC Omnibus Amendment Act.