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The zoning code that the city currently labors under suffers from an outdated, inflexible structure that fundamentally cannot address or implement the lofty goals embodied in the city’s ambitious new Comprehensive Plan.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, http://cleanairpartners.net/ozoneinfo.cfm

[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, http://cia.gov/library/publications/the-world-factbook/rankorder/2102rank.html

[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