Form-based design: Town vision without legal conflict

836
To achieve the same goal - affordable multi-family dwellings near a transportation corridor - use (top illustration) vs form-based (bottom illustration) zoning can be used - with very different results. Photo by Steve Price, Urban Advantage, from planners web.com

Unfortunately for many rural towns in Maryland, town administrators and lawyers are time-trapped in a 1960’s outdated zoning bubble that continues to do serious damage to historic communities. Much of this administrative dysfunction in towns and cities is tied to planning and zoning practices that are forty years out of date and that create more systemic problems than they solve.

In fact, conventional zoning has become so arcane, cluttered with terminology that most cannot understand, that it is impossible to follow the torturous process to track a zoning application all the way through to approval. It is, simply put, too costly to litigate and virtually impossible to influence. The path a potential project takes from preliminary inception to actual completion may take five years’ time, and usually the changes made in the beginning when townspeople are not looking are the most deadly. Most people who may contest an application give up after a year. 

That’s exactly why developers don’t want it changed, and why it needs to be changed: the fox is in the hen house. The town, though well-intentioned, is bound to protect the developer’s rights as it would any individual land owner. The town zoning ordinances operating under public review process shield developers from a transparent vetting process: the town assumes the responsibility for vetting and citizens are able to weigh in on the adverse effects and benefits of a development only at the beginning of the application.  There is little that a concerned individual can do without truckloads of money to exert legal pressure on the project.

But there is a way to change the game that would benefit the townspeople and the developers. An idea that was developed forty years ago has taken hold in many towns and counties in the country, virtually unheralded by townspeople, but the State of Maryland has not been supportive of it. It is time for people to put pressure on the State to do something about the poor quality of development in Maryland. 

I hope that this article can at least scratch the surface and explain how “form based “ zoning offers really promising options to containing sprawl and modulating rampant development. 

A form-based code is defined as “a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code. A form-based code is a complete four-tiered regulation, not a mere guideline, adopted by city, town, or county law.”

Typically these are the four tiers:  

  1. A regulating plan (almost a working town master plan – as illustrated in the first picture below), 
  2. Building placement standards (the two-dimensional block lay-out, as in the second picture below)  
  3. Streetscape standards (landscape details, lighting, paving and street width requirements, as in the third picture) and 
  4. Architectural design standards (specific required building materials and details, shown in the third picture).
A form-based planning model. Photo from City of Denton,Maryland

Together these four parts create a proactive minimum standard three-dimensional model. These standards can be used for infill of vacant land or development extension of towns compatible with the existing historic town character.

The four parts may be used all together or independently to improve existing zoning ordinances. A regulating plan gets close to approximating a city master plan, closer than a zoning map does at least. Building placement standards avoid the pitfalls of many outdated ordinances and allow buildings to be placed at the edges of streets, and commercial buildings brought to the street edge with parking placed behind buildings (a minimal improvement). Streetscape standards improve landscape and paving regulations, and finally, architectural design standards for all portions of a city (not just an historic district) improve the appearance of new buildings, guarantee the look of all new structures and guard against absurd architectural ego trips or just more inept design. Together all four standards guarantee a better integrated design approach to town building. And as another big plus, form-based code helps keep townspeople out of the courtrooms, saving incredible amounts of angst money, much to the lawyers’ chagrin. 

Failure to implement these form-based planning ordinances only creates more and more commotion in towns, and undercuts the quality of the built townscape. Though form-based zoning has been around for forty years, it is not the basis of current zoning regs, so towns let a developer create its own interpretation of a two-dimensional model. Often, citizens who fear for town character sound the battle cry at public meetings create an uproar, dig deep into their personal pockets, spend enormous resources, and incur legal fees to bring a new development up to base standard. This is not a good approach and creates disharmony and resentment in communities.

Typically developers, adept at “working” towns, first approach design with their worst versions of development. As the rancor builds and complaints are aired in public meetings, they yield small concessions, making it appear that they have worked with the town to make their development compatible. In truth, developers know exactly how much they can push towns. They make concessions only after the public has yielded big-ticket items. Developers know exactly how to get what they want, and it’s all orchestrated up front.

They know the townspeople begin at a serious disadvantage and unless the townspeople are backed by very deep pockets to pay lawyers to stall out development, developers usually get their way. Developers are keenly aware who will rise to battle them and how well-moneyed their opposition will be. It’s a game of money and legal maneuvering, and most local lawyers are all too happy to help. Even though one side always loses, the lawyers always win big fees. Somehow the embattled citizens who have paid dearly never fault the town for leaving the zoning code so wide open to this kind of predatory behavior. 

Recently the town of St. Michaels was nearly bankrupted by a zoning property rights error where a developer claimed his zoning density right to develop, and tried to double the size of the historic town. The town and its people fought the developer but ultimately it was a wealthy private citizen who saved the day (and the town’s bacon) by buying out the developer. Confrontations like this happen again and again, because people get tired of resisting. Developers know this and keep charging ahead. With each battle the town character takes a ding, and each time townspeople become less likely to defend.

In this way, a town that does not use form-based zoning is left wide open to continual developer assault. Most people don’t know much about other zoning approaches, so no one demands these higher standards. Development is just viewed as a combative process that citizens usually lose by legal confrontation.

Most small to mid-sized town planners won’t come forward with these new zoning models for several reasons. First, it’s an unpredictable rezoning process, takes a lot of time, resources and energy. Typically, change is unpopular, and if the process goes awry, planners could lose their jobs. Second, planners don’t know how to sell new ordinances to a skeptical public.  Third, the zoning administrators are not up to re-educating zoning commissioners to administer new ordinances. And fourth, planners and surveyors are against this more user-friendly approach as because it reduces their professional fees. So there is no impetus for a city planner or zoning administrator to attempt this big change unless there’s already a big popular outcry for it.

Anyone interested in helping defend their towns against the ceaseless assault by developers should write to the state of Maryland and encourage their State Town Manager Circuit Rider planners to help their city or town develop form based codes. Circuit Riders are professional administrators who “Ride Circuit” by serving on a part-time basis several towns in the same area and providing expertise in public administration, financial management, planning and community development. The contact for Anne Arundel County is Karen Mierow (karen.mierow@maryland.gov).

Below is an illustration of how a new in-town mixed use building would look which followed steps preordained through form-based zoning to complete the application process. A description of building style, massing diagrams, floor to floor heights, window and door details, trim and cornice return details, and much more are required for application. Duplication of houses is discouraged.

Illustrative example of buildings in a general sub-district, approved from form-based zoning.

 Form-based code is a better guide to manage growth and development of inner and outer core town development. Citizens and the city residents deserve a city government that will protect its vital interests, not just the tax base. Citizens expect the town to defend its character in the same way it defends its tax base. The citizens have a right to be certain that their rights for preservation of property character is defended by their own city officials.

Jay Corvan is a Talbot County architect who specializes in historic work and commercial work, imaginative infill buildings that play on local architectural patterns. For more information about Cambridge’s use of form-based zoning please go here. 

Help the Arundel Patriot continue to bring you excellent journalism.