Understanding Design Controls in Local Land Development Codes

Session ID: FR84 Friday, May 16, 2008, 6:00 p.m. - 7:00 p.m. This presentation is protected by US and International Copyright laws. Reproduction, distribution, display and use of the presentation without written permission of the speaker is prohibited. Acknowledgements/Credits

AIA Connecticut This program is registered with the AIA/CES for continuing professional education. As such, it does not include content that may be deemed or construed to constitute approval, sponsorship or endorsement by the AIA of any method, product, service, enterprise or organization. The statements expressed by speakers, panelists, and other participants reflect their own views and do not necessarily reflect the views or positions of The American Institute of Architects or of AIA components, or those of their respective officers, directors, members, employees, or other organizations, groups or individuals associated with them. Questions related to specific products and services may be addressed at the conclusion of this presentation. Learning Objectives

Participants will be able to:

• Identify local land development regulations that control urban and building design;

• Demonstrate to their clients how these regulations affect project presumptions; and

• Describe to local officials how architects can bring value to the creation of these types of regulations during the public adoption process What is “Land Use Law?”

• 90% of Politics is Local; • 90% of Local Politics involves Land Use Decision-Making Planning v. Implementation

• Comprehensive Plan • Policy (Except States Like FL and CA) •Visioning • Charrettes • Regulations • Law • Different than Private Covenant • Different than “Guidelines” Consistency

• Regulation shall be made “In accordance with a comprehensive plan” • Fit between Comprehensive Plan (By Whatever Name) and Land Use Regulations Where Does Land Use Law Come From?

• Constitution(s) • Statutes • Regulations • Judicial Decisions The Police Power

• The Fundamental Power, Inherent in the State, to Regulate to Protect the Public Health, Safety and Welfare

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.

-- Berman v. Parker, 348 U.S. 26 (1954) Derivation of Power

• Constitution • Charter/Home Rule • Enabling Legislation Constitution

• Very Rare Direct Delegation • Generally, Constitution Vests Zoning Power in State Legislature, Which, in Turn, Delegates to Locality Via Enabling Acts Charter/Home Rule

• Contained in Constitution or Statute • Charter Becomes “Organic Law” of Municipality • Allows Localities to: • Exercise All Powers of Self-Government to Promote Public Health and Welfare • Adopt and Enforce Regulations Which Do Not Conflict With “General Laws” Charter/Home Rule (Cont’d)

• Zoning Enabling Act Will Govern Where: • Charter Has Not Been Adopted by Municipality • Charter Does Not Authorize Zoning; or • Conflict Enabling Legislation

• All 50 States • Describes Limits of Power to Regulate • Modeled on Standard State Zoning Enabling Act • Note: Overarching Constitutional Doctrines Local Land Use Regulation

•Zoning • Subdivision • Historic Districts •Smart Growth • Design Regulations/Guidelines • Form-Based Codes Zoning

• Text and Map • Types • “Euclidean”/Cumulative • Performance/Flexible Zoning (Cont’d)

• Techniques • Mapped •Overlay • Floating (Emerging in Mixed Use Context) • Planned Unit Development • Variations on a Theme • Contract Zoning • Spot Zoning Subdivision

• Process, Not a Product • Two Main Purposes • Infrastructure Provision • Land Ownership Recordation Historic Districts

• Usually Enabled Separately and Specifically • Sometimes Requires Votes of Property Owners • Average Reciprocity of Advantage Smart Growth/Growth Management

• Location, Density and Rate of Growth • Urban Growth Boundaries • Growth Phasing, Rate of Growth Systems and Moratoria • Public Facilities and Infrastructure • Adequate Public Facilities and Concurrency • Impact Fees • Special Assessment Districts Smart Growth/Growth Management (Cont’d)

• Protection of Natural Resources and Environment • Open Space Preservation Techniques • Transferable Development Rights • Farmland Protection Techniques • Cluster Zoning and Planned Unit Development Smart Growth/Growth Management (Cont’d)

• Affordable Housing • Inclusionary Zoning • Housing Linkage

• Preservation of Community Character • Neighborhood Conservation Districts • Scenic Districts and Conservation Easements • Tree Preservation • Development Design Review Development Design Review

Design Guidelines can prove to be a legal minefield. Guidelines are a combination of law and design administered by committee and applied to a property owner seeking development approval. The number of imaginable problems with this scenario is immeasurable.

Garvin & LeRoy, “Design Guidelines: The Law of Aesthetic Controls,” Land Use Law & Zoning Digest, April 2003 at 6. Design Regulations/Guidelines

• Sometimes Regulates, Sometimes Guides • The Pirates’ Code • Police Power Implications • Aesthetics Alone (Post Berman, Majority View) • Aesthetics Plus (Minority View) • “Look Alike” v. “Anti-Look Alike” Design Regulations/Guidelines (Cont’d)

• Vagueness Matters • Problems with Precision • “Buildings and structures shall be made compatible with adjacent buildings of conflicting architectural styles by such means as screens and site breaks, or other suitable methods and materials” • “Harmony in texture, lines, and masses shall be encouraged” • Anderson v. Issaquah, 851 P.2d 744 (Wash. App. 1993) Form-Based Codes

• According to the Form-Based Codes Institute:

A method of regulating development to achieve a specific urban form. Form-based codes create a predictable public realm by controlling physical form primarily, with a lesser focus on land use, through city or county regulations.

www.formbasedcodes.org Conventional v. Form-Based Approach From Parolek, et al., Form Based Codes (Wiley 2007)

• Use Segregation, Auto • Mixed-use, Walkable, Orientation Compact • Organized by Use • Organized by Spatial • Use is Primary Hierarchy • Reactive to Individual • Physical Form is Primary Development Proposals • Proactive Community • Generally Proscriptive Visioning • Creates Buildings • Generally Prescriptive • Creates Places Implementation Techniques

• Most Common • Special Districts • Permissive (“Parallel” v. Floating) • Mandatory (Mapped) • Others • Strategic “Intervention” • Wholesale Rewrite of Regulations Examples of FBCs

•Parolek, et al. Form Based Codes (Wiley 2008) •Driehaus Form-Based Codes Awards • www.formbasedcodes.org/awards_2008 • www.formbasedcodes.org/awards_2007 •FBCI 101, 201 & 301 Courses •SmartCode Workshops Components of a Form-Based Code

• Regulating Plan • “Urban”/ Building Form Standards • Public Space Standards • Administration • Definitions Context-Specific Components

• Block Standards • Building Type Standards • Landscape Standards • Architectural Standards • Not Exclusive to FBCs • Signs • Sustainability

Seaside Regulating Plan The SmartCode • Transect as Organizing Mechanism • Version 9.2 available from www.smartcodecentral.com Includes “Sustainability” Module • Works in Progress available from www.smartcodecomplete.com/learn/links © Duany Plater-Zyberk LLC. Company, & Regular Plan / Conceptual Plan Land Use Plan

Regulating Plan Transect-Based Regulating Plans Montgomery, AL Building Type-Based Regulating Plans Blue Spring, MO Street Type-Based Regulating Plans Hercules, CA Frontage-Based Regulating Plans Peoria, IL Frontage-Based Regulating Plans Peoria, IL Urban Standards

•Height • Siting •Elements •Uses Public Space Standards • Parks & Squares • Streets • Sidewalks •Parking • Landscaping Architectural Standards • Exterior Building Walls • Roofs & Parapets • Street Walls • Garden Walls • Windows and Doors • Signage • Lighting and Mechanical Equipment Live in the Post-Kelo World

• Kelo v. City of New London, Conn., 125 S. Ct. 2655 (2005). • National Dialogue on Land Use Issues • Increased Public Scrutiny of Government Actions Evaluation

Robert J. Sitkowski Contact Information

Robert J. Sitkowski, Esq., AIA, AICP Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103 (860) 275-8347 [email protected]