Zoning Practice — November 2012

Ask the Author

Here are reader questions answered by Norman Wright, AICP, author of the November 2012 Zoning Practice article "Beyond the Density Standard."

Question from Mike Smith, Ellensburg, Washington:

We are working on transforming a very outdated (1970s) development code into a hybrid zoning and form based code.

On the form based side we are running into legal concerns by our land use attorney and by a second independent land use attorney sought for a second opinion. The concerns relate to the lack of specificity in our design requirements. They seem very similar to the standards in your new code. The concern boils down to the applicant not being able to know with certainty what the design is that the City is seeking and the final decision being left up to the Administrator or a Commission or even City Council. The argument is that very specific design standards that are easily understood are the legal requirement to withstand a challenge.

Did you run into similar legal concerns with your design based code? If so, how did you address them?

Answer from author Norman Wright:

First of all, it's great to see you and your city taking a new direction with your development code. I hope the effort has been as exciting for you as it has been for us in Columbia. I have no doubt that you will be making your city better.

To your question, I think your attorneys are correct. You need clearly stated requirements. You mentioned my own code in Columbia, Tennessee. It's located at the following link: www.columbiatn.com/PDFs/FinalZoningOrdinance2.0.pdf.

When you review our standards for each zoning district (look at pages 70 and 71 for the "Suburban zone"), you'll see that we define the character of the zone in general, qualitative terms. This is the stuff that your attorneys are uncomfortable with, I'm sure. But on our next two pages (pages 72 and 73) we supplement the qualitative language with clear, numerical form-based standards.

So my advice? Have both. Your code needs the narrative (i.e., the description) of your district that describes its character and function. Your attorneys might refer to this as an "intent" section. This narrative should then be followed up with a set of clear, measureable form-based standards set in numerical values (e.g., the distance between buildings and the street, the height of the buildings, the lot coverage, the type of building frontage, etc.).

This is vitally important for a number of reasons. But to your attorneys' concern, having such clear standards will indeed give citizens and investors a clear picture of what is required. Meaning that if they submit a project that fulfills these clear, numerical standards, they will be approved by right.

When married with the narrative, you'll not only have the clear set of rules but also a means to explain the reasoning for them. It's all about having the "intent" and the "rule" tied together.

So add some numerical form-based standards that coincide with your more "qualitative" design requirements, and not only will your attorneys will feel better, you'll have a better code. Hope that helps.