Form-based zoning codes are a new visionary approach to comprehensive land use regulation that are transforming the built environment. Discussing form-based codes requires delving into both law and city planning, fields that go hand in hand. This paper analyzes that relationship to investigate the legal issues implicated in using form-based codes. Specifically, this paper has the goal of answering the following questions: Are form-based codes within the legal authority of most U.S. jurisdictions? If so, how may they operate in light of the multitude of legal issues surrounding land use and property? And most importantly, do form-based codes’ fixation on design and form pose legal difficulties not faced by conventional zoning that overrule the normative benefits of form-based codes? At their core, these inquiries come down to the question of where we have drawn the line between the government police power mandates of land use regulation and private property rights.
Conventional zoning, or Euclidean zoning, focuses on a separation of land uses. Euclidean zoning is the hallmark of car-driven suburbanization. Car-driven suburbanization, in turn, has formed the basis for American urban development for roughly the past seventy years. Over time, conventional zoning has led to a host of problems, from excessive land consumption, to over-reliance on the car, to health concerns related to reduced physical activity, to the loss of the “sense of place” of built environments.
A new type of zoning elevating form over use, form-based codes (“FBCs”) are actually a tool for codifying what is known as “neotraditional” urban development. Neotraditional urban development brings back the compact, pedestrian-oriented, place-centric form of traditional American neighborhoods and downtowns. This often includes mixed-use central commercial districts and traditional neighborhoods featuring a gridded street pattern and homes with front porches.2 This traditional urban form was largely abandoned due to post-World War II suburbia, the onset of the car, and Euclidean zoning. The conventional zoning scheme has rendered it virtually impossible to build new developments akin to the great vacation-destination urban districts such as Charleston, South Carolina, and even the traditional Main Street.3 By shifting the focus from use to form, FBCs are bringing back these traditional development patterns.4
Neotraditional development in the form of FBCs is becoming increasingly popular. In the future it is likely more and more cities will abandon traditional Euclidean zoning in favor of FBCs, or at least incorporate FBCs as part of a hybrid zoning code. Subsequently, the question arises over the legal implications of FBCs, including how FBCs may successfully operate in light of the multitude of legal issues over regulation of private property as well as the legal hurdles to actually enacting the codes in the first place. It is critical to determine how this method of zoning operates with private property rights and other legal concerns arising from constitutional, statutory, and common law. Today the topic of the legal implications of neotraditional urban development through FBCs has not been explored in depth. As Mark White and Dawn Jourdan note in Land Use Law and Zoning Digest:
While much has been written about what neotraditional development should look like, little has been written about how neotraditional development can be implemented in a sound, legal manner. Moreover, little has been written about the constitutional issues that are raised by attempts to mandate neotraditional development patterns or to create incentives for developers to utilize neotraditional design.5
On its face, the implementation of FBCs provides urban planners with a set of tools that are very different from those available with traditional Euclidean zoning. This paper does not investigate the merits of using FBCs to create good urban places. Instead, this paper sheds light on the legal side of FBCs.