A. Land Use Law Generally
Under our federal system in the United States, the state governments have broad powers. While the federal government is one of limited powers, the states’ powers derive from the inherent attributes of sovereignty, limited only by the states’ own constitutions or by the preemptive effect of federal constitutional law. States are often the primary players in the American system of government. But contained within the states are many political subdivisions in the form of local governments, which are often the key regulators of land uses within their jurisdictions. Any power held by these local governments must, however, be granted from the states. in addition to unincorporated public entities such as counties and townships, local governments include a multitude of “municipal corporations” in the form of municipalities (incorporated cities) and special districts formed for limited municipal purposes, such as school districts.39 As the states have plenary power, municipal governments are simply “creatures of the state,” legally-speaking.40
Under the American system, most land use law administration occurs at the local level via authority delegated by the state. The most common grant of power to municipalities from states is through a state legislative zoning “enabling act.” The powers granted by a state legislative enabling act are often very broad, and derive from the state’s “police power” — the authority to regulate municipal affairs in the interest of the general health, safety, and welfare of the population. One of these “police powers” is zoning.
Zoning is the government regulation of land uses via the municipal police power. As discussed, this power is originally held by the states and must be granted to local governments, usually via zoning enabling acts. Local governments then have authority to impose zoning regulations on private properties.
American zoning has its roots in nuisance law. In 1824, the United States Supreme Court in Gibbons v. Ogden recognized the states’ (and subsequently local governments’) power to protect the general welfare, safety, morals, and health of its citizens, which became known as the “police power.”41 Initial land use regulation in the early twentieth century under the police power was intended to prevent or minimize damage from noxious land uses and uncontrolled development.42 Intent on separating “incompatible uses,” cities initially began isolating single-family homes from other development. Eventually this evolved into a complete segregation of land uses, with residential in one area, commercial in another, and industrial in another.43
But before 1916, American communities’ land use regulations did not comprehensively regulate land use in a particular jurisdiction.44 That year the country’s first comprehensive zoning law was adopted when New York City enacted a zoning ordinance that categorized land uses, created districts/ zones appropriate to those categorized uses, and placed the zones on a map of the city.45 The ordinance was largely aimed at regulating building heights (a growing concern during the proliferation of skyscrapers and the resulting “canyon effect”), and separating incompatible uses (namely factories from residential neighborhoods). New York City’s zoning concept would become a model for cities throughout the country, triggering an American zoning boom.
In 1924, the United States Department of Commerce developed a new model law based on the 1916 New York City zoning ordinance, called the Standard State Zoning Enabling Act (“SSZEA”), which would serve as a framework for states adopting zoning laws based on a single-use regulatory system.46 The SSZEA was aimed at tackling the issues of incompatible uses, congestion, and the health and safety of the urban population, all while avoiding court challenges to doing so. The SSZEA established a two-step process for municipalities to implement use-based zoning: (1) permitting the city’s legislative body to regulate “the location and use of buildings, structures, and land for trade, industry, residence, and other purposes,” and (2) authorizing the local jurisdiction to divide the municipality into “districts” corresponding to the types of regulated land uses.47 The SSZEA also required that regulations be uniform for those districts.48 The SSZEA soon spread like wildfire, and before long almost every state employed some derivative of the SSZEA, enabling communities to zone. One of the main reasons for its popularity was its applicability to the concerns of the era — namely health issues regarding incompatible uses. According to Faulkner University law professor Chad D. Emerson:
The reason for the SZEA’s popularity was simple: separated, single use zoning appeared to be an effective tool against the pollution, fire, and disease problems faced by some of the larger urban areas of the time because it isolated residential uses from the more polluting and fire-prone industrial uses. The strict separation of uses by single use zoning was, therefore, a logical response to certain problems of that time.49
In 1926, the Supreme Court affixed its stamp of approval on conventional zoning power in the landmark zoning case Village of Euclid v. Ambler Realty.50 In Euclid, the Supreme Court upheld zoning — the comprehensive division of a city into different use zones — as a constitutional exercise of the police power. Since Euclid we have consistently applied conventional segregated-use zoning, and while there are other types of zoning, this type has largely been the standard for the past century.
Euclidean zoning’s fixation on separating “incompatible uses” has largely resulted in widespread land use segregation, and this has been exacerbated by our auto-centric framework of urban development. This system employs three classifications of streets (arterial, collector, and local), and a hierarchy of uses which includes detached, single-family residences at the top level, as it is the most restricted use and has been regarded as having the highest societal value.
Land use segregation through Euclidean zoning has contributed to many issues, such as sprawl in allowing for unsustainable development and overreliance on the car, and even health concerns such as obesity. Further, it has often destroyed the “sense of place” within an urban area. It is clear that land use segregation has resulted in many adverse effects, but perhaps the worst is that conventional zoning effectively makes it illegal to build towns using traditional planning techniques — preventing the construction of modern-day “Charlestons” and even the quintessential American main street. in general, conventional zoning does the following: (1) separates uses in which citizens engage on a daily basis, (2) promotes low-density development, (3) encourages excessive land consumption and car dependency, (4) puts the focus on what uses are not allowed, (5) uses regulations that do not invoke design concerns, (6) does not extend regulation to the design or character of the streets, and (7) employs a “one-size-fits-all” approach.51
By contrast, FBCs are “proactive.” in placing the focus on what the community wants, FBCs (1) result from a public design process, (2) encourage a mix of land uses and housing types, (3) tailor requirements to specific places and neighborhoods, (4) emphasize site design and building form, and (5) address the design of the public realm and consider the importance of streetscape design and individual building character in defining “sense of place.”52 In addition, the code is shorter and more concise and generally emphasizes illustrations over text.53
Over time, the unsustainable growth pattern of Euclidean zoning drew its critics, and efforts developed to legally enable traditional planning principles. One such measure was the Planned Unit Development (“PUD”) ordinance, originally developed as a response to the otherwise rigid division of uses associated with Euclidean zoning.54 PUDs are an alternative to segregated zoning, allowing for development that does not fit into the requirements of the standard zoning districts.55 A PUD allows for an extended range of flexibility because it regulates the land as one unit and often allows for mixed uses. In addition, PUDS have a more lenient development approval process and can be implemented in several different formats, such as an overlay zone, floating zone, separate zoning district, or even as part of a subdivision ordinance.56 However, that PUDs are subject to case-by-case negotiation means that they are prone to lacking uniformity, which can cause legal issues in light of the common statutory requirement that zoning be uniformly applied.57 In addition, PUDs are only for selected areas within a community and do not allow for widespread development.
It was not until the 1980s that efforts began at creating a comprehensive zoning ordinance which would allow for traditional town planning. Early forms of FBCs were developed in a handful of New Urbanist town developments in the 1980s, the most famous being the Seaside, Florida, project undertaken by the world renowned New Urbanist town planning and architectural firm Duany Plater-Zyberk. With the rise of New Urbanism, town planners wanted to codify the types of development found in neotraditional communities, and efforts began at creating a model zoning ordinance. These early efforts yielded the Traditional Neighborhood Development Ordinance (“TND Ordinance”). While loosely based on the PUD, the TND Ordinance set standards to be as of right rather than to be negotiated on an ad hoc basis.58 Soon after, a group of New Urbanists led by Andres Duany (co-founder of Duany Plater- Zyberk) began working on a new model code that would incorporate a transect system in enabling traditional town planning techniques by right.59 This would eventually become “SmartCode,” a leading model FBC today.
C. Legal Issues of Land Use Law
Typical legal issues encountered within land use include challenges claiming a “taking” and violations of due process, both of which stem from constitutional law. The Takings Clause of the Fifth Amendment to the Constitution of the United States provides that private property shall not be taken for public use without just compensation. Likewise, the Due Process Clause of the Fifth Amendment prohibits the government from depriving any person “of life, liberty, or property, without due process of law. . . ” The Due Process Clause involves both procedural and substantive requirements and limitations.
The Fifth Amendment originally applied only to the federal government, but it has been incorporated to the states through the Fourteenth Amendment. This means that states must also abide by the requirements of the Fifth Amendment. Through legislative enabling acts, the states in turn have delegated the police power down to local governments, including municipalities. This means that a local municipality must respect the requirements related to takings and due process, which along with most of the Bill of Rights originally applied only to the federal government.
One form of taking is that of eminent domain, whereby a government entity may physically appropriate private property only if for a “public purpose” and if just compensation is paid. The Takings Clause also addresses the lesser known issue of regulatory takings. These takings result not from a physical “wrecking ball” seizure with formal condemnation, but imposition of a government regulation which in effect deprives the owner of a property right. The government regulation is claimed to infringe on the constitutionally protected property rights of the owner. Unlike in eminent domain, in regulatory takings cases the government does not concede that it has “taken” property or that it must compensate the property owner for any loss that the owner might sustain.
Regulatory takings are analyzed by courts under three general approaches: (1) “per se takings” or categorical rules, (2) government exactions, and (3) an ad hoc balancing test. There are two types of per se regulatory takings. First, there are physical regulatory takings, whereby a government regulation causes a landowner to suffer actual physical invasion of the property. The second type of per se taking is the economic regulatory “total” taking, in which the regulation completely deprives a landowner of virtually all economically viable use of the property. in addition, takings may occur upon exactions by a government entity. An exaction is a burden placed on a landowner by a local government to commit land, construction, or payment for the public benefit as a condition on development approval. A common example of this is an easement allowing public access to one’s property as a condition of obtaining a development permit.60 Last, there is the “ad hoc” taking. The ad hoc taking requires a case-by-case analysis set forth by the U.S. Supreme Court in Penn Central Transportation Co. v. New York City.61 The following factors are weighed: (1) the economic impact of the regulation; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the government action. The ad hoc taking standard is much less clear than the other regulatory taking standards and is difficult to apply.
There are also due process issues. Due process encompasses both procedural and substantive forms and is also found under the Fifth and Fourteenth Amendments. With substantive due process, there is some overlap with takings, but a due process claim may exist separate from a takings claim. For an independent due process claim, one is deprived of a property interest from a government regulation in that it does not pursue a legitimate police power objective, or in that there is no rational relation to a legitimate state objective. There is also procedural due process, by which one is deprived of a property right in being denied fairness in the administrative process. Procedural due process is less common in land use law, but may still occur, for example, if a property owner is not given a proper hearing before a zoning change or a zoning code is vague on what is required of a property owner.
Inevitably, the issue of equal protection finds its way into land use law. Like the Due Process Clause, the Equal Protection Clause also guarantees the fairness of laws.62 Both guarantees review the “substance of the law,” substantive due process guaranteeing that laws will be reasonable and not arbitrary, and equal protection guaranteeing that similarly situated persons will be treated alike. Essentially, an equal protection question arises where a law treats a person or class of persons differently from others.63 Equal protection issues may arise in land use law when the government action treats one different from another, usually a “class,” or group, differently from others.
IV. Real-World Examples of Form-Based Codes
A. Form-Based Codes in Kansas
According to Kansas City-area attorney and urban planner Mark White, the State of Kansas is especially conducive for FBCs for two reasons: (1) Kansas’s zoning enabling statute easily allows for FBCs, and (2) Kansas has municipal home rule.64
1. LAWRENCE, KANSAS
Lawrence, Kansas, is a college town of about 100,000 people and home to the University of Kansas. in the interest of fostering neo- traditional development, the city hired a planning firm specializing in FBCs and other types of smart development to create an FBC for the city. The firm held a public weeklong charrette workshop to gain community input before it set to work. From the charrette, the city decided to make the code optional. In 2009, the City Commission adopted the Lawrence SmartCode as an optional development code based on the transect model.
According to Lawrence city planner Sandy Day, due to its optional nature Lawrence’s SmartCode has never actually been realized.65 Every developer simply wants to use conventional zoning and declines to use the SmartCode. Day noted that it would have to take a visionary developer to want to abide by the SmartCode there. it seems that most developers are deterred by the code and do not see the value in it; to them it seems more difficult and perhaps unnecessary.
According to Day, the city would still like to see FBC-style smart development implemented through its conventional zoning.66 Despite the lack of participation in its FBC, Day notes that Lawrence has been able to adopt some elements of the SmartCode into the city’s normal zoning code. The city has responded with the creation of a mixed-use zoning district, which incorporates much of the form-based elements, such as zero-setback and a well-articulated pedestrian frontage. This mixed-use zoning has proven fairly effective for Lawrence. The “MU District” does not include the historic downtown of Lawrence, which is subject to other historic design regulation; instead, it encompasses an area of relatively new development. Even though Lawrence has not implemented its SmartCode, it seems that it has achieved some of the benefits of that approach through conventional zoning and the adoption of a mixed-use zone. Perhaps this reveals the value in the aims of FBCs, and also the value in making a code mandatory.
2. OVERLAND PARK, KANSAS
Overland Park, Kansas, is a fast-growing suburb of Kansas City of almost 200,000 people. In 2011 the city adopted an FBC for its downtown area. For Overland Park, its FBC has succeeded in attracting high-quality development to its downtown; nonetheless, it appears that the practical implementation of the project has not been as seamless as one might hope. The idea of FBCs of course is for a straightforward guide on development, lessening the need for site-by- site administrative review and approval. According to City Planner Danielle Hollrah, the city has still had a significant number of projects for which developers have needed variances.67 Perhaps this provides some insight into the “real world” application of FBCs. While FBCs conceptualize a comprehensive approach, it is important to keep in mind the potential need for variances while drafting the code.
B. Form-Based Codes in Missouri
FBCs are also gradually finding their way into Missouri. Currently a handful exist in the state, ranging from a large urban FBC to a small downtown FBC.
1. ST. LOUIS, MISSOURI (CENTRAL WEST END DISTRICT)
Recognized as one of the American Planning Association’s “Great Neighborhoods in America,”68 the Central West End (“CWE”) is a St. Louis neighborhood in the central corridor of the city bordering Midtown on the east and Forest Park on the west. The CWE encompasses a large urban, pedestrian-friendly mixed-use district, single- and multiple-family residential areas, the expansive BJC Health Care Campus, and the Cortex Innovation District. After developing an interest in FBCs, the City of St. Louis decided to adopt an FBC for a portion of the Central West End District. In 2012, city ordinance created a new zoning overlay district in the Zoning Code, called “Form-Based Districts.” Later that year, the Planning Commission passed an ordinance establishing the Central West End FBC.
According to St. Louis Planning and Urban Design Agency director Don Roe, the desire for St. Louis City to have form-based zoning in its “development toolbox” came from two perspectives: (1) constituents desiring more design and placemaking via zoning, and (2) city staff seeing effective FBCs in other cities.69 Roe notes that via a “neighborhood process” the city spent considerable energy in piloting an area of the Central West End for the city’s first use of an FBC. That process yielded two outcomes: (1) the city enabling legislation establishing a change to the city’s Zoning Code to allow form-based districts within the city as overlay districts,70 and (2) a specific geographic area — a portion of the Central West End becoming the first form-based district. Roe notes that the application of the form-based district is generally triggered by new construction; it is not simply a use application.
According to Roe, the city’s FBC has been successful in molding development into being consistently “urban” and “pedestrian” in focus. The FBC is in fact maturing into a guide for projects to the point that community conversation about a proposed development initially goes to the question: “Does it conform to the FBC?” It appears that St. Louis’ first FBC experiment is overall a success in terms of implementing quality urban development; only time will tell what the future holds for FBCs in St. Louis.
2. BLUE SPRINGS, MISSOURI
Blue Springs, Missouri, is a fast-growing Kansas City suburb of just over 50,000 people. In 2006 the city held a nine-month master planning process that formed the basis of a transect-concept FBC established the following year. According to Blue Springs city planners Mike Peterman and Jim Holley, the city adopted its FBC because the community and the city government wanted to revitalize vacant lots and allow for more building types and better in-fill development with more design control.71 The code is mandatory; developers must go through a standard permit process, and a downtown review board must determine whether the permit meets certain criteria before a project can be undertaken. To Peterman and Holley, the FBC is a more basic type of zoning code.72 Citing the fact that the FBC does not merely design for one specific group of people or use but for the overall context of the community, they believe the FBC allows the community to “look toward the future” in including transportation and transportation station development. To them, the FBC is based on a long-term vision.
As developers in Blue Springs realized they had more control over design and could use more diverse materials, initially the city saw an increase in residential developers, but unfortunately this trend dropped off with the 2008 recession. On FBCs, Peterman and Holley recommend involving the public by holding public charrettes, educating the public as to the “why” of regulation and setting goals. They also note that communities or citizens interested in getting an FBC should first ensure that the “buy-in” is there. Once the economic conditions are ripe, it appears that the long-term vision that is the focus of Blue Springs’ FBC will bear fruit.
3. COLUMBIA, MISSOURI
Home to the University of Missouri, Columbia is a thriving college town of about 120,000 people. Columbia adopted a street-based FBC for its downtown area in March 2017 as part of a new city-wide zoning code, called the Unified Development Code (“UDC”).73 From the initial public charrettes to implementation, the UDC was developed over a roughly ten-year period as part of the Columbia imagined Plan. Columbia’s FBC is an excellent example of taking a practical approach to implementing an FBC and using it to achieve great results. Columbia community development director Tim Teddy notes that for all of the value in FBCs, it is very challenging to implement an FBC for an entire municipality.74 According to Teddy, Columbia’s hybrid approach to the FBC has allowed it to be more successful. This hybrid method applies the FBC to the entire downtown area, but leaves conventional zoning in place for the rest of the community.
Columbia’s practical approach is also evident in the city’s execution of the FBC. Teddy notes that the FBC strikes a good balance in reconciling existing structures with the regulating requirements. The Code has forgiving allowances for nonconforming uses with pre-existing buildings, as none of the property owners has to tear down and start over. For example, the Code does not require pre-existing structures to rebuild closer to the property line despite that being a requirement of new developments. in addition, the Board of Adjustment allows for variances in the form of “design adjustments.” Yet at the same time, the FBC ensures that the district will retain its urban character for the future, highlighting storefront retailing, “street walls” (street enclosure because of zero building setback), and an overall high-quality downtown environment. The Code does not allow for single-family homes downtown and works to attract a wide variety of storefront businesses.
Another reason for the success of Columbia’s FBC appears to be the city’s thoroughness in developing the Code, especially its concern with the legal issues involved. The city hired the leading national land use consulting firm Clarion Associates to develop the Code. This firm includes not only planners but also attorneys skilled in the legal requirements of implementing FBCs and who provided valuable input on the project. in addition, the city had valuable assistance from its in-house legal counsel. The attorneys took every effort to ensure the Code was enforceable and unambiguous; for example, the FBC makes use of extensive text rather than diagrams to remain unambiguous and avoid potential legal challenges.75 Teddy noted as well that the city being under home rule has helped ensure that the city has legal authority to undertake an FBC in the first place.
Columbia’s downtown district is a large area bordering the university campus comprised of mixed-use buildings with first-story offices, retail, and restaurants, and upper-story apartments. Teddy notes how the downtown lent itself well to an FBC, and that the FBC is intended largely to preserve this valuable urban space for the future. it appears that Columbia is well on its way to doing so. The success of Columbia’s FBC appears to be in its practical focus and thoroughness of implementation, especially its consideration of legal issues.
4. DARDENNE PRAIRIE, MISSOURI
Dardenne Prairie, Missouri is a small but growing St. Louis suburb of about 13,000 people on the western edge of the metro area. in an effort to accommodate growth while avoiding the typical sprawl- type piecemeal development of nearby suburban areas, in 2007 the city hired Duany Plater-Zyberk to create a SmartCode FBC and to design for the city a new compact, mixed-use civic core on several in-fill sites.76 The plan included four sectors (all to be connected by paths for pedestrians and bicyclists): a town center, a live/ work area, a technology employment campus, and a mixed-use community center retrofitted from an existing strip shopping mall.77
But ten years down the road, it appears practical implementation has been somewhat difficult. According to city engineer Luke Kehoe, only about half a dozen development projects have gone through since the enactment of the FBC.78 Unfortunately, development in the city took a hit with the recession of 2008 and the resulting real estate downturn. The FBC has also been reduced in its land coverage. While the FBC originally covered about 300 acres, now perhaps about a third of that area has been rezoned by the city council.
Despite these setbacks, Kehoe does cite the ease of enforcement and administrative review in using the FBC.79 The city’s FBC employs an architectural review board instead of a building inspector, using standards that were set up during the public meeting process and subsequent committee meetings. Now it seems the issue is getting developers to locate there. Kehoe believes there are two key hurdles to attracting developers to the FBC: (1) not many developers in the area work with mixed-use type developments, and (2) developers must be interested in the New Urbanist/neotraditional-type development in order to develop within FBCs. To Kehoe, it would be ideal to attract destination-type developers who work in higher income areas.
Dardenne Prairie’s FBC has potential; it is largely just a matter of getting the developers to come there. in any event, legally speaking, the town has had little issues with enactment and enforcement of the FBC; instead, the struggles appear to be economic or cultural in nature.
V. Legal Authority for Form-Based Codes
Inevitably the question arises whether FBCs are legally authorized. This question leads back to the terms of the state zoning enabling legislation. As is the case for all zoning, FBCs must be authorized by state enabling statutes or the state constitution. Moreover, as with any land use regulation, an FBC must be authorized by state law and consistent with the federal and state constitutions.80 It may come as a surprise to some that in fact FBCs are well within the authority granted to municipal jurisdictions under most state zoning enabling acts.
FBC-proponents argue that the Standard State Zoning Enabling Act (“SSZEA”) includes provisions indicating that form can be regulated.81 In fact, it is believed that if FBCs are adopted in pursuit of the general welfare and to promote health and safety, the use-based approach of Euclidean zoning is not a barrier.82 In reality, the Supreme Court in Euclid did not mandate use separation.83 Euclid simply acknowledged that the zoning under review, which happened to separate uses, was a possible rational means of promoting the public health, safety, and general welfare.84 Further, the Court indicated that common practices of the day had established other equally rational mechanisms for regulating development for the public interest.85 This is good news for FBCs.
According to Mark White, while Missouri still uses its 1920 Zoning Enabling Act, one could clearly make the argument that FBCs are well within the state’s zoning authority. The Missouri ZEA provides, in Section 89.020 of the Missouri Revised Statutes:
For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of all cities, towns, and villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, the preservation of features of historical significance, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.
Missouri does expressly authorize “transect-based zoning” for municipal governments in Section 89.010 of the Missouri Revised Statutes. Missouri defines “transect-based zoning” as
[A] zoning classification system that prescriptively arranges uses, elements, and environments according to a geographic cross-section that range across a continuum from rural to urban, with the range of environments providing the basis for organizing the components of the constructed world, including buildings, lots, land use, street, and all other physical elements of the human habitat, with the objective of creating sustainable communities and emphasizing bicycle lanes, street connectivity, and sidewalks, and permitting high-density and mixed use development in urban areas.”86
Some states circumvent the question of authorization and have simply provided express authorization for FBCs in their legislative enabling acts. California, Wisconsin, and Pennsylvania all have done so.87 The California Government Code provides:
65302.4. Expressions of community intentions regarding urban form and design. The text and diagrams in the land use element that address the location and extent of land uses, and the zoning ordinances that implement these provisions, may also express community intentions regarding urban form and design. These expressions may differentiate neighborhoods, districts, and corridors, provide for a mixture of land uses and housing types within each, and provide specific measures for regulating relationships between buildings, and between buildings and outdoor public areas, including streets.
In states which do not expressly authorize FBCs (such as Missouri), it may at first seem difficult to implement such codes because most state enabling statutes are derived from the Euclidean, use- based SSZEA. However, one could easily make the argument that the SSZEA does in fact support use of FBCs. The “grant of power” provisions in the SSZEA include power to regulate the following: height, number of stories, and size; lot coverage; yards, courts, and other open spaces; density; and location and use of structures and land.88 The SSZEA provides:
SECTION 1. GRANT OF POWER. — For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body . . . [may] regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes. . . .
SEC. 2. DISTRICTS . . . [W]ithin such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land.
In addition, the “purposes in view” provisions of the SSZEA address aims of regulation that could clearly apply to FBCs. Some relevant purposes include that it be in accordance with a comprehensive plan, lessen congestion in the streets, prevent overcrowding of land, avoid undue concentration of population, and facilitate adequate provision of public requirements.89 Another purpose listed in this section of the SSZEA is perhaps most significant: “Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality.”90 Specifically in that it mentions concern over the character of the district and conserving the value of buildings, this provision most certainly indicates that the SSZEA allows for FBCs.
As discussed, the state legislatures have plenary authority over local governments (with a few exceptions), meaning that local governments must in some way receive all powers from the state.91 It was discussed above that state legislatures confer such powers through enabling legislation in the form of specific enactments authorizing specific local action. State legislatures also sometimes grant local governments “home rule” powers in states whose constitutions or statutes contain a home rule provision.92
“Home rule” is a broad delegation of general authority to a local government to exercise control over its local affairs and to be insulated from state legislative influence.93 The concept of home rule arose in the late nineteenth century as an attempt to overcome the limitations of statutory grants of power and to provide for greater local government autonomy.94 Home rule was also aimed at defeating the shortcomings with the older approach to municipal authority, that of “Dillon’s Rule,” which essentially applied strict construction to the statutory powers of local governments, making it highly challenging for local governments to exercise authority for anything that was not expressly granted.
Constitutional home rule takes two forms: (1) “imperio home rule,” which grants a defined scope of power to local governments and usually grants local governments powers over “municipal” affairs, or their “property, affairs, and government”; and (2) “legislative home rule,” in which the state constitution grants local governments all powers the legislature is capable of delegating, but the legislature is authorized to withdraw or limit home rule powers by statute.95 Legislative home rule is the broadest grant of municipal authority and is also known as “total unless limited” home rule because it essentially grants all powers unless expressly limited. In imperio home rule states, the extent of the protection and the delegation itself depends on the language of the constitutional home rule grant, and this often allows state legislatures to preempt home rule municipalities through “general” legislation, unless the home rule power is exclusively of local concern. In legislative home rule states, the delegation of the power is complete, but the legislature retains full plenary power to prohibit its use in any area.
In terms of authority for implementing FBCs, home rule is an excellent tool. For home rule states, it is generally not an issue to implement FBCs if the municipality has been given constitutionally mandated home rule. In contrast, it may be more difficult to implement FBCs for non-charter cities, especially in Dillon’s Rule states. However, non-charter cities may still successfully implement FBCs if legally authorized by the enabling act.
FBCs are in fact well within the authority of most jurisdictions, even those under Euclidean-based SSZEA zoning enabling legislation. While there is often stark contrast between the types of places developed under FBCs versus conventional zoning, there is not such a disparity in terms of legal authorization. In reality, the Supreme Court in Euclid did not mandate use separation, and as has been shown it may well be argued that the SSZEA-derived enabling legislation clearly allows for regulation based on form. Further, it should be noted that FBCs do not entirely get rid of regulation of uses. in fact, to do so would be problematic, as overriding federal statutes such as the Fair Housing Amendments Act, the Telecommunications Act of 1996, and the Religious Land Use and institutionalized Persons Act of 2000 are explicitly use-based.96 While FBCs clearly allow for an entirely different development framework, the legal authority required is not altogether different than that required for conventional zoning.
VI. Legal Limitations on Form-Based Codes
There is surprisingly little case law on the legal issues of FBCs,97 and this lack of guidance from the courts makes it more elusive in studying the legal side of FBCs. However, a number of cases interpret the types of issues which could arise, such as maximum and minimum parking requirements, elimination or curtailment of parking ratios, and the impact of parking with walkability. These cases merit some discussion. According to White and Jourdan, the three cases Restigouche, Dallen, and City Council of City of Salem compose a “legal framework for neotraditional planning.”98 These cases will be discussed below along with others illustrative on the issues faced by FBCs.
A. Constitutional Due Process Issues
1. SUBSTANTIVE DUE PROCESS
Like all land development regulations, FBCs must satisfy the requirements of substantive due process.99 Under due process, courts have accepted neotraditionalist development so long as regulations are reasonable and rational, are properly applied for a legitimate public purpose, and promote the character of the community.100
A key legal hurdle for FBCs is that they often are associated with aesthetic-based zoning. Of the five key components of FBCs, the one most likely to come under a legal challenge is that of “architectural regulations.”101 For this reason, many cities omit this component. Zoning based on aesthetics can be a slippery slope and may lead to all sorts of constitutional concerns and police power issues. The State of Virginia, for example, declares aesthetic-based zoning to be unlawful on its face. In James City-County v. Rowe, the Virginia Supreme Court ruled that aesthetics was not a proper use of the police power.102
However, today most U.S. jurisdictions accept aesthetics considerations, either alone or in conjunction with other legitimate objectives, as a proper goal in the exercise of the state’s police power.103 There are generally two types of aesthetic regulations: (1) “anti-look-alike” regulations that provide a new building may not be too similar to existing area dwellings, and (2) “look alike” regulations, providing that new buildings may not be too dissimilar from existing buildings.104 Both types have been upheld, with many decisions citing the Supreme Court’s decision in Berman v. Parker:105
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.106
Moreover, the Supreme Court’s decision in City of Los Angeles v. Taxpayers for Vincent provides support for the view that aesthetics are a proper focus of governmental regulation.107
But Mark White is quick to point out that FBCs are about more than aesthetics. As he explains, the real reason for FBCs is functionality.108 FBCs are really about making cities more efficient and sustainable, and the aesthetic element is peripheral to functionality. According to White, “in reality, the principles of New Urbanism underlying form based codes are not designed to further a taste preference.” Instead, FBCs are designed to promote walkable communities and to minimize urban sprawl; moreover, there is now a large body of literature documenting the public health benefits of compact development.109 Especially in states where courts take a hard stance for property rights and enabling legislation, it is critical to include in the code findings that discuss the true purpose of FBCs: “long term community health, property values, and neighborhood stability.”110
Restigouche, Inc. v. Town of Juniper, 59 F.3d 1208, 1214 (11th Cir. 1995)
In Restigouche, Inc. v. Town of Juniper, the Eleventh Circuit took a favorable view of regulation based on aesthetics in upholding neotraditional development principles. The court affirmed that the use of neotraditional development principles is a legitimate use of police powers.111 And the court upheld the denial of a special exception for a car sales campus in a traditional corridor:112
The first step in determining whether legislation survives rational-basis scrutiny is identifying a legitimate government purpose — a goal — which the enacting government body could have been pursuing. The Town asserts that the Comprehensive Plan and IOZ Regulations reflect its concern with preserving and establishing an aesthetically-pleasing corridor along Indiantown Road, and its goal of creating an identifiable, traditional downtown. It is well settled that the maintenance of community aesthetics is a legitimate government purpose.113
Ruling that the maintenance of community aesthetics is a legitimate public purpose, the court also noted that such regulations serve to create a traditional downtown:
To further the goal of creating a traditional main street, the Town sought to encourage retail uses along Indiantown Road which would serve the everyday needs of nearby residents, promote pedestrian traffic, and have a character consistent with the neighboring residential developments. The Town could have reasonably believed that the purchase of an automobile is not an everyday need, that the typically large lot of an automobile dealership might break up the pedestrian flow between retail establishments, and that such dealerships might disrupt the planned residential character of the street with bright lights, red flags and flashy signage. Thus, we readily conclude that the prohibition of car dealerships could rationally further the Town’s legitimate aesthetic purposes and its goal of creating a traditional downtown.114
According to the court, encouraging retail uses and prohibiting car dealerships furthers this public purpose because (1) car purchases are not an everyday need, (2) a large auto lot would break up pedestrian flows, and (3) dealerships disrupt the planned residential character of an area.115
City Council of City of Salem v. Wendy’s of Western Virginia, Inc., 471 S.E.2d 469 (Va. 1996)
Here the Virginia Supreme Court upheld the refusal to rezone a residential parcel to authorize construction of a fast-food restaurant.116 The property was located in a residential subdivision east of numerous single-family dwellings and an apartment complex. All the residential dwelling parcels were zoned R-2, but the city’s comprehensive plan provided for the residential to the east to become industrial. The owner provided evidence that the area was unsuitable for residential use, but the city showed that the single-family dwellings to the east made up “a viable residential community.” In addition, the court noted that the city was out of land that could be developed for industrial use and that a fast food restaurant could lead to a domino effect whereby there would be other requests to go commercial, which would interfere with the city’s efforts to piece together industrial properties and develop them as a unit. The court held that “[i]n denying the rezoning request, the City properly endeavored to protect an existing, established, and stable residential neighborhood . . . [and] elected to adhere to the standards of its comprehensive plan, a matter within the council’s discretion.” Id. (citing Board of Supervisors of Loudon County v. Lerner, 267 S.E.2d 100, 104 (Va. 1980)).
Dallen v. City of Kansas City, 822 S.W.2d 429 (Mo. Ct. App. 1991)
Here the Missouri Court of Appeals confronted the issue of the validity of a build-to line.117 One of the only cases in the country having addressed the issue, Dallen arose out of a city’s adoption of enabling ordinances providing for the establishment and termination of Special Review Districts.118 The enabling ordinances prohibited the Special Review Districts from modifying land use regulations for the underlying district. The city established the Main Street Corridor Special Review District pursuant to the enabling ordinance. The standards for the district required that any new structure be built with the façade covering at least 70% of the primary street frontage of any site with 100 feet or more of frontage, provided that in the case of a corner lot with two primary street frontages, the 70% minimum would apply only to the primary street of greater distance and the primary street frontage of lesser distance would require only 25% coverage. in addition, the standards required that buildings be set back no more than 10 feet from the street, but with two exceptions: (1) buildings 100 feet or more in height (which need to be set back no more than 10% of the building height), and (2) buildings used exclusively for residential use. Further, the standards prevented off-street parking between any building and the primary street line.
Plaintiffs owned a gas station and carwash within the district and proposed to rebuild the station in a manner consistent with the underlying zoning but in conflict with the district regulations. The regulations constituted a modification because the underlying zoning allowed for unrestricted use of the property, whereas the district imposed additional requirements on how the property may be used. The court found that requiring the new station to be built behind a ten-foot setback was “so burdensome as to these plaintiffs as to be confiscatory.” The court also found that the mandatory ten-foot setback, building material regulations, parking regulations, and the regulations over signage, windows, and building entrances were confiscatory and unconstitutional. According to the court, “[b]y no stretch of the imagination” could a gas station be built within the ten-foot allowance.
The Dallen decision actually conflicts with the majority rule in most states to provide judicial deference to local land development standards.119 In addition, it seems the court got it wrong even with regard to the feasibility of developing gas stations with a mandatory setback and rear parking. Even though the court in Dallen concluded that the regulation made it impossible to operate a gas station, gas stations have been constructed since Dallen that indeed have rear parking and fuel pump stations.120
While courts in most states would consider the court’s reasoning in Dallen to be an intrusion on legislative judgment, White notes that the decision nonetheless indicates the need for exercising caution in drafting and developing such regulations.121 First, if the standards are mandatory, local governments should consider either exempting uses that cannot conform to them, or simply not allowing those uses in the underlying district. Second, the regulations should be internally consistent and be clear on what is and is not permitted. Third, good legislative findings that demonstrate the value of regulations (including economic viability and marketability) should accompany the regulations. Overall, Dallen stands for the proposition that any mandatory restrictions in a neotraditional zoning ordinance must be rational and reasonable in their application to specific uses.122
City of North Miami v. Newsome, 203 So. 2d 634 (Fla. Ct. App. 1967)
This case is illustrative regarding FBCs because it confronted the issue of minimum building height and density requirements. The City of North Miami had a requirement that all “main” buildings or structures have a minimum floor area of 2,500 square feet and that all facades or false fronts have a height of at least fifteen feet. The requirements were not connected to lot size. The court held that the zoning was invalid as being arbitrary, unreasonable, and having no relation to the public health, safety, or welfare.
This case indicates the importance of backing up height requirements in an FBC.123 White suggests that graphics illustrating the differences between undersized and property-sized buildings in relation to the street can help the reader and even a reviewing court if necessary. In addition, updated state planning legislation can provide further support for these types of controls.124, 125
2. PROCEDURAL DUE PROCESS
FBCs also must protect procedural due process rights. This means FBCs must contain sufficiently detailed and meaningful standards alerting applicants to what is expected of them while still providing for sufficient discretion in the decision-making body.126 If the FBC does not accomplish this, it may be rejected by a court as void for being vague. The key concern here is that of architectural standards,127 which can come at issue with alleged abuse of discretion.
Another procedural due process issue arises if the FBC lacks certainty or definiteness. While neotraditionalists prefer visual aids over textual standards and emphasize flexibility over precision, this can confer wide discretion to those administering the ordinance which then raises concerns over procedural due process.128 It is important to remember that zoning ordinances must provide uniform rules to guide administration. Furthermore, like any ordinance, a zoning ordinance must establish some sort of standard in order to allow for uniform operation.129 Zoning ordinances also must be reasonably definite and certain, allowing for reasonable interpretation.
While most prescriptive regulations will prevail, the issue really arises with the discretionary architectural standards.130 Discretionary judgments on the part of the governing body may present issues with procedural due process. Thus, many local governments have tried to find a middle ground solution between advisory and binding guidelines (discretion or prescription). But land use attorney Robert Sitkowksi notes that while prescriptive architectural standards in an FBC are not without their issues in built areas, such standards may be necessary from a legal standpoint in light of the void for vagueness doctrine.131 Indeed, as Sitkowski notes, “The resistance to prescriptive design standards seems to be less legal than practical and political.”132 Issues arise when such guidelines are vague and there is a delegation of authority to bodies making decisions simply based on the board members’ subjective tastes. However, when the guidelines are merely advisory, there is a tendency to not take them seriously.133 In the interest of procedural due process, local governments should seek a good median between prescription and discretion when implementing an FBC.
J.D. Construction Corp. v. Board of Adjustment of Freehold Twp., 290 A.2d 452 (N.J. 1972)
This case is noteworthy because FBCs typically control the location of parking and may also limit the supply of parking, especially where transit is available. Here the New Jersey Superior Court invalidated a parking ordinance as applied to garden apartments on the grounds that it had no reasonable relationship to zoning purposes134 and that it was vague. The ordinance declared: “in single family residential zones any parking facilities with a capacity of more than four (4) vehicles shall be permitted only in a side or rear yard.”
The court noted that “the only possible purpose for the restriction would be for aesthetic considerations, to conserve the value of property and encourage its most appropriate use.”135 The court stated that while the restriction may bear a reasonable relationship such a purpose as applied to single-family homes in a single-family residential district, it had no relationship as applied to garden apartment complexes, which feature apartment buildings and parking lots arranged at various angles and positions in relation to the property’s public street frontage.136 In addition, the court found that the definition of “front yard” in the ordinance was vague and uncertain as applied, and as the definition of “front yard” in this ordinance does not readily apply, the determination of “front yard” is left largely to the Board.137, 138
But it is important to note that aesthetics is not the most important justification for parking design and supply regulations.139 Local governments back up their parking design and supply regulations with functionality. The “more carefully calibrated” design regulations typically found in FBCs solve this dilemma.140 In addition, consider that municipalities have no constitutional obligation to zone sufficient space for off-street parking and that other restrictions such as parking lot landscaping requirements have been upheld against takings challenges.
Anderson v. Issaquah, 851 P.2d 744 (Wash. Ct. App. 1993)
This case involved the court striking down conventional design controls for being excessively vague; it is illustrative here for showing why FBCs are a better alternative to address physical design controls than the conventional design review board model.141 Here, the plaintiff applied for a land use certification to build a commercial building. The design review board denied plaintiff’s application to develop a Modernist building, citing the design control standards. The court later invalidated the standards for vagueness. The standards specified that “[b]uildings 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,” and that “[h]armony in texture, lines, and masses shall be encouraged.” In addition, the standards indicated the following requirements regarding building design:
1. Evaluation of a project shall be based on quality of its design and relation- ship to the natural setting of the valley and surrounding mountains.
2. Building components, such as windows, doors, eaves and parapets, shall have appropriate proportions and relationship to each other, expressing themselves as a part of the overall design.
3. Colors shall be harmonious, with bright or brilliant colors used only for minimal accent.
4. Design attention shall be given to screening from public view all mechanical equipment, including refuse enclosures, electrical transformer pads and vaults, communication equipment, and other utility hardware on roofs, grounds or buildings.
5. Exterior lighting shall be part of the architectural concept. Fixtures, standards and all exposed accessories shall be harmonious with the building design.
6. Monotony of design in single or multiple building projects shall be avoided. Efforts should be made to create an interesting project by use of complimentary details, functional orientation of buildings, parking and access provisions, and relating the development to the site. in multiple building projects, variable siting of individual buildings, heights of buildings, or other methods shall be used to prevent a monotonous design.
Invalidating the ordinance, the court applied the common vagueness rationale:
[A] statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. In the field of regulatory statutes governing business activities, statutes which employ technical words which are commonly understood within an industry, or which employ words with a well-settled common law meaning generally will be sustained against a charge of vagueness. The vagueness test does not require a statute to meet impossible standards of specificity. In the area of land use, a court looks not only at the face of the ordinance but also at its application to the person who has sought to comply with the ordinance and/ or who is alleged to have failed to comply. The purpose of the void for vagueness doctrine is to limit arbitrary and discretionary enforcements of the law.142
The court in Anderson also observed, interestingly, that integrated graphics could have solved the problems of the code’s imprecise language and overbroad delegation of authority. Citing several example codes in amici curiae briefs, the court noted that aesthetic considerations may in fact be defined in a code or ordinance and that the example codes contained extensive written criteria illustrated by schematic drawings and photographs which helped for clarification.
B. Equal Protection
As discussed, an equal protection question arises where a law treats a person or class of persons differently from others.143 Equal protection issues may arise in land use law when, with regard to land use controls, the government action is not evenhanded in application.
A common equal protection issue within zoning is “spot zoning.” Spot zoning is the reclassification of a small area in a manner inconsistent with the surrounding area, solely for the benefit of the private interests of the landowner.144 Spot zoning is not necessarily invalid; whether the court finds the zoning invalid depends on the circumstances of the case.145 Factors to be considered include the size of the property, the consistency of the zoning ordinance with the comprehensive plan, the public need for the uses allowed by the reclassification, and whether there has been a change in the character of the neighborhood.146 Courts have upheld what would otherwise be illegal spot zoning in order to permit the operation of neighborhood shopping centers or proximate neighborhood commercial uses, as well as the reclassification of areas along highway interchanges from residential to retail on the logic that but for the zoning, traffic would be diverted to other parts of the city.147
Marshall v. Salt Lake City, 141 P. 2d 704 (Utah 1943)
While illustrative on the issue of spot zoning, this case also shows courts’ affirmation of the legitimacy of encouraging walkable communities. Here the Supreme Court of Utah rejected a challenge that allowance of non-residential uses on corner lots abutting the plaintiff ’s dwelling units constituted illegal spot zoning. Salt Lake City’s original zoning districts adopted in 1927 focused on promoting walkability. One of the commercial district classifications permitted residential uses and also retail shops, fire and police stations, banks, service stations, etc. The zoning ordinance applied this designation to land then being used for business uses as well as areas on the corners of intersections on the main thoroughfares in the district. The court rejected plaintiff’s challenge that the allowance of non-residential uses on corner lots abutting his dwelling units constituted spot zoning. Noting that the zoning plan set services “securing daily family conveniences and necessities” within a reasonable walking distance of homes, the court even stated that, “[t]o effectuate this objective, there were created, on a definite unified plan, at the intersections of definite fixed through streets, these small residential utility districts confined to such uses.”
Purser v. Mecklenburg County, 488 S.E. 2d 277 (N.C. Ct. App. 1997)
Here a county adopted a Generalized Land Plan dividing it into seven planning districts, as well as a General Development Policies District Plan (“GDP”) describing community issues, goals, and strategies of the seven districts. Jointly adopted by the city, the GDP provided for several types of mixed-use and commercial centers throughout the county. The smallest type of center in the GDP was the “Neighborhood Convenience Center,” intended for smaller commercial properties for the selling of convenience goods for daily needs of the immediate residential neighborhood. The GDP also described a larger “Neighborhood Mixed-Use Center,” which specified larger properties of non-residential development including services such as a supermarket and restaurant. The GDP employed a flexible process, using four separate procedures for formally amending a district plan.
An applicant petitioned and received approval to rezone a portion of his approximately fifteen-acre property from residential to a parallel conditional use district to allow for a Neighborhood Convenience Center. Upon approval, the petition was challenged by the applicant’s neighbors as spot zoning. Comparing the benefits and detriments to the applicant, his neighbors, and the surrounding neighborhood, the court rejected the claim of spot zoning. The court explained that the philosophy behind the Neighborhood Convenience Center and its placement within residential areas “was to allow those who live nearby to walk or travel very short distances for goods to meet their daily needs.” The court affirmed the trial court’s determination that development of the center would benefit the surrounding community by providing daily goods and services yet eliminating lengthy trips, “thereby lessening the burden on other streets and roads.”
While an important consideration in crafting an FBC, it is important to keep in mind that a takings claim against an FBC would likely fail.148 The United States Constitution does not guarantee a general freedom from zoning changes, and it is well-established that a landowner delaying development on his own property acts at his “own peril” since zoning laws may change.149 In addition, the purchase of land creates no right to build to a property’s highest and best use, or even to rely on an existing zoning classification.150 As for a regulation simply diminishing a property’s value, it is important to remember that this is not a taking;151 in any case, FBCs typically increase, not decrease, property values.152
Nonetheless, there may be potential takings challenges in FBCs. For example, in states where an overlay zoning plan irreconcilably conflicts with the underlying zoning plan, takings challenges could arise. This could occur, for example, where zoning regulations over- lay and are not optional or parallel codes, and this combination of regulations effectively prohibits development.153
1. REGULARTORY TAKINGS
Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)
In Penn Central, a landmark preservation commission in New York City had authority under state law to designate particular buildings as historic landmarks. The owner of any building given the designation was then required to keep the building in good repair and to secure approval by the commission before making alterations. However, the owner could appeal the designation and retained the right to transfer development rights to other properties it controlled. a railroad company appealed to build a multi-story office building above its railroad terminal which had been designated as a landmark. although the Supreme Court rejected the railroad’s claim, finding that the railroad could still develop the rest of the parcel and that the “air rights” of the railroad were transferrable, it nonetheless recognized takings outside of the per se scenario.
The Supreme Court in Penn Central recognized the “ad hoc” regulatory taking, which requires a case-by-case analysis weighing the following factors: (1) the economic impact of the regulation; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the government action.
Many neotraditional or transit-oriented development (“TOD”) ordinances require dedication of transit or pedestrian facilities, which in turn leads to constitutional concerns over takings. While the power to require the dedication of offsite road facilities as a condition of subdivision approval is well-established in most states, the local government must be prepared to show the causal relationship between the need for the roadway facility and the impacts of the subdivision, as well as the benefits to the subdivision from the dedication.154 In Sudarsky v. City of New York,155 the U.S. district Court for the Southern District of New York upheld exactions for transit access.156 In that case, a landowner applied for a building permit in a Special Transit Land Use (“TA”) District, in which the city required subway access. A small portion of the landowner’s property was within the TA district, although no development was planned there. During a downzoning of the parcel, an initial determination was made that no transit easement certification was necessary; the certification was subsequently rescinded. The court rejected the landowners’ takings claims under Nollan, holding that no individualized inquiry into impact was required so long as the requisite nexus existed and the need for transit was present.
Nollan v. California Coastal Commission, 483 U.S. 825 (1987)157
Here the owners of a beachfront lot sought permission to build a larger house on their property. The state coastal commission conditioned the permit on the owners granting an easement to allow the public to walk on the beachfront side of the lot. The government interests were to protect the public’s ability to see the beach from the street, to prevent congestion on the beach, and to overcome psychological barriers to the use of the beach resulting from increased shoreline development. The Court did not take issue with the state’s goals, but nonetheless did not agree that the “lateral access easement” on the beachfront would further these objectives. The Court applied heightened scrutiny and found that the interests asserted would not have been substantially advanced by the easement sought.
Nollan stands for the proposition that when the state conditions development permission on an owner dedicating property to public use, it may do so without paying compensation only if there is a nexus between the land to be taken and the anticipated adverse public effects of the proposed development. In Dolan v. City of Tigard,158 the Supreme Court established that once the Nollan nexus test is met, the state must then show that the extent of the exaction is proportional to the anticipated impact of the development. In Lingle v. Chevron U.S.A., Inc.,159 the Court retained the holdings of Nollan and Dolan but rejected the “substantially advances” rationale. In Lingle, the Court determined that whether an exaction is justified (and exempt from the per se taking rule) depends on whether it was a condition for the granting of development permission and whether, both qualitatively and quantitatively, the exaction was reasonably necessary to prevent or counteract anticipated adverse public effects of the proposed development.
D. Nonconforming Uses
A conventional zoning ordinance generally has rules addressing uses and development situations that do not conform to existing regulations.160 This is a key consideration to keep in mind when creating an FBC. Many FBCs are drafted by architects who are not aware of the law of nonconformities, and courts have yet to apply the principles of nonconforming uses to FBCs.161
Protection of existing uses was an important goal from the beginning of zoning. Even where not mandated by state law, zoning ordinances almost universally permit nonconforming uses to continue.162 But for nonconforming uses to continue, they must be lawfully established at the time the ordinance rendering them non- conforming takes effect. Further, unless precluded by state law, municipalities typically put numerous limitations on nonconforming uses with the goal of obtaining conformance as soon as practicable and reasonable.163 Examples include limitations on changes in use, on rebuilding in event of destruction, on repairs and alterations, and on resuming use after a period of abandonment.164
While FBCs typically do not rigidly control uses, there can still be nonconforming situations.165 White notes that a good FBC should explain how it operates with nonconforming businesses or residences — for example, if a code establishes a maximum front setback, what happens to buildings currently situated behind the setback?166 It seems that, in the interest of feasibility, a municipality would likely do well to be forgiving of nonconforming uses, akin to the approach taken by Columbia, Missouri, in its FBC.
E. Vested Rights
The law of vested rights deals with the establishment of lawful existence that protects a use from zoning changes. Generally, to obtain immunity from a newly enacted law, a developer must engage in substantial expenditures in good faith reliance on a valid building permit.167 This common law vested rights rule stems from the Due Process Clause of the Fourteenth Amendment. The key focus with vested rights is on the actions of the developer.168 The majority rule is that in order to acquire a vested right and therefore gain immunity from a newly enacted law a developer must (1) engage in substantial expenditures, (2) in good faith reliance, (3) on a validly issued building permit.169 In addition, the doctrine of estoppel deals with instances when due to the nature of the government conduct, applying a newly enacted law to the developer would be inequitable. A typical statement of the rule is that courts will estop the government from applying a new law when the developer (1) makes a substantial change of position or engages in substantial expenditures, (2) in good faith reliance, (3) upon some government act or omission, (4) so that applying the new law would be highly inequitable.170
In fact, the doctrines of vested rights and estoppel are similar and often used interchangeably. A solution to the issue of vested rights is the use of development agreements, which in effect fix the rights of developers and municipalities as of a certain date and limit the government’s power to apply new ordinances to approved projects.171 Consideration of the law of vested rights is important when implementing an FBC, and such considerations largely mirror those regarding nonconforming uses.
A variance is an administrative authorization to use one’s property in a manner not otherwise allowed under the zoning ordinance, thus alleviating the hardship that results from community zoning boundaries not fitting well to the distinctive features of a particular parcel or area.172 Under the SSZEA, the power to issue a variance under conventional zoning is given to the local government’s “Board of Adjustment.”
Strict rules limit the grant of variances, and courts have frequently described variances as a “safety valve” so that zoning which would otherwise be unconstitutional as applied can be made constitutional.173 Like all zoning codes, exceptions are sometimes required with FBCs. Emerson explains that for the SmartCode (a transect-model FBC), the process is more streamlined than with conventional zoning. Emerson explains that, unlike with many conventional codes that require the public hearing process for even slight deviations, the model SmartCode entrusts the planning department with limited administrative discretion to grant small deviations from the code if those requests are compliant with the “Purpose” section of the SmartCode.174 This is part of a two-tiered system in which minor deviations from the code are handled administratively, but more significant deviations must go through the city’s existing process for granting a variance.175 Emerson notes that “[b]ecause variance processes are typically mandated by state laws, great care must be exercised in this aspect of implementation.”176
G. Code Administration
Yet critical to the success of an FBC is removal of much of the discretionary review process of zoning. The intent of implementing an FBC is “to establish community and political support for a specific vision that the FBC then regulates for predictable results.”177 Once the vision of the FBC is set and the code written, projects meeting the requirements should be approved administratively.178 This then provides the incentive for developers to meet the FBC requirements.179
While FBCs certainly provide a more streamlined process in terms of administration, there is no doubt still an administrative process for the codes after implementation, and municipalities need to be well-resourced to handle this. Consideration must be given to the administrative body responsible for evaluating specific proposals and administering and interpreting the regulations.180 Sitkowski notes that in light of the “design orientation” of FBCs, the body best equipped to review and make substantive application decisions would be an architectural review board.181 Of course, as Sitkowski states, these bodies may have their own issues with enabling, thus raising concerns of abuse of discretion with the inherent subjectivity of administering any design-based regulation.182
A solution proposed by Sitkowski is the creation of the position of “Town Architect.”183 The town architect (who can be in-house or an outside consultant) serves as gatekeeper reviewing applications and making reports to the decision-making bodies. But the legal issue here is how much decision-making authority can be delegated to this person.
An advantage of FBCs in terms of code administration is public involvement. Because an FBC typically has more precise standards than the conventional design review board approach, the standards are better suited to “behind the counter” administration that does not require a public hearing.184
H. Other Issues
1. PREEMPTION BY STATE AND FEDERAL LAW
As a subdivision of the state, the laws of a municipality (and hence its zoning regulations) cannot contradict state law.185 But these same requirements also apply to federal law as well.186 As discussed earlier, state authorization (including whether the state uses home rule), factors in here.
Congress has involved itself in a limited amount of land use issues where it claims a right to regulate under the Commerce Clause of the U.S. Constitution.187 An example of such involvement includes the Religious Land Use and institutionalized Persons Act of 2000, which prevents local governments from singling out religious land uses for extra levels of control. This is an issue faced by all zoning and is simply something to keep in mind when contemplating the legal side of implementing an FBC. it could be argued that in fact FBCs are less likely to be pre-empted by federal legislation because of their streamlined approach and thoroughness in implementation from the outset.
2. COMPREHENSIVE PLAN CONSISTENCY
Neotraditional and New Urbanist development has a much more solid legal foundation when backed up by a sound basis in comprehensive planning.188 Setting forth major land use policies over community development and also studying and documenting a community’s policy choices,189 the comprehensive plan is supposed to ensure that the public welfare is being served and to protect landowners from arbitrary restrictions. But there can be legal issues if the comprehensive plan is found to be inconsistent. This is simply a consideration in implementing an FBC. Again, one could argue that FBCs would be more insulated from a legal challenge on comprehensive plan consistency in that the process is much more streamlined.
3. SUBDIVISION REGULATIONS AND BUILDING CODES
Subdivision regulation is another land use control based on the police power, and as with zoning, a local government may need specific or constitutional authorization to enact subdivision regulations.190 Subdivision regulations generally refer to controls implemented during the development process, and essential components include the location and design of streets, open space, distribution of population and traffic, and provision of utilities.191 The current trend is to integrate subdivision regulations into comprehensive growth management and planning programs.192 Generally a developer must comply with both zoning and subdivision regulations.193
Building codes deal with construction and maintenance and are to ensure that buildings are safe, sanitary, and in some cases convenient and efficient.194 With FBCs, as any other type of “smart” development, building and housing codes are a major factor for encouraging or requiring new development to be sensitive to smart growth/ New Urbanist principles.195
When crafting an FBC, it is important to take into consideration the neotraditional development objectives of that FBC in creating the subdivision regulations and building codes.
While the legal issues of FBCs was the topic at hand, this paper first provided a background on neotraditional development, city planning, and land use law. Once that framework was established, the paper discussed real-world applications of FBCs. Finally, in discussing the arguments posed above, the paper discussed and analyzed the legal authority and then legal limitations on FBCs.
While FBCs clearly have a compelling normative argument, it has been shown here that FBCs are also well within the realm of possibilities from a legal perspective. Contrary to popular belief, FBCs are well within the legal authority of most jurisdictions. Further, the legal issues faced by FBCs are not altogether different from those faced by conventional zoning. On top of that, FBCs use a more streamlined approach for use of administrative review and are arguably more insulated from legal challenges. While FBC implementation requires extensive work in the beginning, and the legal concerns should not be understated, FBCs nonetheless arguably form a better legal alternative to conventional zoning. As FBCs are the foremost means of implementing neotraditional urban development, all of this is good news for neotraditionalists, architects, planners, New Urbanists, historic preservationists, and others advocating for quality urban places. Local governments would do well to explore the possibilities of FBCs, at least from a hybrid approach incorporated with conventional zoning.
As experts identifying the value and applicability of FBCs have predicted a future surge in their use, this topic is vital today as ever. in the future FBCs will likely become increasingly more and more significant to the way we develop our built environments. Fortunately, FBCs are not only legally possible but well within the legal authority of most jurisdictions. Moreover, the legal issues that arise with FBCs are at the root not altogether different than those arising with conventional zoning; not only that, but done effectively, FBCs can be well-insulated from legal challenges and provide a much more solid and accessible legal framework than that created by conventional zoning. While implementation will require extensive work from at the front end, this will be well worth the results, not simply from a built environment perspective, but from a legal perspective.
The junction of property regulation and private property rights draws a fine line. Fortunately for neotraditional development, this clearly allows for FBCs, while at the same time preserving considerable private property autonomy. Beyond the merits of using FBCs, it is clear that FBCs are not only legally within reach, but done properly, are in fact much better from a legal standpoint.