Associate Professor of Law, Cleveland-Marshall School of Law,
Cleveland State University, Cleveland, Ohio
Thank you, Carol, for that introduction. It’s a pleasure and an honor to be here this morning. I just want to say that I’ve very much been looking forward to this conference, to hear some ideas about property and land use. Very often, when you’re working in academia, you have your head in the books a lot, and we don’t come out too often and see real people until we come to conferences like this.
First of all, I want to start with an overview of my talk today. First and foremost, what I’m going to be offering here is a critique of New Urbanism in general and “form-based code” in particular and as a tool of New Urbanism. I also want to talk about the fact that form-based code, while it’s often touted as being more flexible than zoning and is a great method to overcome a number of the problems that we see in our cities—urban decay, segregation, economic downturns, what I began to see, however, particularly as I taught the first year on property, is that form-based code is not generally doing what advocates said.
Property is a significant part of my teaching assignment. What we do for a large part of the first semester is to talk about land use and the history of land use. It began to occur to me, as I work with students and work with the materials, that a number of the new tools for zoning, such as form-based code, are really doing the opposite of what a number of their proponents claimed. So I began to look at some of the reasons for that. In short, my argument is that form-based code is nowhere near what it’s cracked up to be. First and foremost, it tries to do by design what was ultimately spontaneous. What it comes down to, and I’ll talk about this in more detail, is that in the city as we have known it and have come to understand it in the United States, and certainly also in Europe, city growth was spontaneous growth. I think it’s problematic from the outset to assume that you can do now by design what it has taken us one hundred years to do in our urban areas. I think you would have to challenge any plan that purports to design something that didn’t come about by design. So that’s one of the first problems I’ve had with it.
Next, New Urbanism. As I’ll talk about in a few moments, when you talk about form-based code, you’re really talking about one of the principal tools of what’s called the new urbanism, sort of a way of getting back to the “old urbanism” and the old city. What I’ll discuss is the fact that the new urbanism, like the old urbanism—that’s deeply contested. The city that you and I may remember may be very different than the city that somebody else remembered. So again it’s problematic when someone purports to put together a plan that’s supposed to take us back to the old urbanism. We all remember and lived in different types of cities, and so there’s no way that we’re going to design something that reflects a vision. There is no single vision. There are multiple visions that could never begin to be incorporated in any one single vision, So that’s another problem.
Finally, the charette process, as Carol mentioned, relies on the “community” in order to sort of pull together form-based code plans. All too often it doesn’t work out as claimed, which is one of the things I talk about in my essay where I discuss the rebuilding of New Orleans that’s the basis for this talk. That’s a wonderful example of what happens when you claim that the community is going to be represented. All too often, form-based code plans end up representing the elites who put them together, who bring in the experts, who all too often monopolize the talk that’s going on. And it’s a wonderful way for a very, very small strand of people in the community to have their views represented as “what everybody wants.” All too often, that’s simply not the case. So that’s my third critique.
Let’s talk a little bit about what form-based code is. I think it’s useful to do this simply because we get a lot of expressions that are thrown around about form-based codes, smart codes, community planning, and there must be at least a half dozen ways to refer to this. When I talk about form-based code plans, that’s really the sort of global generic name for things like “smart code.” Just as an aside, really quickly, smart code is a type of form-based planning. And smart code, particularly the type that’s being commercially prepared and sold to towns (I think it’s by the Duany Company, the Duany people, have a package of about fifty pages), is a template and what they try to do in smart codes is implement form-based code ideology, zoning, urban planning, building codes. They wrap it all up in a nice neat template and you can take this out to your town and put it into place. But that is actually a type of form-based code.
What would describe any plan that’s form-based code would be one that’s first and foremost supposed to be “collaborative”; it’s supposed to be something between government and citizens. So if you’re looking at a plan and ask if it’s a type of form-based code, is there a collaborative piece between government and citizens? Next, it’s regulating “design” rather than “use.” And so it’s pre-scriptive rather than pro-scriptive or de-scriptive, meaning by prescriptive that it tells you exactly what you are supposed to be doing, as opposed to proscriptively telling you what you can’t do, and descriptive telling you the sorts of things you want to do.
Now it doesn’t really take a whole lot of thought to realize that, “Well, wait a minute, if this is supposed to be collaborative and help the community, why would we prefer a plan that’s going to tell me exactly what I ought to be doing, versus something more general?” And that’s certainly problematic in and of itself. There is strong attention to details in
