Thank you, Carol, for that introduction. Its a pleasure and an honor to be here this morning. I just want to say that Ive very much been looking forward to this conference, to hear some ideas about property and land use. Very often, when youre working in academia, you have your head in the books a lot, and we dont 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 Im 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 its 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 citiesurban 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 its cracked up to be. First and foremost, it tries to do by design what was ultimately spontaneous. What it comes down to, and Ill 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 its 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 didnt come about by design. So thats one of the first problems Ive had with it.
Next, New Urbanism. As Ill talk about in a few moments, when you talk about form-based code, youre really talking about one of the principal tools of whats called the new urbanism, sort of a way of getting back to the old urbanism and the old city. What Ill discuss is the fact that the new urbanism, like the old urbanismthats deeply contested. The city that you and I may remember may be very different than the city that somebody else remembered. So again its problematic when someone purports to put together a plan thats supposed to take us back to the old urbanism. We all remember and lived in different types of cities, and so theres no way that were 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 thats 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 doesnt work out as claimed, which is one of the things I talk about in my essay where I discuss the rebuilding of New Orleans thats the basis for this talk. Thats 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 thats going on. And its 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, thats simply not the case. So thats my third critique.
Lets talk a little bit about what form-based code is. I think its 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, thats 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 thats being commercially prepared and sold to towns (I think its 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 thats form-based code would be one thats first and foremost supposed to be collaborative; its supposed to be something between government and citizens. So if youre looking at a plan and ask if its a type of form-based code, is there a collaborative piece between government and citizens? Next, its regulating design rather than use. And so its 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 cant do, and descriptive telling you the sorts of things you want to do.
Now it doesnt 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 thats going to tell me exactly what I ought to be doing, versus something more general? And thats certainly problematic in and of itself. There is strong attention to details in your typical form-based code plan, very often in a number of such plans they even actually tell you down to detail things like the type of facade, the colors. I mean its really quite invasive in a number of cases.
Three ways that you see form-based type code plans implemented. The first one is mandatory, where you have to follow the dictates of the plan, and quite expectedly those plans meet with the most difficulty. So there have been up until now relatively few places that were willing to go mandatory, but thats changing. Optional, thats sort of an alternate plan that doesnt replace a zoning ordinance. Its voluntary. There are a number of small towns on the Gulf Coast that have this floating zoning code. Floating zoning codes are kind of interesting; they dont replace traditional zoning but they do sort of tell developers what they ought to be doing. But then, ultimately, if you look closely at most floating zone plans, they tend to turn into mandatory plans. And so, if you think about it, floating codes are sort of a surreptitious way of getting to a mandatory type of code plan.
Next, I want to talk a little bit about just the history of traditional zoning, because again theres some understanding, some sort of representations of form-based code that I think are not quite accurate. A number of proponents of form-based codes say, for example, Well, you know, form-based code is supposed to help us with our land uses in a way that zoning never could. And, again, they talk about the New Urbanist idea and going back to the way we were.
I think its really important to understand that the way we were, the things that sort of make big cities what they are, the things that make them have specific characters, a lot of those particular attributes and characteristics actually predate traditional zoning. Its really important to acknowledge that before traditional zoning, there were private land use agreements and nuisance laws, there were some common law land use tools that helped people to build the cities to get to be the way they were. The urban owner class basically relied upon servitudes well before there was anything that looked like zoning. That is to say, there were private agreements between homeowners, between neighbors, easements, rights-of-way, real covenants, deed restrictions. There was also nuisance law. If your neighbor was using his land in a way that was bothersome, you could always sue him.
These were the tools in the arsenal of urban owners for many years, long before zoning came into play. These tools are still available to a number of people, notwithstanding zoning or even form-based code type plans. And so its important to keep in mind that, even if you never had form-based code, even if you never had a traditional zoning plan, there would still be ways to control land use and to develop cities in a way that was to the benefit of most people who lived in them.
What started to happen is that observers noted that there were problems with private land use. First, with private agreements, if you didnt have one in place before you had a problem, then there were really very few options left for you. So lets say that theres a group of homeowners, and they have covenants, deed restrictions about whether or not they were going to make a particular use. If there is one neighbor among many who wants to build a 40-foot fence to put his property behind, that would not necessarily be a problem unless, of course, lots of neighbors objected to it, and, if they did, without a land use agreement in advance there wouldnt be a whole lot you could do about that.
So then you would ask yourselves, Well, we dont have an agreement between or among neighbors that we wont do certain things, the only thing I can turn to would be nuisance law. Nuisance law, of course, is useful for a problem that arises even in the absence of an agreement in place. But with nuisance law, you had to be talking about something that was unreasonable, that is to say that unreasonably interfered with someones use and enjoyment. And whats unreasonable to you may not be to me; its very fact-specific. In short, private land use has its limits because if theres no agreement in place in advance, you cant do anything. And even using nuisance law, the facts may simply be against you. These are the biggest issues that tended to move urban elites towards wanting zoning ordinances, and, let me say, prefacing what Im going to get to next, it was chiefly urban elites who brought zoning to us and who implemented it.
Lets talk about some of the reasons for that. What starts to happen if you look briefly at the history of cities in the United States, is that between 1850 and 1900, that was a period of some of the biggest growth that we have ever experienced. Youve got the Industrial Revolution, youve got lots and lots of immigration, youve got big cities growing, pollution, crowding. But then, one of the points that Ive highlightedseismic social change, class mobility. All of a sudden cities are no longer just for rich people. Its really rather interesting, those of you who are history buffs who like to go to places like Philadelphia, New York, even a number of somewhat smaller regional towns, Albany, Cleveland, what youll find is that theres glorious old architecture, huge mansions, lovely buildings right in the heart of cities. Theres a good reason for that. The wealthy lived in city centers, poor people lived on the outskirts of cities. That was the early American city model. That still tends to be true to some extent, even in European cities. I know, for example, several years ago when I lived in Paris for a while as a young student, I lived on the outskirts of Paris because I couldnt afford to live in the City of Paris. Thats still where the rich people lived. With few exceptions here, and Im thinking of some of the finer neighborhoods in Chicago and Manhattan, where still lots of rich people live.
What started to happen is that poorer people started coming to the cities. That was really what started a movement for zoning in this country. Rich people realized that they would not, for example, be able to rely upon private land use agreements, which is what they had done previously. When they had like-minded neighbors with them, they could all agree on what they would do. And if there was some neighbor who wasnt like-minded, and they did something, there was always the possibility of a nuisance suit. But then you had poor people coming in as tenants in some neighborhoods that were declining, and you had poor people that even frequented rich peoples neighborhoods. Remember that private land use agreements and nuisance laws are only about dealing with landowners and ownership. People who were simply in your neighborhood, frequented your neighborhood, worked in your neighborhood, there wasnt much you could do in terms of private land use laws about those people.
So what you start to see is a number of the wealthy, mostly Eastern wealthy of the elite, they go to Europe and they notice that there are movements afoot there. First and foremost, the Garden City movement. There was a man named Ebenezer Howard, and hes really at the root of our current zoning plans. He decided that the best way to improve the lives of Londoners, as I said, of some of those poorer people who were starting to crop up on the edges of London, was to move those people out, out to model cities. And there was going to be segregation of uses, and permanent green spaces, and it was going to be lovely.
But again, when you closely query what was going on there, what you find is that this would vacate a number of the urban spaces that would allow the wealthy to sort of retake them, number one. Number two, theres a piece of the Howard Garden City movement thats very little talked about. That is that his plan eliminated private property ownership. That is sort of conveniently glossed over when people talk about the history of zoning and how wonderful it is for us. So what you have, then, is a number of the wealthy look at whats going on in Europe, and say, heres a way to sort of mediate our class conflicts.
You see the City Beautiful movement, thats sort of the earliest form of zoning you see promoted here. Its the wealthy who decide, Lets have a segregation of uses, well put industry over there, businesses over there, residences over there, segregation of uses. What you can see, from Ebenezer Howard to the City Beautiful, ultimately led to zoning, enshrining zoning. So we get to 1926: Euclid v. Ambler Realty. A lot of you probably know about that case; thats the case where the U.S. Supreme Court ultimately said that zoning is not a taking and that its entirely permissible. Even by 1926, a lot of people had forgotten about the ideological roots of the zoning movement. By then it was sold as a way to preserve our urban way of life. What it actually amounted to was a way to preserve the way of life of the wealthy, if you look very closely.
Working and living in Cleveland now and being a history buff, I very much enjoy thinking about this case. I dont want to spend time on the Euclid case, but just to sort of give you an overview. Around the time that Euclid was first being litigated in the lower courts, and even by the time it got up to the Supreme Court in 1926, Cleveland, Ohio, I believe, had the highest per capita income in the United States. Now think about what that means. I believe its now the poorest or second poorest town. Cleveland, Ohio, was a place where a number of the nations wealthy had created their wealth and where they continued to live and to add to their wealth. Consider, for example, the fact that the Rockefeller wealth started in Cleveland, and thats just one example of many. What Cleveland did, very quietly, was to put into effect its own type of zoning ordinance. Why? To keep out the sorts of uses, industries, businesses, and the sort of people that they really didnt want marring the beauty and the wealth of Cleveland.
What that meant was that nearby towns like Euclid got fearful. If youre familiar with the geography of Cleveland, Euclid is sort of contiguous on one of the borders there. They said, Wait a minute. If Cleveland is going to keep out industry and certain types of retail and, effectively, poor people, because very often if you build a factory they will come, meaning your workers have to pretty much live nearby. If Cleveland is going to sort of start walling those people out with their own zoning code, those people are going to come to our town. We cant let wealthy Cleveland push the sorts of uses that they dont want over onto us. So the City of Euclid put into effect a zoning code, really a sort of defense against what Clevelands wealthy were doing.
Well, the Ambler Realty Company, they happened to get caught in the crossfire. They were land developers and they owned many acres in Euclid. At the point where they first owned it, they could have done anything they wanted with it, obviously. There werent any zoning codes in place. But it was pretty much vacant land. With the implementation of the zoning code there, however, they suddenly had land that was now part residential, part retail, part industrial. The value of their holdings went down dramatically because their uses were now limited, and they sued and ultimately they lost.
But think about that history of Euclid v. Ambler Realty. We in law school, we law professors, we are supposed to come marching into class, we teach this and talk about what a wonderful thing it is that we have Euclid and that we have zoning. We talk about how the Supreme Court reached its decision. And I do that. But one of the things I do, I encourage students, Well, wait a minute, lets think about how did all this came to be. Youre really talking about something that ultimately was to the benefit of the wealthiest people in our city and in our region. Who gets caught in the cross hairs are really relatively small actors like Ambler Realty. One of the things we do in my class and thats maybe why my class is different from other first year property classes, I sort of ask what happened.
Some people trace the decline of places like Cleveland to Euclid v. Ambler Realty. Because think about what has to happen when certain property values are falling because of these types of divisions of uses, and think about who that ultimately benefits. Smaller people, smaller users, business owners, the people who might have created wealth, created jobs, they cant do that as broadly as they could have. So again, remember that this is our model for sort of creating plans that are going to help us in terms of making our cities better. You might argue, as I often do, that this was sort of the beginning of the end of our big cities.
Post-zoning challenges. Fast forward. Weve had traditional zoning in place, and its been tried since 1926. And now were noticing, gee, depopulation of older cities, decay, Rust Belt phenomena, aging baby boomers! One interesting line that people rarely draw is, think about Euclid v. Ambler Realty. At the point where you can no longer put up your light industry in or near a big city, there go the jobs, there go the people. Its really very straightforward, it makes perfect sense.
And Im thinking again about another place, another Rust Belt, Trenton, New Jersey. I worked and lived near Trenton for many years. And if youre familiar with Trenton, New Jersey, you know that there are a number of parts of town where there are lovely old brownstones surrounding what used to be small and medium sized factories. People lived there, people worked there in those neighborhoods. Now those neighborhoods are completely decayed. The factories are gone or closed. As a result of existing zoning ordinances, it would probably be impossible to bring in new ones, or at least any that would significantly employ anybody. And so, what that ultimately means is that a lot of those housing units could never and would never be used again, unless youre going to infuse a lot of money to build them up, and to what purpose? The people who live in them have no place to work. So youve got depopulation, decay, aging baby boomers.
At the same time youve got Sunbelt cities that are growing. And its sort of interesting, again its a side note. People say, Oh, look at all those wonderful, beautiful places out West. What makes them attractive is because theyve got form-based codes, smart codes. I beg to differ. A lot of the growth that started out there was before they got the smart codes. It was because there were large tracts of unzoned, unincorporated land where people could build and pretty much do what they wanted. The smart codes and the form-based codes came later, when somebody decided it would be a good idea. Workplaces and retail got farther and farther from where people lived, and there was more economic and racial segregation.
Heres a moment to pause and think about some of the other work that I do. As Carol mentioned, a lot of my work is in racism, comparative racism. Ive gone to conferences where people say, How can you suggest that it would be a bad idea to have form-based code? Its a wonderful way to help the disadvantaged or the poor and minorities. And I say, No, no, actually no. It would be completely the opposite. Ill talk a little bit more about that. The people who are disenfranchised by form-based code processes are ultimately everybody and anybody who doesnt happen to be part of a pretty elite economic group, and so that would be most middle class people. Even lots of upper middle class people. And certainly most poor people. Form-based code processes, by their very nature, dont work for most of us, even though they purport to represent most of us.
This is where a lot of my work on race and racism fits in; this makes perfect sense for me in terms of the other type of work I do. Because, again, I invite people: Dont just accept conventional wisdom about whats good for you and whats good for poor people, you really have to query ultimately what you or anybody else is getting out of it.
Problems. So to summarize quickly, whats wrong with form-based code, if its supposed to be sort of the re-do on zoning and its supposed to help us out? First, again, it tries to do by design what was spontaneous, its based on this idea of urbanism, which was said to be at the root of New Urbanism, and then the faulty charette process. In this charette process, in which the community is supposed to participate, most people are ultimately left out. Again, reminder, economic impetus of city formation. Most cities were not built as social or political communities. It is, in summary, about the money. Thats why cities formed. Think about where the largest cities in the United States are. Theyre around ports, theyre around cities of commerce, the places of commerce. The wealthiest people lived in center cities. They were big businessmen, they had shipping concerns, they had industrial concerns. The poorer of us lived wherever we could. That is to say, on the edges and outside of cities, and it was really nice sometimes when we could get a job or a factory started right near the urban core, because that was the only thing that would have allowed poor people to get near the cities. Urbanization at its core was about privatism, it was about the accretion of individual wealth. Im not suggesting that this is a good thing or a bad thing. Its just a neutral thing. If cities were about money, then I think it would not make sense for us to forget that when we try to recall or create the city of the past. It was not ideological in the sense that it was about a certain social view or political view. It was neutrally speaking about the money.
What else? Urbanism this whole idea of New Urbanism. First, it forgets that it was economic impetus that started the cities. Next, urbanism is a mix of competing cultures, that is to say, your city, my city and the next guys city can be very different. As Carol mentioned, Manhattan, The City in broad terms, there was the Lower East Side, theres the Upper East Side, theres the West Side, and thats just one small example of competing cultures or views of urbanism. Nonetheless, people say, Lets go back, lets have New Urbanism to go back to the old urbanism. Well, there isnt any single one.
And with this New Urbanism, and even urbanism itself, were trying to build something on a micro scale. Some look at macro development, some are ecologically focused, some look at the exurbs, inner ring suburbs, suburbs, theres no one single strand. How can we possibly promote something that has so many interpretations? And again, this sort of accidental urbanism, just as a reminder, whatever it is we have that we think is good about urbanism and hence New Urbanismwalkability, clusters of people. Happenstance. Accident. Keep in mind that even traditional zoning did not come into play significantly until after 1926, when it is upheld in Euclid v. Ambler Realty. So anything that we have in mind about urbanism and hence the New Urbanism is very much contested.
Something else we dont think about, who says we want to live this way? All too often, theres a certain kind of urbanist, they say, People like to walk and they want to see each other. And they want to be in centers and they want to... There is no single view that we could honestly, if were being intellectually honest, honestly put forward as the way that anybody wants to live. And so, again, its going to be problematic.
Also consider that people say, Lets have a city like we used to have. Well, for those people who are social justice activists, and I am, I say, Wait a minute. Traditional cities, thats where the rich people live. They didnt want anybody who wasnt very wealthy to live there, and zoning was a way of helping to wall out some of their neighborhoods. How could we say that this form-based code in general is a social justice tool when what its based on was something that by its very nature was exclusionary?
And then finally, the charette, replicating existing power dynamics. The hallmark of form-based code is collaboration, and thats supposed to be where a bunch of people get together and we all talk, and we all talk about what it is that we want. First of all, the we is never too well or fully formulated, and as Carol mentioned, you might get to go to one of those meetings if you hear about it. You might even get to talk at one of those meetings. But all too often, there are organized and very much pre-determined ideas about whats going to happen. And you might even be at one of those meetings and think youre hearing what the opposition is, but when you get the packaged summary, Huh? I didnt think that was the sense of that discussion. The charette, all too often, and I heard this at a conference I attended back in Houston with Randal, someone in the audience said, The charette? Where I live we call it the charade! And thats all too often the case. And yet, this is supposed to be the hallmark of what goes on with form-based code plans.
Finally, form-based code and the charette are what I call responsibilitization. Thats actually a word, I wasnt the first to use it, but I think its useful in my work. Its an example where the government says, You guys dont have any power to decide what your neighborhoods like in fine detail. Were gonna let you do that, were going to give you autonomy. Its not us, its you making the decisions. Its not us. But the government doesnt actually abdicate control over it. So responsibilitization, in short, would be those situations where the government claims, Were deregulating and you get to do what you want to do. But theyre not really privatizing. And were really not going to a free market model. Theyre still in control. Which ultimately means, if it comes out well, then they did it. And if it comes out badly, then you did it. Thats sort of how I would describe responsibilitization in a nutshell. And I think its all too often a farce thats perpetrated on the poor and the less well off.
So, in conclusion, form-based code is not un-planning or un-zoning, as a lot of people would have you believe, that this is going to fix the problems of zoning. Next, its an alternate planning and zoning by people who may not be accountable and who may not represent all members of the community. Finally, models to address the design of todays city are probably somewhere between private use agreements and traditional zoning schemes where theyre so dependent on where youre talking about. One of the problems inherent with form-based codes and types of form-based codes, like smart planning or smart codes, is that they sort of package up something and say, Here you go, heres your template. Just fill that in, have your architects, city planners and lawyers fill it in for you and then serve it up to the public. All too often, thats not going to work for a lot of people. You need something that takes into account the interests, needs of a particular community. And then, finally, the key here is to honestly assess the goals for any particular neighborhood from the ground up, and to accept the ad hoc nature of this entire process, and not just the zoning and planning process but city formation.
Then, my final closing note would be, particularly given the economic downturn we find ourselves in, I would say, and Ive said it before, that all too often what we see now is the chickens coming home to roost in a lot of these smart code communities. There are a number of places where you have just sort of street after street of lovely, model planned, community homes that have all cropped up, of a certain design to meet certain standards or certain ideologies, and those are going to be empty. Why? Because you cant do that without the sort of spontaneous growth generators like jobs that need to be there. You cant sort of design lovely streets and homes and say, Go there, if you build it they will come. No, no, no. If, for example, you put a workplace there, then a neighborhood probably would have cropped up that could have been sustained. But in a number of the newer communities, they are among the first to fail in this crisis. So Im going to end there.
Again, thank you very much.