The future Haywood Road corridor according to the form based zoning code devised by Code Studios of Austin, TX. The city has now retained Code Studios to submit a form based code for the River Arts District.
AARRC praises zoning method; opponents say it violates property rights
By Roger McCredie- As this week’s Tribune goes to press, the City and its Texas-based consulting firm, Code Studios of Austin, will introduce the public to the form-based code process it intends to use to govern development of the River Arts District.
The plan will be unveiled at a community meeting to be held at 6 p.m. June 17 at the Grant Southside Center, 285 Livingston Street. The purpose of the gathering is to acquaint the public with how form-based codes work and to show how the RAD’s will be applied. .
Use of the form-based code to dictate standards that affected property owners must meet is a linchpin of the master plan begun in 2009 by the body now known as the Asheville Area Riverfront Redevelopment Commission (AARRC). AARRC is a hybrid entity. It is composed of a board of volunteers made up of city and county government members and riverfront property owners, but it operates through city government, under a director who is a city employee, out of an office in City Hall.
What’s “form-based code” and why does it matter?
Simply put, it’s a way of regulating land development by imposing guidelines designed to produce an overall, preplanned “look” within a given area. FBC’s address building facades, street setback and density, often in great detail. FBC’s may set parameters for building height, specify materials that may and may not be used, require incorporation of decorative trees or shrubs, and even furnish guidelines as to the colors of paint and types of signage and exterior decoration that are acceptable.
In other words, FBC’s go far beyond the comparatively elastic requirements of conventional zoning which typically deal with density usage, floor area ratio, setbacks, building heights and parking requirements. The end goal of the implementation of an FBC is to achieve, within a specified area, a general appearance as carefully crafted as a movie set.
Wikipedia and other sources concur that FBC’s typically contain five essential elements:
- Regulating Plan. A plan or map of the regulated area designating the locations where different building form standards apply, based on clear community intentions regarding the physical character of the area being coded.
- Public Space Standards. Specifications for the elements within the public realm (e.g., sidewalks, travel lanes, on-street parking, street trees, street furniture, etc.).
- Building Form Standards. Regulations controlling the configuration, features, and functions of buildings that define and shape the public realm.
- A clearly defined application and project review process.
- A glossary to ensure the precise use of technical terms.
But perhaps the most important feature of an FBC is its legal status: once adopted, it becomes a mandate, not a set of suggestions. It is law, and enforceable as such. And that, as far as some critics of the process are concerned, is where the rubber meets the road.
Solution to urban sprawl … or theft of property rights?
“The City Council funded this project because a form-based code is an increasingly popular tool being implemented in many cities that produces clear expectations for new development. With form-based code, developers, property owners and the community know in advance what the community wants and will accept,” the City of Asheville’s website states.
“This is the second form-based code project in the City; the Haywood Road Corridor form-based code was adopted by City Council in September 2014,” the website points out. (That FBC has come under continuous fire, before and after its passage, for what many believe will place additional traffic strain and construction complications on an already overtaxed traffic and commercial corridor.)
The Form-Based Code Institute says, “A form-based code offers a powerful alternative to conventional zoning regulation.” That, along with the way in which this powerful alternative can be enforced, is precisely the problem, its detractors say.
In 2008, just before AARRC began putting together its comprehensive plan, Lolita Buckner Inniss, a law professor at Cleveland State University, criticized FBC’s as a tool of “the New Urbanism,” a glitzy and not always successful approach to urban planning.
“If this [an FBC] 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 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 it’s really quite invasive in a number of cases,” Inniss said.
In a 2010 essay called “The Dangerous Minds of Urban Planners,” Marc Scribner, a Fellow of the Competitive Enterprise Institute, painted his objections with broader strokes: ““Form-based codes, which have become quite popular as zoning alternatives in the southeastern United States, go far beyond the government invasiveness of Euclidian zoning regulation. Unlike traditional zoning, form-based codes specify regulatory compliance and land-use requirements that go beyond broad separation of uses restrictions. While they are touted as an improvement over zoning, form-based codes are in reality considerably worse.
“Public-sector meddling (and the resulting distortions) is increased across the board, which includes new requirements on green space (e.g., shade trees on private property and public parks), accessibility to public transit, and construction guidelines. In essence, form-based codes further undermine the spontaneous order that largely characterized the real estate market … by greatly enhancing the ability of central planners to dictate the terms of development,” Scribner wrote.
In May, Josh Holmes, a land surveyor and member of Asheville’s Council of Independent Businesses (CIBO) told the Asheville Citizen-Times, “I think that the issue with some of those folks is private property rights. I think that if you passed a local bill stating that no condemnation or eminent domain would be used it would calm a lot of folks down.”
But no such local bill his so far been discussed, and the city’s use of eminent domain, as reflected in its stated position with regard to properties affected by the River Arts District Transportation Improvement Project (RADTIP) is still very much on the table.