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<br />
<br />de minimus deveJopment is not aJways treas-
<br />ured highly by those owning' property within it.
<br />A second ar§ument is that it is easier and
<br />cheaper to administer a rule.based system,
<br />since high-revel administrators with expertise
<br />are unnecessary. Third, a rule-based system is
<br />less susceptible to the corruption of lobbying
<br />and politics, not [n the sense of illegal bdbery,
<br />but (n the sense of al(owing improper consider-
<br />ations to color a decision. Fourth, rules force
<br />planners to decide about planning in a more
<br />comprehensive, flature-odented way, rather than
<br />making things up as they go a[ong. Fifth, plan-
<br />nors too often are co-opted by deve(opers in a
<br />discretionary system and concede more than
<br />they should.
<br />
<br /> The arguments for discretion revolve
<br />around a different take on planning and
<br />design. Discretion proponents might agree
<br />that rules produce certainty, but they deem
<br />certafnw a minor virtue, first, discretion advo-
<br />cates cite the impossibility of reducing to
<br />rules the quaUties that make for well-
<br />designed urban environments. When rules are
<br />stated, the,/say, developers provide totter-of-
<br />the-law compliance or find loopholes that, in
<br />either case, produce mediocrity. Second. dis-
<br />credon allows for an engagement with devel-
<br />opers that, instead of co-opting/he planner,
<br />fosters collaborative inventiveness absent
<br />from the rule-based approach. Third, discre-
<br />tion allows planners to secure exacdy what
<br />they want, even if the owner does not wa.hr to
<br />produce it. Fourth, discretion is not as dis-
<br />liked as rule-based proponents may claim,
<br />Oevelopers and their servants (law/ers, expe-
<br />diters, architects, pianners, etc.) have invest-
<br />ed much time learning the navigation skirts
<br />needed for discretionary approval and are not
<br />as ready to jettison such skills to the nas~
<br />wind of rule-based zoning as developers'
<br />encomia to rules might otherwise suggest.
<br />
<br /> In an attempt to secure the virtues, with-
<br />out the ,/ices, of each system, some practi-
<br />tioners attempt to marry the best of rules and
<br />the best of discretion. Here, tile rules are,
<br />indeed, set forth clearly in advance, but the
<br />issue oi determining whether the developer
<br />has met the rules is left to hi§h[y skiUed plan-
<br />ners and dost§nets rather than building
<br />inspectors or inspection services department
<br />bureaucracies. !n theory, the city planner
<br />must approve the proiect if it meets the ruies,
<br />
<br />but she can urge the developer to do better
<br />than simply comply during review of the
<br />deve{opment proposal. Zoning laws some-
<br />times refer to this process as "certificatio¢."
<br />
<br />TO PRESCRIBE OR NOT TO PRESCRIBE:
<br />THAT I$ THE QUESTION
<br />imagine the omniscient plannerwho lives in a
<br />world where zoning mandates precisely what
<br />the owner must buiJd on her properb/, in the
<br />most extreme version of this world, the owner
<br />must build what zoning toils the owner to
<br />build, or she loses the property, in a less
<br />extreme version, the owner must build what
<br />zor~ing tells her to build if he builds anything
<br />at alt. Of course, both of these approaches are
<br />more intrusive than most of today's zoning. To
<br />begin with, today's zoning (for this discus-
<br />sion, let's call it conventional zoning) does
<br />not interfere with the decision not to develop
<br />at all. Put another way, a vacant lot does not
<br />offend conventional zoning. Moreover, con-
<br />
<br />ventional zonin§ tends toward proscriptive,
<br />rather than prescriptive, mandates when the
<br />owner chooses to build. The rules most often
<br />tett the owner what she cannot do (proscribe),
<br />rather than what she must do (prescribe).
<br />Maximums beyond which the owner may not
<br />.~o are the rule, with more restrictive com-
<br />
<br />mands the exception. Thus. the owner may
<br />no( exceed ~o FAR. The owner may not devel-
<br />op more than to units per acre, The owner
<br />may not build higher than tSo feet.
<br /> Conventional zoning shows glimpses of
<br />being prescriptive;, however. Within the trio of
<br />use, shape, and bulk restrictions, use is the
<br />one most often treated prescriptively. For
<br />example, exclusive(y single-use zoning dis-
<br />tricts, rather than so-called "pyramidal" or
<br />"cumulative" use districts, constitute a pre-
<br />scriptive model, in that their rules dictate
<br />specifically what the use must be rather than
<br />allow the owner to choose to build, for exam-
<br />ple, less intensive uses (residential) in more
<br />intensive (manufacturinff) districts. This is not
<br />an argument for single-use districts as a mat-
<br />ter of good planning; it Js only a factual state-
<br />ment that they are more prescriptive than pro-
<br />scriptive. Shape rules also provide tastes of
<br />prescription when they mandate "but{d-to-
<br />the-street-wall" or "zero tot tine" develop-
<br />
<br />ment. Compare that with minimum setback
<br />rules (stating that the owner cannot build in
<br />the first zo feet from the tot tine, but may
<br />build.am/where starting from zo feet back),
<br />which are proscriptive in nature.
<br />
<br /> How may zoning' gravitate toward greater
<br />prescription?. A first step would involve
<br />
<br />ZONINGPRACTICE o~.o,~
<br />A~ERICAN PLANNING ASSOCIATION I po~e 4
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