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increased reliance upon bounded maximum-
<br />minimum ranges. For example, zoning could
<br />require that a building be no lar§er than to FAR
<br />nor smaller than five FAR, no taller than tSo feet
<br />nor shorter than too feet, no closer to the front
<br />lot line than to feet nor deeper than 3o feet. A
<br />more robust, extreme prescription would
<br />squeeze out zoning's looseness and substitute
<br />a precise de{ineadon of virtually every aspect of
<br />development, in effect rendering the
<br />announced zoning envelope no different than
<br />the building program set by the developer,
<br />except that in this case it is established as a
<br />requirement by public planners. Indeed, this
<br />would essentially obliterate the distinction
<br />between plan and regulation, a course not with-
<br />out risks, but one incorrectly assumed to be
<br />to§ally impossible by many planners.
<br /> Prescriptive zoning is amenable to either
<br />rule-based or discretionary approaches. A
<br />rule-based prescription could be imposed as
<br />a uniform prescription, a context-sensitive
<br />prescription, or a mapped, parcel-by-parcel
<br />prescription. In the uniform case, a zonin§
<br />district would require that any building devel-
<br />oped within that district have, for example, a
<br />footprint of 2o,ooo square feet on a tot size of
<br />25,ooo square feet, built to a bulk of zoo,aaa
<br />square feet, mixed-use, with the first floor
<br />active retail uses, the second throu§h sixth
<br />floor office, and the remaining floors market-
<br />rate residential except for Lo percent devoted
<br />to affordable housin§. Such an approach
<br />might satisfy hardmosed believers in conven-
<br />tional zonin§'s Ie§al principle of uniform treat-
<br />ment within districts, but it is unlikely that
<br />such cookie-cutter similarity ,nou[d produce
<br />desirable urban planning results.
<br />
<br /> A large step away from the uniform is con:
<br />text-sensitive prescription, implemented
<br />through contextual zoning, that would man-
<br />date what could be built based on qualities of
<br />the site itself or, more likely, on what has
<br />already been built nearby. For example, the pre-
<br />scription could differ based on the b/po of lot: a
<br />corner tot could be subject to a different set of
<br />rules than a mid-block tot; lots with different
<br />street fronta§es would be subiect to different
<br />prescriptions; and so forth. If the adjacent tot
<br />had a building with an "7," set of characteris-
<br />tics, then the prescription for the parcel pro-
<br />posed for development would follow one set of
<br />rules, if the adiacent lot had a building with a
<br />"Y" set of characteristics, then the prescription
<br />would shift to alternate rules; and so forth.
<br />Contextual zoning is sometimes ca[~ed nei§h-
<br />borhood zoning, in that it takes its regulatory
<br />cues on use, shape, bulk, and even aesthetic
<br />design, from what is now there, tn one sense,
<br />contextual or neighborhood zoning may be
<br />understood as a technique of reverse en§ineer-
<br />lng, where the zoning attempts to replicate
<br />what already works, at least as appreciated by
<br />neighbors. At the same time, from a citywide
<br />perspective, it may equally su§gest a "not-in-
<br />my-back-yard" flavor.
<br />
<br /> Mapped, parcel-by-parcel prescription,
<br />implemented through special districts, would
<br />allow for maximum customization by specifying
<br />individually for each parcel precisely what pub-
<br />lic planners want. This is, in effect, plan as reg-
<br />ulation, leaving little to the initiative of the
<br />owner. Note that the categories of uniform, con-
<br />text-sensitive, and mapped, parcel-by-parcel
<br />prescription rules are not mutually exclusive,
<br />and zoning- may combine several of them into a
<br />
<br />new approach. Traditional neighborhood devel-
<br />opment CrND) ordinances, co.nceived by the
<br />New Urbanists, effectively employ lot-specific
<br />context-sensitive and mapped, parcel-by-parcel
<br />prescriptions, based on ranges and pinpoint
<br />rules, to implement their vision of a better built
<br />environment. Prescription is also achievable
<br />through a discretionary approval process, -
<br />where the city reviews each proposal and
<br />rejects anything that does not fit with the plan
<br />conceived and, hopefully announced, by the
<br />public sector.
<br />
<br /> Obiections to the prescriptive approach
<br />arise on legal and policy grounds. The legal
<br />ar§uments are least convindn§. Although rad-
<br />ical property rights advocates might allege a
<br />taking of private property in violation of the
<br />Fifth Amendment's just compensation clause,
<br />they would lose except for the exceptional
<br />case where the prescription rendered the
<br />owner's property worthless or too deepiy
<br />interfered with the owner's distinct, invest-
<br />ment-backed expectations. Another legal
<br />argument could spring from statutory !unifor-
<br />mity) and constitutional (equal protection)
<br />underpinnings of zoning that prefer consis-
<br />tent treatment of similarly situated property
<br />owners, a notion embodied in the very con-
<br />cept of a §eographicalty conti§uous zoning
<br />district where everyone within the same area
<br />is subject to the same rules on the same level
<br />playing' field. ]'he mapped, parcel-by-parcel
<br />prescription flies in the face of that concept.
<br />8ut to the extent that parcels are not similarly
<br />situated (are they ever?), and to the extent
<br />that planners can identify other reasonable
<br />arguments for treating parcels differently, the
<br />legal bar of uniformity is lowered.
<br />
<br />ZONING PRACTICE oz.04
<br />AMERICAN PLANNING A$SOCIAnON I P~gS
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