Agenda - Planning Commission - 04/01/2004

Home

irs alone as a legitimate object of police power regulation, and most states today interpret their state constitutions as equally permitting attain- ment of this goal. The more interesting question is whether design review and guidelines truly achieve a more pleasing or stimulating' pflysica( environment, or whether, in theory and prao tice, planning efforts to secure better aesthetic outcomes are misguided. Me answer is as much philosophical as empirical, Some private designers believe that public control over design is antithetical to the creative process, an interference with design as artistic venture. Many describe the results of design review as a monotonous, [owest.common-denominator built environment that, in service of conformity with context, is bereft of adventure, challenge, or whimsy. Public planners would claim that design review equai(y often rescues cities from mediocrity, forcing developers to meet higher artistic standards than they otherwise would. Context may not be ail, the,/say, but if aesthet- ics-based zoning can hetp secure a sense of place in new architecture, even at the cost of occasionally reining in the promise of wild adventure, then it is worthwhile. LESS I$ MORE The mandatory prescriptive approach enjoys its antipode in what some call flexible zoning, but what might be more accurately coiled no zoning. Here, government exercises no poiice power land-use reguia£ory oversight over the use and development of tend, within 'parts or alt ora cib/. ]'his is not the same as saying there are no legat restrictions whatsoever. Land in Houston, that notorious poster child for no zoning, is actuatly riddled with private legal restrictions and subject to public re§ute- lions of various kinds that effectively control much of what is developable on land. Still, Houston properties are net encumbered by conventional zoning, and the results are there for afl to see. Some see great differ- ence, especially fn the iumbie of uses iocat- ed cheek-by-jowl at the neighborhood level and the observable absence of a pedestri- an-friendly public realm. Others are sur- prised at the degree to which the city's downtown resembles zoned downtowns in other parts of the Southwest and South. Whatever the empirical judgment in Houston, the "no zonin§" approach has never gained traction in other American cities. It is one thing for Houston, with legacy as destiny, to continue in that tradition, atthou§h it is worth observing that Houston i/self consistently steps to the zoning brink, most recently with consid- eration of neighborhood-based restrictions on building form. Understandably, it declines to call such potential restrictions zoning for fear of committing singular identib/suicide. Elsewhere, however, too many people have too much ora stake in the existing zoning system to beiieve that their rib/could throw out the baby with the bath water. No one truly trusts a private deveb Land in Houston, that notorious poster child for no zoning, is actually riddled with private legal restrictions and subject to public re§ulations of various kinds that effec- tively control much of what is developable on land. oper or neighborhood to plan for itse(f, for fear that such self-interest would contradict other stakeholder interests. In short, the "no zoning" experience in Houston stands foremost as an ideological beacon for private properb/advo- cates rather than a practical alternative for urban land-use re§ulation. The "no zoning" approach has wider appeal, however, when it comes to consider- lng areas where economic development is the overriding goal. Taking a cue from the British experience with enterprise zones and America's copycat empowerment zones, cities couid waive zoning, other re§uiations, and local taxes within a defined geographic zone, to encourage development, especially job- producing development. Empirical evidence from British and American zones suggests a !ess-than.robust outcome, however, with development activities often shifted from a non-qualifying location to a qualifying one without an increase in net jobs within the city. THE HAL?'NAY HOUSE OF MARl(ET-BASED ZONING Lurkin§ between mandated prescriptive zon- ing and no zoning are efforts where cities use zoning as carrot rather than stick to encour- age the private real· estate market to act in desired ways. Although conceptually revolu- tionary when first introduced in the late ~95os, the market-based technique of incen- tive zoning has subsequently experienced counter, revolutions and revisionist thinking as some of its flaws have become apparent. Under incentive zoning, cities dan§to finan- cially valuable zoning concessions to encour- age developers to provide 'desired public amenities. Typical incentives include density bonuses; height, setback, yard, and coverage waivers; and parking ratio reductions, a~l d. esigned either to increase revenue (more rentable or sellable space) or reduce costs (more cost-efficient floor layouts, for exam- pre). Typical amenities may be divided into urban design (plazas, arcades, parks, streetscape improvements, better design), cultural (arts, museums, libraries), and social (affordable housing, day care centers) cate- gories, although even market-provided uses such as retail facilities and restaurants are sometimes encouraged. incentive zoning may be administered by rule or discretion. In a rule-based system, the incentives and amenities are expressly and precisely delineated in the zoning text, and the developer receives the zoning con- cession as a matter of right if she provides the amen/b/as described. In a discretionary system, the incentives and amenities are only broadly described in the zoning text, while the specific details are hammered out in proj- ect-by-project negotiations between the city and the developer. In either case, to make the bargain economically viable, the real estate financial value of the zoning' incentive must equal or exceed the real estate financial cos[ (capital and operatfn.¢ of providing the amenity, In theory, incentive zoning should be limited to circumstances where the incentive is ne~essap/, sufficient, but not excessive, to secure the private sector's cooperation, The incentive should be necessary because, if the city could obtain the amenity without it, it would be better off. It is all too easy to forget 76 ZONING PRACTICE ol.04 AMERICAN PLAtlNIN6 ASSOCIATION