by Karen Parolek

Even though the California State legislature turned it down in its 2016 session, By-Right Zoning is getting a lot of buzz these days as a needed tool to help solve the affordable housing crisis many communities are facing. A zoning code is considered “by-right” if the approvals process is streamlined so that projects that comply with the zoning standards receive their approval without a discretionary review process. Unfortunately, in the discussion about a by-right process, conventional zoning has unnecessarily pitted housing advocates against neighborhood advocates.

Housing advocates and developers rightfully claim that discretionary review processes are contributing to housing crises across the country by increasing the cost and delivery rate of housing, and often directly preventing needed housing from getting built. President Obama, Governor Brown of California, and the State of Massachusetts have joined the “By-Right Zoning” bandwagon.

However, residents, environmental groups, and others are upset about the idea of By-Right Zoning because it often seems that the discretionary review process is their only tool to prevent inappropriate and out-of-scale development. Their zoning codes are too blunt to provide the needed control, so they cling to discretionary review as their only protection. In some cases, this may be NIMBYs refusing to allow more or certain people into their communities. In many other cases, however, these are community members from all walks of life who want walkable neighborhood living rather than city living. They feel they have no other tools to compel developers to be respectful of their cherished places. From this perspective, By-Right Zoning may have Jane Jacobs rolling in her grave.

Conventional zoning is too blunt for a by-right process

So, isn’t zoning supposed to define what can be built in our communities? The answer is yes, but conventional zoning is plainly flawed. Here are some of the reasons it doesn’t work well to regulate our walkable neighborhoods. Conventional zoning:

• Regulates in the negative, describing what is not allowed rather than what is required or intended, preventing any possibility of accurately predicting what will be built. Setbacks, Floor Area Ratio (FAR), and density are examples of unpredictable regulations.
• Doesn’t regulate enough detail regarding the form of the building and how it shapes the public space (and often regulates too much detail about unnecessary things). For example, in walkable neighborhoods, it’s often important that the front door faces the street, but most zoning doesn’t address this.
• Is overly complicated, often with layers of fixes and overlays, rendering it nearly impossible to determine what can and cannot be built.

Without fixing these problems, removing the discretionary review process in cities and towns with conventional zoning could detrimentally affect our walkable neighborhoods.

The win-win of Form-Based Codes and a by-right process

Fortunately, we have a proven solution: Form-Based Codes (FBCs). FBCs regulate the form of the buildings in a prescriptive manner and at a sufficient level of detail so that the outcome is predictable. This renders the design review process unnecessary, enabling by-right review. FBCs work like this:

1. Create a detailed community vision

First, the community comes together to create a physical vision for their places, including important details about how the buildings must be built to contribute to the public spaces that are our streets and plazas. The community can dial up or down the level of detail they include based on what they want to allow or require in their neighborhoods.

Importantly, this Form-Based Coding process also ensures that the detailed discussion about where and what type of housing to allow happens at a community level, preventing later project-level battles. While building on decisions made during the general plan process, this detailed visioning with renderings lets community members see and understand what their town may look like once their housing decisions are implemented, and enables them to modify those decisions as needed. It translates policies into pictures the public can truly grasp.

This visioning process is the best time and place for communities to show leadership in advocating for all constituents’ right to decent, affordable, walkable housing options, and for neighbors to consider their desires for their own neighborhoods within the context of how many families are homeless or paying too much of their income for housing and transportation.

2. Write prescriptive regulations

Once these decisions are made, the FBC is written to prescribe what can be built, mostly by focusing on the form of the buildings as they shape the public space, although also including simplified use regulations. Examples include regulating front build-to lines — rather than setback lines — and maximum footprints to prevent buildings that are too large for the neighborhood character. These regulations are carefully written to reflect the context — the regulations for a downtown main street will be different from those for a smaller neighborhood main street. They are also written to regulate only what is truly necessary, removing what is unnecessary or obsolete.

Because of the prescriptive and simplified nature of FBCs, the community can more easily understand what the code allows and can work with city staff to vet the code to ensure the prescribed outcome is appropriate for the neighborhood. In other words, everyone can actually understand the code and its intent, so everyone can help make sure it’s right.

3. Enable a by-right approval process

Once the desired outcome is prescribed appropriately in the FBC, the code can then include a by-right review process. A discretionary process is no longer necessary because the community can be confident that what will be built will be appropriate.

The by-right review process lets developers know all the requirements before they start the design process, so they can create a more accurate pro forma to determine whether the project will be viable. They will also only have to design the building once, saving the cost of multiple redesigns. The lower cost and lower risk of development under a by-right process will contribute to making projects more viable, leading to more housing being built and at lower costs. In addition, the reduced risk on projects within FBC areas can enable developers to lower their profit margin thresholds, since they will not need to cover the cost of projects that did not survive risky discretionary review processes.

By-Right Zoning is needed, so let’s get it right

By-Right Zoning is critically important to increase housing affordability at all levels of the housing spectrum. To get it right, conventional zoning codes need to be updated to FBCs to effectively prescribe the outcome desired by the community, enabling communities to confidently let go of discretionary review. FBCs with By-Right Zoning contribute to housing affordability, ensure that development meets the community’s vision, and help to provide housing options for everyone who wants to live in a walkable neighborhood.

Karen Parolek, a leading innovator in the development of Form-Based Coding, is Principal and CFO at Opticos Design, Inc. in Berkeley, where she advocates for healthy, walkable and equitable communities. She holds a bachelor of architecture from the University of Notre Dame and co-wrote with Daniel Parolek and Paul Crawford “Form Based Codes: A Guide for Planners, Urban Designers, Municipalities, and Developers (2008, John Wiley and Sons). You can reach her at karen.parolek@opticosdesign.com.

A version of this article originally ran in the January/February issue of Northern News, the newsmagazine of APA California–Northern Section. Republished with permission.