Throughout the country, local governments regulate the use of land in a similar fashion: by mapping out a plan that governs the separation of uses of physical space in the community, and then implementing the plan on a case-by-case basis according to use-specific zoning ordinances. These designations focus on whether a proposed use fits into segregated categories, such as residential or commercial, and prescribe set-backs, height limits, acceptable densities, and pre-approved business uses. However, a New Urbanist variant on this regulatory structure, known as “form-based code,” is gaining momentum as an alternative to traditional zoning codes and ordinances. Jurisdictions throughout the country - including several in Virginia1 - are experimenting with new zoning code provisions that emphasize the physical form of the built environment, in sharp contrast to prior ordinances that merely considered the property’s use.
Form-based codes seek to achieve a community vision for high-quality public spaces defined by a variety of building types and uses in a given area.2 These provisions should not be confused with design guidelines, which attempt to control how buildings look. Rather, form-based codes regulate the key aspects of urban form in a prescriptive way (i.e. state what you want) rather than a proscriptive one (i.e. state what you don’t want). For example, the City of Portsmouth’s form-based code incorporates “a regulating plan, building form standards, street standards, use regulations as needed, descriptive building and/or lot types, and other elements required to implement the principles of functional and vital urbanism and practical management of growth.”3 In addition, the 92-page code makes liberal use of matrices, color diagrams and detailed illustrations of the desired development patterns.
A major advantage of form-based codes is the streamlined administrative approval process, making land use regulations more predictable for both developers and property owners. The development of a precise and objective code - one that eradicates the politics and uncertainty inherent in most traditional approval processes - requires considerable community engagement, often through charrettes or some other visioning method. This past May, Portsmouth concluded a comprehensive revision of its entire zoning code that involved a dedicated development team, outside consultants and over two years of continuous community outreach and engagement. Those jurisdictions willing to undertake such an endeavor are betting that the quality and quantity of new development will make the investment worthwhile. Under the new Portsmouth zoning code, one developer anticipated that the approval time necessary for his proposed development would shrink from “several months” to “a few weeks.”4
In contrast to Portsmouth’s comprehensive code revision, some Hampton Roads jurisdictions employ form-based zoning only in strategic growth areas. Norfolk revised portions of its zoning ordinance by incorporating form-based elements in an effort to revive the downtown Granby Street corridor and neighboring areas. The form-based provisions apply to property within a specially designated district that contains formerly segregated uses such as retail, high density residential and office towers. Similarly, Virginia Beach drafted a new zoning ordinance for its Oceanfront district to promote mixed-use development.5 In doing so, Virginia Beach abandoned lot-size restrictions and slashed parking-lot requirements, opting for a more walkable and urban vision for the district. These changes seek to encourage independent development by multiple property owners, obviating the need for large land assemblies and the megaprojects that historically were built on such parcels.
As more communities consider a holistic, community-based approach to development, form-based codes should continue to proliferate. These codes may benefit property owners and developers in several ways, such as creating a more streamlined approval process, with less oversight and discretion by review bodies, a less politicized planning process and a reduced risk of takings challenges. On the other hand, when applied to existing urban areas, issues such as vested rights of property owners, sunk-costs by developers, and the considerable time, patience, resources and political skill required to build consensus within a diverse community may pose short-term disincentives to the adoption of form-based code. Over the long term, however, form-based codes offer the promise of abandoning a scheme of costly, ad-hoc bureaucratic oversight in favor of a civic-oriented, clearly delineated system of land use regulation that benefits regulators, developers and property owners.