Tuesday, October 18th, 2011

A Beginning Agenda for Making Smart Growth Legal by Kaid Benfield

[ Kaid Benfield is Director of Sustainable Communities for the Natural Resources Defense Council. He also writes what I consider the best blog out there by anyone who is institutionally affiliated. I’d encourage you to check it out. And more institutions who want to do social media well should learn from Kaid’s example.

I’d like to preface this article with an editorial comment that I’ll stress is mine, not Kaid’s. I sometimes get grief for saying that we are drowning in regulation in this country and it is killing our ability to get things done. But I’m more and more seeing writings from even clear liberals who increasingly see that this regulation doesn’t just stop bad stuff, it stops the good stuff too. Here Kaid explains how smart growth is actually illegal in most places. Reading the news we also hear about things like organic raw milk farms in Wisconsin getting shut down or how Occupy Charlotte protestors can’t bring in port-a-potties (a basic sanitary measure) because it is against code. And of course try to build a transit line and see how long it takes to clear the review. Hopefully at some point we’ll see some sort of bi-partisan consensus around dialing back at least the worst of this regulatory insanity – Aaron. ]

historic Annapolis (by: Kevin Wilson, creative commons license)

When then-governor Parris Glendening announced a key portion of what was to become Maryland’s path-breaking land use legislation in the 1990s, he stood in the historic district of Annapolis, where Maryland’s State House is located.  He told the crowd that the best parts of downtown Annapolis – a picturesque, highly walkable and much-loved collection of 17th- and 18th-century homes, apartments, shops, civic and church buildings, restaurants and small offices just above the city’s harbor – could not have been built in the late 20th century. 

Modern zoning and building codes wouldn’t allow it.  There are too many uses mixed together, insufficient setbacks from the street, not enough parking, stairways that don’t meet modern building codes, streets too narrow, and so on.  The implication was clear:  there is something very wrong with a system of laws that has deviated so far from our intrinsic instincts that it has, perhaps unwittingly but nevertheless effectively, outlawed the very things that have made Maryland’s state capital so popular with residents and visitors.

Maryland Ave, Annapolis (by: Mr T in DC, creative commons license)This blog is replete with great examples of more recent development that attempts to recapture some of the attributes that make historic districts so loved.  We are pleased to celebrate these new examples of sustainability, places that make walking a viable option for going about one’s life, that shrink the footprint of development, conserving land and infrastructure.

But, in almost every case, those exemplary new developments have required special exceptions from the building and zoning codes in effect in their municipalities.  This has basically made sustainability much harder to build than sprawl, when our regulatory system should be doing just the opposite.

This brings me to a simple set of recommendations by “a roundtable of interested parties” constituted in Seattle.  My friend Chuck Wolfe is a member of that roundtable, and he has very helpfully summarized the group’s key findings in a post on the Seattle blog Crosscut.  (Chuck also writes his own blog MyUrbanist, and we are both writers in The Sustainable Cities Collective.)  The recommendations are not radical but, rather, all grounded in pragmatism and, if I may say so, common sense:

Encourage home entrepreneurship.  Home-based businesses should be freely allowed so long as impacts to surrounding properties are minimized.  I have to note that I am writing this blog from my home right now (it’s 10.30pm); I have no idea whether that is technically legal or not.  The large government agency where my wife works has such an aggressive telecommuting program that some 80 percent of agency employees now work from their residences most of the time.  living above the store in Kentlands, MD (by: EPA Smart Growth)It’s time for our laws to catch up with reality, save the transportation energy and congestion associated with commuting, and allow people to work and serve customers from home again, as we did routinely for centuries.

Concentrate street-level commercial uses in pedestrian zones.  On this issue, Seattle’s current law is actually more progressive than most:  street-level commercial uses have been required for some time in larger new buildings.  The roundtable, working from experience, is recommending that the requirement become more nuanced and be made applicable primarily to buildings in designated pedestrian zones, not uniformly applied outside of those areas as well. 

Enhance the flexibility of parking requirements.  “As Seattle’s transit service improves, demand for on-site parking will shrink. This recommendation will allow the market to determine how much parking should be provided in locations within one quarter mile of good transit service (generally, those with at least 15 minute headways). It eliminates minimum parking requirements for residential or non-residential uses in such locations.”  Personally, I might apply a nuanced approach here as well, with perhaps some limited minimum requirements for larger buildings that abut single-family residential areas.  There doesn’t need to be an all-or-nothing approach, and we want neighbors to feel comfortable with nearby intensification where it makes sense.

corner store in Georgetown, DC (by: M.V. Jantzen, creative commons license)Allow small commercial uses in multifamily zones.  This should be a no-brainer; bring back the corner store, please.  The recommendation in Seattle is to allow small corner stores in two- and three-story multifamily zones in certain designated districts; the city already allows them in “mid-rise” and high-rise districts. 

Expand options for accessory dwelling units.  I believe accessory units – garage and basement apartments, “granny flats” and the like – should be allowed most everywhere.  They allow a bit more density with very little change to the look and feel of a neighborhood.  In this case, the roundtable is recommending expansion of Seattle’s excellent “backyard cottages” concept.

Allow mobile food vending and similar temporary uses.  Another no-brainer.  Food trucks and farmers’ markets are springing up everywhere in America.  And it’s not exactly a radical idea: ever hear of the Good Humor man?  But it some places it is restricted, common sense notwithstanding.  (Reminds me of the recent local case in suburban DC where a kids’ lemonade stand set up outside the US Open Golf Tournament was shut down by the authorities.  Jeez.)  food truck in Miami (by: muy yum/Larry, creative commons license)In Seattle, the roundtable would allow vending carts on private property where other commercial uses are permitted and extend the permitted days and hours of farmers markets.  Sounds like a baby step to me, but at least it’s in the right direction..

Change state environmental law to obviate redundant review of projects.  “The Roundtable recommended that the city take advantage of opportunities to streamline and combine SEPA review with other aspects of regulatory review for proposed residential and mixed-use projects in designated growth centers, such as urban centers and light rail station areas.”  This one may be controversial with some of my environmental colleagues and partners, but the angel can be in the details – if, for example, the impacts of area plans have been reviewed, review of the same issues may not need to be repeated for projects that conform to those plans, especially in places where we have determined that growth should occur and where mitigation is built into the project.  I don’t pretend to know the specifics of applicable city and state law in Seattle and how the recommendations would modify it, but I do think some degree of relaxation can be appropriate in designated growth centers, when the proposed project conforms to the desired types of growth as articulated in earlier legal documents.

As noted earlier in the post, these are hardly radical proposals.  As my title suggests, they represent “beginning” steps.  The real stunner is that our laws have become so contorted and restrictive that they are needed.  The roundtable has done the citizens of Seattle a service by undertaking their study and making the recommendations, and Chuck as done us all a favor by spreading the word.

Note: Hover over photos for image credits.

Editorial Note: For more information about what’s going on in Seattle, see:

Seattle Starts Making Sustainability Legal
Seattle Government Regulatory Reform

This post originally appeared in The Switchboard on July 27, 2011. Reprinted with permission of the author.

Topics: Public Policy, Sustainability

9 Responses to “A Beginning Agenda for Making Smart Growth Legal by Kaid Benfield”

  1. Danny says:

    What a sad proposal.

    The best parts of downtown Annapolis could, at best, be cheaply imitated by these modifications of the regulations. This is because the historic characters found in the central downtowns like Boston, Annapolis, Pittsburgh, Philly, and New York were a result of no regulation.

    Corner stores happened because the owners of corner lots knew they could make more money selling goods than they could renting out the apartments. Street level commercial real estate happened because shop owners were willing to pay more rent to have a street level shop. Good transit service happened because smart people knew that there was a ton of money to be made carrying people around. Parking was scarce because it was expensive.

    But even in those days, you didn’t find a shop on every street corner. Sometimes you found a pub, a tailor, a book store, a butcher, or a legal office. You didn’t have a commercial store on every street level, because sometimes you had residential entrances, offices, or factories.

    Selectively “unbanning” some of the things that are currently banned will not give us a dynamic neighborhood like those that we clamor for. It will give us a poorly utilized sterile imitation. It won’t account for the myriad opportunities subsequent responses that a free market brings.

    The only reason why zoning exists is because of negative externalities. It was too hard to regulate/tax negative externalities, so they just banned anything and everything that caused them. Unfortunately, some things have both negative AND positive externalities…but they were all swept under the rug. That includes many of the things that are now considered “Smart Growth”…mixed uses, high densities, minimal parking, etc.

    What we have today is the result of continuing to regulate uses rather than impacts. When a chemical factory pollutes its nearby, it gives all factories a bad name, and the result is that no factories exist where people live…even the ones that don’t pollute. A loud corner pub keeps granny awake too often, and all of them are banned…even the ones that aren’t loud.

    Sorry, but the dynamic city streets like those exemplified in Jane Jacob’s writings were the result of near anarchic conditions. They won’t magically reappear by lifting up a few zoning laws. They will reappear when we get rid of zoning completely. Until then, you will get megadevelopments from billionaire developers that are no more convincing than the nature-immitation waterfalls found in suburban backyard swimming pools. If you want to stop the negative externalities, then attack the externalities…not the uses.

  2. I find an observation from Dr. Charles Friel of Sam Houston State University to be true for most any human endeavor. It goes along the line the technological issues are not ultimate barriers to moving forward, it is the political issues which hinder progress.

  3. Steve Walter says:

    It really goes in line of technological issues. Nice opinion Jeff, I agree with your ideas. Politics is the problem around the world.

  4. Chuck Wolfe says:

    As the author of the article which underlies Kaid’s article and Aaron’s introduction, Jeff raises an interesting point, which we are finding to be at the heart of our endeavor.

  5. Alon Levy says:

    Okay, I’m now confused about whether the above comments are spam or not. Sigh. Sorry in advance if I tagged any human as a spammer.

  6. I think he’s real, but just links to his personal business, whose services none of us will hopefully ever require….

  7. Chuck Wolfe says:

    Whether he is real or not, politics plays a big role, even in response to the incremental changes proposed in the effort.

    Here is a link you can follow by the way…I’ve given Aaron a summary of a bit of this by email. The legislation reflecting the changes discussed will be taken up by our City Council by early 2012 while our Roundtable continues work on other matters:


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