Controversy has brewed ever since the landmark 1926 U.S. Supreme Court decision of Village of Euclid, Ohio v. Ambler Realty Co., which established the separation of land uses among other restrictions to manage nuisances and protect the public welfare. The resulting "Euclidian" form of zoning has long since been accepted as the standard for regulating development nationwide. However it is an inadequate tool for dealing with today's seemingly endless growth management conflicts. The time has passed for strictly promoting the segregation of residential, office, retail, civic and other land uses separated by pedestrian unfriendly roadways and poorly designed open space buffers. This degrades social interaction, quality of life and the natural environment. Developers should be allowed (even encouraged) to create compact, walkable and diverse mixed-use communities. Residents can both enhance the residents' quality of life and the builder's bottom line.

Ultimately, the development of new and politically autonomous towns supported democracy in our country, and I think that small towns actually help protect democracy and republican institutions. They serve an analogous function to the polis of ancient Greece. They enfranchise a community, and give them a sense of community, civic pride and some level of public participation. Living in a small town with its own civic intuitions is an exercise in democratic governance, and by its nature it can encourage civic participation. A town like Lewes, New Castle or Delaware City are outstanding examples of that phenomena.

New Castle County has the opportunity to create unincorporated "small towns" by revising the UDC. The "hometown overlay" ordinance is a good first step. Unfortunately, towns can be inefficient when planning comprehensively on a regional basis. Some town governments had previously operated myopically; looking for the "quick hit" of income from developers by allowing suburban sprawl in the villages. Unfortunately, the State of Delaware had previously not exercised its potential political muscle to assure consistency with its Land Use Planning Act and State Comprehensive Plan. The political will has existed in the Minner Administration, but it lacked (and still may lack) requisite support from a majority of the State Legislature.

As I stated above, developers should be allowed (even encouraged) to create compact, walkable and diverse mixed-use communities. Residents can both enhance the residents' quality of life and the builder's bottom line. By communicating this message to both developers, citizens and state and county legislators, we can build a consensus to facilitate planned development, smart growth, "Livable Delaware", or whatever name one prefers.

By using the market, and offering the choice to live in a well planned community we are doing a great service to our fellow citizens.

New Castle County and other progressive smart growth counties have begun to implement elements of form-based zoning codes. Other counties have actually switched to pure form- based zoning codes. Pure form-based codes can do away with land-use and density categories, discretionary review headaches, reams of red tape and possibly, zoning itself. Arlington County, in northern Virginia, joined a small group of local governments that have adopted this new type of community design planning tool: the form-based code.

Elements of form based codes appear in the UDC in the form of the design guidelines in the Hometown Overlay Ordinance. The attempts over the past few decades to make zoning codes "smarter" with regulatory tools and tweaks have just complicated matters. These tools and tweaks include conditional use permits, overlay districts, planned unit developments, design guidelines, performance zoning, variances and tax/density bonuses. In contrast, form-based codes are revolutionary. They seek to replace the entire system by streamlining ordinances and shifting away from land use and density as primary regulating factors.

The problem with the Hometown Overlay Ordinance and the UDC itself is that it lacks flexibility to respond to the normal economic need to constantly change the uses of particular structures in a village without going through the highly regulated/protracted/expensive/prohibitive re-subdivision code approval process. In a "real village", a home can become a store front which can then become an office and then a home again with a minimum of regulatory oversight. Torti Gallas pointed out that the New Castle County UDC's insistence on "front-end loading" the subdivision plan at the time of the rezoning creates an undesirable institutional impediment to creating a vibrant "tnd" (traditional neighborhood design) village. Thus developers are reluctant to build tnd's in our village/hamlet zoning categories. (That front end loading was a direct result of the Brandywine Town Center rezoning and I supported the process of front-end loading the subdivision process in 1997. However, I have learned much since that time and its time for a change.)

At a minimum, we need to create trust with the community, secured by community design guidelines, which will then allow flexibility in future modified uses within the boundaries of the hometown overlay, or village/hamlet, accompanied by greater densities.

However, we should also take advantage of this opportunity when we are updating the County Comprehensive Code to explore implementing other Smart Code modern reforms, which are "form-based". I refer you to the Duany Plare-Zyberk & Company which has released its Smart Code to the public domain for conditional use. It can be downloaded for free at www.dpz.com. For more information, I also refer you to www.placemakers.com/info/smartcode.html

Form-based codes reinforce the notion that a picture is worth a thousand words by putting most of the plan's key dictates into diagrams. Ordinances can be just a few pages for development that would need dozens of pages in conventional zoning documents.

There are only a handful of components in a form-based ordinance:

(1) Regulating Plan: Maps what goes where--every street, block and building type, or mix of types; defines property lines, required building lines (similar to setbacks), and public spaces--in more detail than conventional zoning maps.

(2) Building form standards: Establishes four parameters in cross-sectional drawings, typically on one sheet for each building type: I) HEIGHT: Maximum number if floors; also minimum needed for a proper street wall; II) SITING: Placement of structures in relation to streets and adjoining lots: front, side and rear building limits: and specs for entrances, parking and yards; III) ELEMENTS: Dimensions for windows, doors, porches, balconies, stoops on so on; IV) USES: Configuration of specific uses within each building type. Note: Use is not ignored, but dealt with at this secondary level.

(3) Thoroughfare standards: Included if streets are not individually designed. Diagrams can define dimensions from travel and parking lanes through sidewalks, medians and planting strips.

(4) Landscape standards: Lists accepted tree and groundcover species and location details.

(5) Definitions: The glossary helps clarify specific terms.

(6) Architectural standards: Optional based on community and developer desire for regulatory controls. May dictate materials and finishes, colors or other controls.

Conventional zoning is proscriptive: it defines what is prohibited rather than what is desired. But by focusing on what builders can't build, it does not predict the appearance of what can or will be built--and invites conflict.

In contrast, form-based codes are prescriptive: they define building types , streets and the public realm down to the block level, whereas conventional zoning stops at the subdivision level and therefore cannot cope with the details of mixed-use, varied thoroughfares and so many other factors.

By releasing conventional restrictions on land use and density, many community developers and builders may find greater flexibility to create plans with higher density. Additionally, they may find it easier to "sell" such plans to communities because their easy-to-grasp graphics present better than words and numbers. The best example of this community "buy-in" can be seen in the overwhelming support for Torti Gallas' concept dense village plan for Brookview II in Claymont.

Form-based codes are better suited to address growth issues such as housing affordability, transit-oriented development, pedestrian-friendly communities, open space preservation---in general, smart growth issues.

Appreciation, attribution and assistance for this essay came from:
Brian Page, Sussex County, DE
"Professional Builder" September 2005 issue, Bob Spencer, Senior Editor
Duany Plater-Zyberk & Company website
Urban Land Institute
American Planning Association
National Association of Counties
Torti Gallas and Company

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