Key to the City, page 16
There are clear historical justifications for doing this. Zoning’s founding fathers (they were virtually all men) almost certainly conceived of zoning as a means of improving the quality and function of our streets, as evidenced by the Standard State Zoning Enabling Act of 1926, the model act that ignited zoning’s proliferation nationally. The act articulated the specific aims of “lessen[ing] congestion in the streets” and “facilitat[ing] the adequate provision of transportation” among them. Twenty-seven states still maintain the exact phrase “to lessen congestion in the streets” in state law, while others over the years have substituted different language meaning the same thing. So why do most local governments decline to regulate streets through zoning?
One reason may be the longstanding practice of exempting public land from zoning, a practice derived from long-ago judicial decisions that held that government officials and decisions should be “immune” from certain types of regulation. These decisions extended exemptions to all kinds of properties owned by local governments, including schools, libraries, fire and police stations, offices, parks, and community centers, and, by extension, streets. State and federal governments—which own the same types of resources, in addition to highways, post offices, intercity roads, military bases, and other larger-scale infrastructure—have also historically enjoyed immunity.
Modern judicial decisions take a different approach. When a Boston homeowner sued the city’s zoning commission for approving a federal post office right next to her home, the court dismissed her lawsuit after the U.S. Postal Service submitted a copy of a land contract asserting immunity from state and local zoning laws. When reviewing a suit challenging local authority to zone public land, a court looks at a range of factors, including whether a federal or state law specifically exempts public owners or the particular use from zoning, and whether a public entity is acting in a governmental capacity. In the absence of such a law, the court will consider other evidence to determine whether the federal or state government intended to exempt such uses from local zoning. Where courts can identify some stated or implied intent to exempt a public use, they will find that local zoning has been preempted. Few judicial decisions these days focus specifically on streets, but a 2018 decision from the New Jersey supreme court found a state university immune from zoning in the town of Passaic, ruling that the university acted within its governmental authority to further its educational mission when it planned to modify its campus streets to manage traffic concerns.
The New Jersey case speaks to the continuing ability of the state and state-government entities to circumvent the application of zoning, but most roads within incorporated areas are local roads, owned and maintained by local governments. When it comes to locally owned public lands, cities and towns have plenty of leeway to govern their own activities. The fact that the officials doing the zoning are themselves part of local government helps, placing them on the same level with public-works departments, fire officials, park and library heads, and school boards. Accordingly, many local governments have swept municipal lands into zoning, either by expressly writing them into zoning codes or by applying ownership-neutral rules to projects. Except, that is, for streets. Despite the fact that most roads within incorporated areas are local roads, owned and maintained by local governments, cities around the country have enacted rules that exempt streets from zoning’s purview. Denver, for example, limits zoning’s scope to “zone lots,” which are constrained by private property lines, and which do not include the public portions of streets. Even in its “campus” zone, which allows a single zone lot to have multiple buildings and to cross streets, streets remain unregulated.
This approach is misguided. Beyond any legal technicalities, there’s a simple but important substantive justification for zoning to extend to the entire cross-section of the street, from one building to the opposite building. That is the simple fact that our streets are, for the most part, dangerous and dismal.
Despite the guidance provided by hundreds of complete-streets policies that have been adopted across the country, most American roads continue to give cars and their drivers priority. This priority has not happened by chance. Rather, it is embedded in two technical manuals governing road design with far-reaching consequences: the Association of State Highway and Transportation Officials’ A Policy on Geometric Design of Highways and Streets (known as the “Green Book”) and the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (the “MUTCD”). Both are written and regularly updated, without wide engagement or public debate, by exclusive professional associations dominated by traffic engineers. Together they govern every aspect of the roadways you use every day: lane width, median design, intersections, crosswalks, and signage. Beyond physical design rules, the MUTCD also establishes a process for setting speed limits.
The manuals share one overarching priority: to facilitate the smooth movement of cars. To that end, both the Green Book and the MUTCD measure a road’s success exclusively by its “level of service”: the extent to which cars may travel freely without having to slow down or queue. Another reflection of this priority, primarily enshrined in the Green Book, are requirements for overly wide lanes, which in turn promote speeding. And then there’s the MUTCD’s speed limit protocol, which allows speed limits to be raised to the 85th percentile speed of traffic, even if drivers are exceeding the existing speed limit. In other words, it’s a speed limit set by those who are breaking the speed limit.
These two manuals directly conflict with complete-streets principles. In prioritizing the speed of cars, they raise both the incidence and the impact of crashes, making our streets more deadly. They support the ever-increasing expansion of pavement, which environmental journalist Ben Goldfarb has argued disrupts animal habitat and contributes to a negative, global shift in ecological conditions. The manuals are also wholly insensitive to neighborhood context and make no accommodations for different zoning or different uses. Neither manual offers a vision for streets that complement the buildings that line them, or how a street’s cross-section might be arranged to balance utility and beauty.
Yet they continue to dominate road design. Local engineers who control the public portions of streets rely on these manuals and apply them rigidly, with little or no consideration given to the specific context of a particular setting. Institutional inertia plays a role: people tend to do what is easiest and most familiar, and a busy city official simply does not have time to rewrite a road-design manual. In an ironic twist, the legal doctrine of immunity also contributes to the persistence of these misguided guidebooks. State legislatures and courts have generally granted immunity to governments who use the Green Book and the MUTCD from litigants claiming an injury resulting from inadequate road design, reasoning that the ubiquity of these manuals, and their wide acceptance as industry standard, pardons local governments who build manual-compliant roads. For instance, a Georgia statute says the state is not liable for losses resulting from road design “where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards.” Citing this statute, the Georgia court of appeals partly dismissed a lawsuit by the widow of a man who died in a fatal car crash on a state route, convinced by the state department of transportation’s expert witness, who asserted that the state route was designed to comply with sight distance principles of the Green Book. In that court, the anonymous engineer-authors of the Green Book all but wrote the legal decision.
__________
The Green Book and the MUTCD aren’t the only guides upon which cities can rely when designing better streets. The most well-known alternative manual is the National Association of City Transportation Officials’ Urban Street Design Guide. Reflecting complete-streets principles and rejecting the underlying pro-car ideology of the Green Book and MUTCD, the guide shows how existing streets can be retrofitted to promote the kind of multimodal use we saw implemented in Burlington’s new code—and shows how new streets should get it right from the start.
Bowles Park, a 61-acre parcel in Hartford’s North End, saw Hartford’s first streets designed with NACTO principles in mind to serve all users. The site had long been occupied by decrepit apartment buildings operated by the local housing authority. In 2016, the housing authority solicited proposals for redevelopment, awarding the project to a team that proposed replacing the existing buildings with a mix of ownership and rental homes, and replacing the wide, meandering streets with an entirely new street grid. I was nervous and proud to chair the commission when it reviewed and approved a master plan for the whole project, including the particular aspects of its street design. The first phase resulted in a series of small two- to four-unit buildings resembling single-family homes, set along “neighborhood streets.” Built from scratch, the streets have a generous buffer area with trees every ten feet, ample sidewalks, bike lanes, and on-street parking tucked between bulb-outs (curb extensions). The streets complement the new homes, each unique in architectural design while sharing similarly sized front yards, as well as porches. The first 135 units have been completed, nearly all reserved for low-income households; the second and third phases are well underway. The new neighborhood is lovely in a welcoming way that reflects a comfortable and coherent sense of place—that feeling one gets when the pieces of an environment just somehow fit together. Hartford residents who recall its prior dismal condition can marvel at what’s there now.
The success of that project owes perhaps to the bold step of our commission taking for granted that we had the power to influence the entire building-to-building cross-section. Thus, during our 2016 code overhaul we included a street-design chapter in the zoning code itself. We took a hard look at Hartford’s existing streets: relatively narrow streets in some neighborhoods, wide one-way streets downtown (like Burlington’s), and a few grand boulevards. We also heard from residents and business owners about the kinds of qualities a great street should have. Shop owners told us that they needed street parking, but that they also needed wider sidewalks with more trees. Residents told us that some residential streets were too wide, causing people to speed. We attended seminars on the design of the public realm, which revealed that pleasant streets that were comfortable for pedestrians helped to reduce crime—especially when they were lined with trees, slowed cars, and had appropriately scaled lighting.
Based on their feedback, the street-design chapter of the Hartford code delineates basic parameters for a modest menu of five ideal street types. Neighborhood streets, with two unmarked lanes of eight or nine feet wide, a landscape buffer of at least eight feet, and a sidewalk of at least five feet, serve areas with rowhouses and single-family housing. Residential connectors, with two marked lanes ten or eleven feet wide and a landscape buffer of at least two feet plus sidewalks, function as neighborhood main streets and serve residential areas with minimal businesses. Commercial connectors, with more businesses and connecting neighborhoods across town, must be equipped with bike lanes, landscape buffers of at least three feet and sidewalks of at least six feet, and may include parking lanes. Avenues, which resemble commercial connectors but serve denser areas, can have a center turning lane and greater overall width. Finally, faster-moving boulevards have up to two lanes in each direction, each eleven or twelve feet wide, with pedestrian protections like sidewalk bulb-outs to reduce the width of intersections. For each of these street types, we identified appropriate building types and established overall standards for trees and street furniture. After setting out these particulars, we included a catchall reference to the NACTO guide, saying it governed anything the zoning code does not address.
Certainly, creating new streets as the developers did in Bowles Park is easier than retrofitting existing streets. But the same principles apply when streets are reworked. Extending zoning’s reach to publicly owned portions of streets can improve the way all the pieces fit together. It can help communities manage everything from street furniture upgrades on a single block to enormous redevelopments covering many areas.
__________
Chicago’s Theaster Gates characterized his vision for Stony Island Avenue, the big and busy thoroughfare, nine lanes wide, just outside the front door of his community arts center, as “a beautiful green belt” in the French tradition, connecting handsome buildings designed for South Side residents, who deserve beautiful things. It’s easy to imagine what that would look and feel like. A well-designed street is invigorating. It’s fun. And it’s for everyone. Streets set the stage of our experience, wherever we are—and whether in Burlington or Hartford, San Francisco or Chicago, we should push zoning to do more to set those stages. This kind of boundary-pushing has strong legal grounding and gives us a new way of delivering streets that fix the failures of the past. Streets, so foundational to our places, have for too long been ignored by zoning, but it’s time for zoners to pay attention.
10
A Curatorial Approach
Last winter, my family and I found ourselves in the heart of Delray Beach, at one point named the “Most Fun Small Town” in the United States. Occupying two miles of the east Florida coastline, the town of 67,000 people boasts a vibrant mix of restaurants, shops, and cultural activities and has a laid-back, artsy reputation. But it doesn’t take a laissez-faire attitude to development. Fun, in its case, is carefully crafted, with architecture to match, thanks to a zoning code that sets forth the physical parameters for future growth.
Our stroll that day showed the results. After a dip in the Atlantic Ocean, we dried off, threw on clothes over our swimsuits, and walked westward on East Atlantic Avenue into town, crossing the barrier island protecting the Intracoastal Waterway, which the federal government created a century ago to provide an inland alternative to the high seas for coastline travel. With two vehicular lanes lined with sidewalks and palm trees, the avenue is the town’s biggest draw. Boutiques and bistros sit alongside hotels and offices, in buildings between one and three stories tall. Together, these buildings create a continuous “wall” at the edge of the sidewalks. White predominates in the palette, while beachy yellows, pinks, and blues offer upbeat accents. Overhangs and awnings over the ground level alternate with arcades, shielding pedestrians from the sun. Every few buildings, wood Bermuda shutters protrude at a 45-degree angle, adding visual interest—while standing ready to cover windows during a tropical storm or hurricane. Short blocks typify the avenue, which mixes narrow storefronts with block-long buildings. Only one strip mall, Atlantic Plaza, mars the pedestrian experience, with about fifty parking spaces separating the sidewalk from shops and restaurants. Otherwise, most cars generally hide on side streets behind the avenue. The relative absence of the parked cars that clog so many American downtowns is just one of the features that make Delray so friendly and attractive, though for the Bronin family, the fact that we came upon five different ice-cream shops also ranks high.
While Delray Beach originally developed organically, the town has deployed its zoning code to ensure the same type of development continues in the future. This is a case where zoning doesn’t have to correct so much as maintain. In 2015, the town adopted an ordinance that aims to preserve the scale of East Atlantic Avenue and the surrounding blocks, while encouraging pedestrian-friendly, mixed-use development. It’s a form-based code, focused on architectural standards as much as on uses, in the same vein as such codes adopted in Nashville, Hartford, and Burlington, and seven hundred other American cities. Delray Beach likely drew inspiration from neighboring West Palm Beach, which adopted its form-based code in 1995, and from Seaside, in the Florida Panhandle, where the first American form-based code was written in 1982 by the founders of the “New Urbanism” planning movement. Nostalgic for the “traditional” neighborhoods of a century and more ago, New Urbanists love porches, pitched roofs, sidewalks, a set menu of building types and a mix of uses happening within them.
Along the avenue, the code permits every use that might reasonably fill out a downtown, including homes, shops, hotels, and offices. This inclusive use mix helps ensure both a diversity of businesses and a round-the-clock base of customers. The code goes further to ensure variety when it comes to housing. New apartment buildings with more than twelve units must have a “diverse unit” mix of studios, one-bedrooms, and apartments with two or more bedrooms. This mixing requirement counters the tendency of developers to overbuild studios and one-bedrooms, which provide a greater return on investment than larger units. While smaller units tend to attract single professionals and older individuals, larger units with more bedrooms allow larger households with families in them—and families typically require more amenities and services, another boost to area businesses. Again, a seemingly minor zoning requirement—in this case, for bigger apartments—can unloose cascading benefits.
Being a form-based code, it also outlines requirements for aesthetics. The town imposes height caps of about three stories along East Atlantic Avenue, with four stories allowed off the avenue. The more generous height caps for the surrounding blocks enable, but do not dictate, dense development. For a town wishing to incrementally increase its density, these caps make sense—and they do not hinder creativity, as architectural features such as spires, steeples, and cupolas may reach sixty-four feet, opening the door to inventive details. Delray Beach also imposes a height minimum of eighteen feet across the entire district, with a minimum of twelve-foot ground stories for shops. Like some other zoning code provisions, minimum height standards can increase a developer’s initial costs. But a cohesive approach to the commercial spaces can also add value to the properties themselves, creating a more attractive shopping environment and boosting sales.
