Adventures in Zoning, Part I

Why do our towns and cities look the way they do? In a word, zoning.

An Essay by AJ Loftin

This article was published in the CHALT newsletter, November 2014

Before automobiles ran the country, planners used the concept of an “invisible box” to specify the size, shape, and number of buildings that could appear on a given piece of land. When planners refer to “Euclidean” zoning, they’re not talking about the father of geometry, they’re alluding to the landmark 1926 Supreme Court case, Village of Euclid v. Ambler Realty, that upheld the wisdom of literally thinking inside the box.

After the Second World War, car ownership began to dictate development, and towns and cities responded with zoning innovations such as Planned Unit Developments (PUDs). PUDs made it legal for developers to negotiate how and where they built, although local governments could require improvements, like better design, more public amenities, and open space. A related change, performance zoning, gave developers more leeway in exchange for mitigating adverse effects (noise, odor, traffic, glare) on neighboring communities. As a result, towns had to hire planners to measure impacts, and buy and maintain equipment to ensure compliance.

By the turn of the 21th century, it became obvious that none of these zoning regulations had protected Americans from soul-destroying sprawl. Enter form-based code (FBC) zoning, a movement spearheaded by architects and urban designers hoping to breathe life back into our towns. The idea was to encourage more pedestrian-friendly places, aesthetically compatible with their surroundings. Many towns and cities have embraced form-based codes in recent decades, aiming to humanize growth and make it more predictable. But like any tool, FBCs can be badly made or badly used. And in the case of Chapel Hill’s new code, many residents now worry that we’re in for a bit of both.

Historically, Chapel Hill controlled the deleterious effects of urban development by wielding the power of the Special Use Permit (SUP), an offshoot of Planned Unit zoning. If you want to know why Chapel Hill doesn’t look like the strip of 15-501 just across the border in Durham, it’s because this permit process required developers to meet standards for the health, safety and welfare of nearby residents. Chapel Hill’s land use management ordinance (LUMO) attempted to preserve the small-town character of our “Southern Part of Heaven.”

Of course, not everyone enjoyed the permit negotiations. Developers complained that it wasn’t worth bringing their best ideas to the table, only to have them picked apart brick by brick. The Mayor and eight-person Town Council often found meeting nights consumed by the minutiae of signage and setbacks. Town staff complained they couldn’t give clear directives to prospective commercial taxpayers. And some community members grew weary of waging war each time a developer threatened to engulf more nerarby green space.

A few years ago, with frustration mounting on all sides, Town Council members decided to create a comprehensive planning document that would also guide them in updating the LUMO.

The council initially hired a consultant to manage the community outreach effort; town staff stepped in after the consultant took another job. Hundreds of citizens came to kickoff meetings for the participatory exercise billed as Chapel Hill 2020: Our Town, Our Vision, but far fewer managed to stick with the befuddling, time-eating process. Many people later found their viewpoints buried deep in the last chapter of a separate report. Likewise, citizen volunteers who served on committees to establish goals and action items later observed that town staff never took their action items back to the council for action.

Vision document in hand, the town put out a bid for more consultants. This time the goal was to create “small area plans” and accompanying form-based codes to shape redevelopment in six “focus areas” identified by Chapel Hill 2020. The Atlanta-based firm Urban Collage (now Lord Aeck Sargent) won the bid to create a planning document for the Ephesus/Fordham focus area. Urban Collage’s initial assignment was to find ways to improve the Ram’s Plaza shopping center and its immediate environs. But Dwight Bassett, the town’s Economic Development Director, soon steered Urban Collage toward a much larger canvas, 190 acres, encompassing Village Plaza mall, Eastgate shopping center, and the wetlands area around Booker Creek from East Franklin Street to Fordham Boulevard. This one- and two-story commercial district, mostly built during the 1960s and 1970s, also includes modest apartment complexes, some earmarked for low-income residents; and single-family houses. A good portion of it lies in the federally designated flood plain. (Eastgate shopping center, for example, built atop a section of Booker Creek, lies almost entirely within the floodplain.)

Urban Collage eventually produced a small area plan that reflected both town goals and community input. It recommended three-to-five story redevelopment in the center of the commercial areas, and one-to-three story buildings along the fringes. The plan called for building new street networks to control traffic. And it proposed turning the floodplain area, partly covered in buildings and asphalt, into nine acres of public green space, even illustrating how this “key central organizing point” “could be used as a plaza/amphitheater for large gatherings.” Town Council approved the plan in 2011.

In 2013 the town hired Lee Einsweiler, a founding partner of Code Studio in Austin, Texas, to write a form-based code for this district. (The town also hired Einsweiler to develop a plan for the Central West focus area, but he was dropped from that process.) Einsweiler produced a code that departed radically from the small area plan approved by the Town Council. It called for a central commercial district of seven-story, mixed use buildings. The six-to-nine-acre park was gone, and so was any mention of the need for storm water management in a district that often floods.

Surprised and angry, overflow crowds flocked to Town Council meetings. They gave cogent Powerpoint presentations. They submitted a 900-name petition asking the council to address concerns about height, storm water, and cost to taxpayers. Yet after several months of contentious meetings, the Town Council voted, 6-3, to adopt a zoning tool that envisions a very different kind of future for this college town.

Chapel Hill residents have already gotten a glimpse of it: East 54, the massive “mixed use” development built by Roger Perry’s firm, East West Partners. If all goes according to plan, Perry’s company will soon build a 266-unit luxury high-rise apartment building, 90 feet or seven stories tall, on a currently vacant parcel in the Village Plaza shopping center on South Elliott Road, between Whole Foods and ABC Liquors. The ground floor of the building will include some retail space, but the project as a whole will be 95 percent residential. Public space will be limited to the strip of pre-existing town greenway behind the new complex, scarcely buffered from loading docks for trash and moving vans, or from the parking garage entrance to the building. As dissenting council members said, another opportunity to make something lovely and green had been squandered.

In a recent phone interview, Lee Einsweiler blamed the original area plan for flaws in the code. “Is the community unhappy with the result? Yes, and frankly they aren’t buying in to [the plans for] Central West, either.” But “all we did was translate the plan into a code,” said Einsweiler. “The fatal flaw [was] the gap between the community’s sense of what the plan should be, and how the plan played out…the plan stopped short of being good policy support.” Asked about the seven-story height allowance in the code, Einsweiler said: “The plan didn’t have enough about height.”

Soon after the code was approved, town manager Roger Stancil recommended to the Town Council that the town pay for the private access roads to Roger Perry’s Village Plaza apartment complex. Council members Jim Ward and Matt Czajkowski, who along with Ed Harrison had voted against the code, questioned this expense. Developer Roger Perry memorably blamed “that small group of people make noise about everything” (Chapel Hill News, July 18, 2014) for obstructing progress.

Grudgingly, Perry agreed to pay for the roads.

Look for Part Two in the next issue: Better Living through Better Zoning? The Challenge for Chapel Hill.

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