1

Is Euclidean Zoning the New “Pig in the Parlor?”:

The Coming of Age of Form-Based Zoning Codes.

Damon B. Orobona*

There is no doubt whatever about the influence of architecture and structure upon human
character and action. We make our buildings and afterwards they make us. –
Winston Churchill

I. INTRODUCTION

IF YOU LIVE IN OR AROUND A MAJOR CITY, chances are it has happened to you:
Stuck in your car, waiting in traffic, wasting hours of your day just trying to go from one
place to the next. Americans from across the country are experiencing these frustrations
every day of the week. Atlanta, Los Angeles, Phoenix, Washington; many of our
country’s key cities are dealing with the problem of suburban or exurban sprawl. The
root of this problem may have a direct link to Euclidian zoning, the principal form of
zoning in the United States for the past 90 years. In response, an increasing number of
local governments across the United States are adopting ordinances reflecting principles
of smart growth and the new urbanism planning movement as a solution to the physical
conditions and social ills created by Euclidean zoning. These ordinances are commonly
referred to as form-based zoning codes because of the emphasis on the form or shape of a
building as opposed to its use (i.e. the regulation of the building’s height, placement on
the lot, and orientation to the street as opposed to regulating whether the building is
residential, commercial, or industrial). This article will examine the historical context of
Euclidean zoning, the initial success that Euclidean zoning briefly enjoyed, and its
current deficiencies in supporting today’s built environment. Next, the article will
examine the efforts of innovative local governments to alleviate sprawl by replacing
existing Euclidean zoning codes with form-based zoning codes and the legal
impediments that arise during the process of transfiguration.

II. A BRIEF HISTORICAL SUMMARY OF LAND USE PLANNING IN THE UNITED STATES

At the turn of the past century, the United States was in the midst of an industrial
revolution that would forever change the face of the country and help make the United
States a financial leader on the global scale. Due to rapidly advancing technology,
Americans migrated into cities in hopes of gaining employment in the manufacturing
*
J.D., 2006, St. Thomas University School of Law; Urban Planning Professional Certification, 2005,
Harvard University Graduate School of Design. I would like to thank Professors Sandra Ruffin from St.
Thomas Law and Juan Carlos Vargas-Moreno from Harvard Design for their guidance and support while
serving as advisors to this article.
 2

plants seemingly emerging on every city block. City officials were not prepared to deal
with such a large influx of people. Migrant plant workers joined together to live in
affordable arrangements, which usually meant in temporary housing structures adjacent
to manufacturing plants. This resulted in residential complexes and heavy industrial
buildings being located side by side. The mix made for extremely dangerous and
unsanitary living conditions.1 As a result, diseases spread quickly and affected the city
dweller’s quality of life.2 Until 1916, the built environment was largely unplanned,
controlled only by ad hoc nuisance cases that formed a piecemeal land use regulation
system.3 Nuisance law did not prevent a nuisance from arising; it only provided a
remedy or injunction for one neighbor against another after a harm had already occurred.
A new, more powerful system of land use control was needed that went beyond the
limited powers of nuisance law.

A. New York City Zoning Ordinance of 1916

New York City was one of the more populated cities during the industrialism of
the United States.4 Because of the high price of real estate in the city, developers were
forced to build upwards, resulting in massive skyscrapers that spanned entire city blocks.5
Residential neighbors of these monoliths complained that their living space was being cut
off from light and air.6 In addition to problems with building height and bulk, industrial
garment producers were opening up next to expensive Fifth Avenue retail shops,
intermingling wealthy patrons and immigrant workers in the same immediate vicinity.
Fifth Avenue shop owners did not believe that the integration was good for business and
petitioned for a change.7 In response, New York City was the first city to devise a
comprehensive zoning program8 to help regulate congested city life. Enacted in 1916,

1
Lewis Mumford observed, “Industrialism, the main creative work of the 19th century, produced the most
degraded human environment the world had yet seen.” Lewis Mumford, The City in History: Its Origins,
Its Transformations, and Its Prospects 433 (1961).
2
The Yellow Fever Epidemic of 1878 killed almost twenty percent of the Memphis, Tennessee population.
This tragedy sparked congress to create the National Board of Health, which conducted a study regarding
Memphis’s structural conditions. The Board issued a lengthy report that recommended the construction of
new sewerage systems, destruction of all substandard buildings, ventilation of all city houses, and a
sanitary public water supply system. This report is regarded as the first national effort to deal with urban
problems. David L. Callies, Robert H. Freilich, Thomas E. Roberts, Cases and Materials on Land Use 18
(2004).
3
This system was very inefficient. Since courts did not want to discourage the industrial development that
was making America a world leader, only highly objectionable uses were considered to be a nuisance.
Jesse Dukeminier, James E. Krier, Property 951 (2002).
4
See generally, Stanislaw J. Makielski, Politics of Zoning: New York 1916-1960 (1966).
5
Id.
6
Id.
7
Id.
8
The theory of zoning as a land use technique can be traced back to Ebenezer Howard. In 1898, the
Englishman published a book called Tomorrow: A Peaceful Path to Real Reform (renamed Garden Cities
of To-morrow in 1902). In it, Howard proposed a solution to London’s congestion: resettle people in new
towns in the country where they could lead healthy and useful lives. These new towns, called Garden
Cities, would be limited to 30,000 people. Uses of land would be separated, and each home would have a
garden to separate it from its neighbors. See generally, Ebenezer Howard, Garden Cities of To-Morrow
(2001).
 3

the ordinance classified land uses into several types and assigned them to different zones.
The ordinance also established restrictions on the height and bulk of buildings.9
Following New York’s lead, many cities followed with their own zoning code. By 1925,
368 municipalities had zoning ordinances.10

B. The Standard State Zoning Enabling Act of 1922

Seeing how zoning ordinances could help the safety and aesthetics of the city, the
federal government sought to create a model state enabling statute. In 1922, under the
direction of future president Herbert Hoover, the United States Department of Commerce
wrote the draft version of the Standard State Zoning Enabling Act (SZEA).11 The SZEA
empowered municipalities to regulate the density of the population and the location and
use of buildings and land.12 This was a federal attempt to assure the states13 that their
newly enacted zoning regulations would be upheld in a legal challenge.14
However, state courts were still uncertain of the constitutionality of zoning
regulations. While most state courts upheld challenges to zoning ordinances,15 some did
not.16 It was clear that everyone, from property owners to city planners to state court
judges, wanted direction from the United States Supreme Court on the constitutionality of
zoning.17 The Supreme Court finally answered the question of constitutionality in 1926.

C. The Village of Euclid Supreme Court Decision and the Definition of “Euclidean”
Zoning

The Village of Euclid is a suburban city of Cleveland, Ohio.18 In 1922, the city
enacted a comprehensive zoning plan that separated the entire fourteen square mile area
of the city into six different classes of use. The uses were divided into single-family
residential uses, multi-family residential uses, commercial building uses, and industrial

9
See supra note 3, at 958.
10
In the early 1920s over 22 million people lived in zoned municipalities, or forty percent of the urban
population of the United States. Id. at 959.
11
Standard State Zoning Enabling Act, Reprinted in Cases and Materials on Land Use at 33.
12
Id.
13
The police power resides in the states, which, at their discretion, delegate authority to their municipalities
to enact zoning legislation. Municipalities are the creatures of the state, and exist only by state action.
Hunter v. Pittsburgh 207 U.S. 161 (1907).
14
Interestingly, the SZEA was drafted by attorney Edward M. Bassett, who also designed the 1916 New
York City zoning ordinance. See Stuart Meck, “Model Planning and Zoning Enabling Legislation: A
Short History.” In Modernizing State Planning Statutes: The Growing Smart Working Papers, 1, 1-17
(1996).
15
See Lincoln Trust Co. v. Williams Building Corp., 128 N.E. 209 (N.Y. 1920), where the court upheld a
municipal regulation restricting the dimensions of buildings constructed on the land and held that it did not
constitute an encumbrance on the land.
16
See Goldman v. Crowther, 128 A. 50, 53 (Md. 1925), where Maryland rejected a zoning ordinance
observing that the ordinance “arrests that process of natural evolution and growth, and substitutes for it an
artificial and arbitrary plan of segregation.”
17
Even the federal district judge in Euclid was still uncertain as to the constitutionality of zoning as he
wrote his opinion. In the trial court opinion, Judge Westenhaver stated, “this case is obviously destined to
go higher.” Ambler Realty Co. v. Village of Euclid, 297 F. 307, 308 (N.D. Ohio 1924).
18
At the time of the decision, Euclid’s population was estimated to be between 5,000 and 10,000.
 4

and manufacturing building uses. The purpose of the city plan was to separate land uses
to keep offensive or dangerous industrial and manufacturing buildings away from
residential housing, and provide for a specifically designated area for future industrial
growth.19 There was evidence presented that the city of Euclid was located directly in the
path of industrial development spilling over from Cleveland, and, if unregulated, the
residential character of the area would likely be destroyed. The challenger of the zoning
ordinance was a real estate brokerage that owned a 68-acre tract of land in the Village of
Euclid. The 68-acre tract was sectioned off into different use categories according to the
city’s 1922 plan. Pursuant to the city plan, only 40 of the 68 acres fell into an industrial
use category. The challenger asserted that the 68-acre tract had been held for years solely
for the purpose of selling it for industrial development. The land was worth
approximately $10,000 per acre if considered industrial, but only $2,500 per acre if
considered multi-family residential. The challenger argued that the entire comprehensive
zoning plan should be held unconstitutional as it constituted an invasion of property
rights.20
The court disagreed with the landowner and sided with the city in ruling that
zoning was an effective method of nuisance control and a reasonable exercise of the
police power. The court reasoned that the exclusion of industrial buildings from
residential districts bears a rational relationship to the health, safety, and welfare of the
community because the risk of fire, pollution, and disorder primarily attach to the
location of industrial factories and other areas of high population density.21
The zoning scheme of the Village of Euclid is known today as “Euclidean”
zoning.22 In a Euclidean zoning scheme, use districts are generally classified from
highest to lowest. The highest use is regarded as a single-family residential land use, a
middle tier use would be commerce or agriculture, and the lowest use is reserved for the
grimmest types of industry (for example, a landfill or nuclear power plant).23 As declared
in Village of Euclid, a legitimate reason for a city to enact a Euclidean zoning scheme is
to separate the harmful effects of congestion, pollution, noise, and odor that commerce
and industry can bring to areas that people inhabit. Euclidean zoning has been held valid

19
And also to keep unwanted multi-family housing out of single-family neighborhoods. Apartment
buildings appear in the Euclid decision as a form of urban blight. Justice Sutherland, the conservative
justice writing for the majority, saw apartment housing as “a parasite” taking “advantage of open spaces
and attractive surroundings created by the residential [housing], bringing noise and traffic, depriving
children of a place to play, and finally destroying the character of the neighborhood.” Barlow Burke,
Understanding Zoning and Land Use Controls 80 (2002).
20
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, (1926).
21
Id. at 395. This opinion acted to keep necessary uses out of particular places. The famous dictum to
come out of this case proclaims, “A nuisance may be merely a right thing in the wrong place, like a pig in a
parlor instead of the barnyard.”
22
“Euclidean” Zoning is named after the town Village of Euclid. Many people mistakenly believe that
Euclidean zoning is named after the 4th century B.C. Greek mathematician Euclid, who is often referred to
as the father of geometry. Village of Euclid, however, was named after the famous mathematician. See
http://www.wikipedia.com, keyword:euclid.
23
The terms “higher” and “lower” land use do not refer to the financial value placed on the land.
Normally, land zoned commercial would be more valuable than land zoned residential, even though the
residential land would be considered the higher use. It can be argued, therefore, that Euclidean zoning
places a higher social status on land meant solely for single-family residential living and a lower status on
land meant solely for commerce or industry. Dukeminier, Property at 969 (2002).
 5

over the years as a constitutional way to protect the heath, safety, welfare, and morals of
city inhabitants.24

1. Euclidean Zoning’s Success in its Early Days

Zoning ordinances attempted to increase air and light in the city, reduce the
number of fatalities due to fire or transportation, and provide places outside the main
industrial and commercial centers for safe, wholesome single-family living.
These objectives were attained with great success in the years following the
Euclid decision. City health improved. The construction of oversized skyscrapers
subsided (for a while). Improved light and air circulated inside city centers. Children
were not directly inhaling factory smoke and pollution because they were living in further
removed residential neighborhoods.
The end of the Industrial Revolution came with the Great Depression. Due to the
Depression, a large portion of the American population was unemployed. 25 As a way to
create valuable employment, the federal government decided to build thousands of miles
of interstate roadway.26 Also, the Federal Housing Administration and the Veterans
Administration provided low-cost, tax-incentive mortgages, typically less expensive than
a monthly rental payment, in an attempt to encourage home ownership. The low-cost
mortgages were normally only available for new single-family detached houses. The
requirement of buying a new detached home was a strategic decision to create more jobs
in the construction industry.27 The construction of new homes along the path of the new
interstate highways was built following the widely successful Euclidean zoning scheme
and its separation of uses, which was credited with improving quality of life just years
before.
Around the same time, automobile use was becoming commonly accepted as the
primary mode of transportation.28 The new suburban resident had his own private,

24
See Id. at note 20.
25
Unemployment stood around 25 percent of the total work force in 1934, and the construction industry
was hit especially hard. Kenneth Jackson, Crabgrass Frontier: The Suburbanization of the United States
203 (1987).
26
The Federal-Aid Highway Act of 1956 provided for 41,000 miles of roadway (current version codified
at 23 U.S.C. § 139 (1982).
27
The decision to provide low-cost mortgages only to newly built, peripherally-placed single-family
homes, can also be argued as Roosevelt’s allegiance to the Thomas Jefferson ideal that every American
own his own estate on private grounds. Jefferson was an avowed decentralist, stating that “cities [are]
pestilential to the morals, the health, and the liberties of man” and “I think our governments will remain
virtuous for many centuries as long as they are chiefly agricultural.” When Jefferson was president, he also
encouraged the decentralization of cities in his own administrative action: the Louisiana Purchase. See
http://etext.virginia.edu/jefferson/quotations/.
28
75 percent of government expenditures for transportation in the post WWII era funded highways as
opposed to only one percent of government funding to urban area public transportation. See infra note 25
at 250. Also, it should be noted that the automobile industry heavily influenced the American dependence
on automobile use. A conglomerate of automobile, tire, and oil companies purchased and subsequently
destroyed over one hundred streetcar systems across the United States. James H. Kunstler, The Geography
of Nowhere: The Rise and Decline of America’s Man-Made Landscape 91-92 (1994). General Motors was
ultimately convicted of criminal conspiracy for this situation. United States v. National City Lines, Inc.,
334 U.S. 573 (1948).
 6

single-family home, separated from the congestion of commercial activity and the
pollution, noise, and danger of industrial life. The car was a novel, individualized way to
travel to work. The roadways were newly paved with little traffic. Living conditions
were greatly improved and life seemed to flow nicely.29 Euclidean zoning was the
framework that enabled and encouraged this new quality of life.

2. Euclidean Zoning’s Failure with Today’s Built Environment

After a few years of comfortable middle-class living on the suburban fringes of

major metropolitan cities, an unfortunate trend began to be noticed: the once thriving
inner cities were being neglected. Because so many city residents were moving into
newly constructed single-family homes on the suburban fringe, cities were becoming
undesirable, falling into deterioration and abandonment. The only city residents
remaining were predominately underprivileged families whom could not afford the
single-family home and car in the suburbs. Cities became homogeneous, consisting
mainly of racial minorities. This homogeneity was in direct contrast to a city’s traditional
characteristic of being ethnically and financially diverse.
Outside city limits, the once abundant countryside seemed to be rapidly
vanishing. Agricultural lands were being consumed at a feverous pace, serving as the
canvas on which the new suburban tract home was to be painted. Tract housing
speculators looked for cheaper land to build upon, which was usually located at the fringe
of current development. This cycle created consumptive development patterns across the
countryside that caused scattered housing in all directions with no overall plan by the
local government entity.30 Theorist William H. Whyte was one of the first urban scholars
to write about this troublesome pattern of growth (or lack of one).31 The pejorative term
for low-density peripheral development, which has become the United States’
characteristic form of urbanism, has been coined “suburban sprawl.” The term “suburban
sprawl” has entered common parlance today – to the point that it is now simply referred
to as “sprawl.” The courts have used the following definition: “[S]prawl is typically
used to describe development that is [an] inefficient use of land constructed in a “leap
frog” manner in areas without existing infrastructure. Often [it is] on prime farmland, [is]
automobile dependant, and consists of isolated single use neighborhoods requiring
excessive transportation.”32

29
Charles-Edouard Jeanneret, the famous Swiss architect/planner who later changed his name to Le
Corbusier at age 33 because of his belief that a person could reinvent himself, wrote extensively about
theoretical urban schemes. Le Corbusier theorized that the city that achieved speed achieved success. This
view was in accord with many planners of the period. Le Corbusier, The City of To-morrow and Its
Planning, 118 (1987).
30
Mainly because the new developments were being built in largely agricultural areas where there was no
existing local government in place to devise a comprehensive plan for new development patterns.
Developers who did not want to be troubled with regulations and plan reviews were encouraged to locate
their projects in these remote areas. This is a practice that is still occurring today.
31
“Because of the leapfrog nature of urban growth, even within the limits of most big cities there is to this
day a surprising amount of empty land. But it is scattered; a vacant lot here, a dump there – no one parcel
big enough to be of much use.” William Whyte, Urban Sprawl in The Exploding Metropolis (Classics in
Urban History), 113-114 (1993).
32
In Re Petition of Dolington Land Group, 839 A.2d 1021 (Pa.2003).
 7

Sprawl has had a particularly devastating impact on American agricultural areas.

It has been estimated that approximately two percent of American agricultural land is
consumed per year for suburban development.33 This means that 1,200 acres of farmland
are consumed for development every day.34 Of the current 940 million acre base of
private American farmland, only about 43 million acres are fertile class I farmland.35
Class I farmland is gently sloped with good water runoff.36 Frequently, farmland that
meets this classification is adjacent to metropolitan areas and is susceptible to being
developed into suburban tract housing.37
Agricultural land is not the only essential land resource that has been substantially
impacted by Euclidean zoning’s promotion of land consumption. Over half of America’s
wetlands38 have been destroyed by suburban development and associated capital
improvements.39 Traditionally thought of as swampland, wetlands may be the most
economically and ecologically important of all environmentally sensitive terrain.40
Wetlands serve as a natural sponge by soaking up rainwater and limiting downstream
flooding. This natural filtration system extracts pollutants and keeps them from
contaminating a larger body of water. Wetlands are also an important natural habitat for
wildlife and can become a popular destination for eco-tourism.41 This important land
resource has been severely damaged due to sprawling development.
Euclidean zoning’s framework has also created a transportation disaster. The
automobile is almost a necessity for a suburban community that has developed according
to Euclidean zoning and has separated its living areas from other districts. And as more
residential communities develop further outward, traffic congestion inevitably results
when residents must drive along the same highways to get to commercial activity located
miles inward. In almost all suburban residential neighborhoods, it is highly infeasible or
even impossible to walk to a grocery store, bank, workplace, or entertainment venue.
Quite often, every home in Euclidean residential districts requires at least one car.
Traffic congestion as a result of sprawl creates enormous societal costs in the
form of environmental pollution, driver safety42, and a general decline in a citizen’s

33
Shelby D. Green, The Search for a National Land Use Policy: For the Cities’ Sake, Loss of Agricultural
Land, 26 Fordham Urb. L.J. 69, 79 (1998).
34
See http://www.farmlandinfo.org/documents/29393/Farming_on_the_Edge_2002.pdf.
35
See supra note 2 at 747.
36
Id.
37
A prime example of productive farmland being threatened by development is in the Central Valley of
California. This is an area that produces about 20 percent of all fruits and vegetables that Americans
consume. Yet the population of the area is expected to triple by the year 2040, and urban sprawl has
already consumed much of the valuable farmland. See supra note 2 at 748.
38
The Environmental Protection Agency defines Wetlands as “areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”
See 33 CFR § 328.3(b).
39
Conrad Juergensmeyer, Robin Roberts, Land Use Planning and Development Regulation Law, 614-615
(2003).
40
Id.
41
See generally David A. Salvesen, Wetlands: Mitigating and Regulating Development Impacts (1990).
42
As the rate of new housing construction boomed in the 1990s, so to has the rate of aggressive driving
deaths. Aggressive driving deaths have risen 51 percent since 1990. Warren Cohen, Road Rage, U.S.
NEWS AND WORLD REPORT, June 2, 1997, at 24-30. The top five cities for aggressive driving deaths are
San Bernardo, Tampa, Phoenix, Orlando, and Miami, respectively. All are cities that have substantial areas
 8

quality of life. Time that could be spent in a social setting is now being spent in the
solitary automobile. Speed of life is no longer being experienced at a human pace, but at
aberrant speeds of up to 100 mph.43 Perception can be distorted in this realm:

The average American, when placed behind the wheel of a car, ceases to
be a citizen and becomes instead a motorist. As a motorist, you cannot get
to know your neighbor, because the prevailing relationship is competitive.
You are competing for asphalt, and if you so much as hesitate or make a
wrong move, your neighbor immediately punishes you, by honking the
horn, taking your space, running into you, or committing some other
antisocial act…Like drinking, driving has become a well-worn excuse for
all sorts of rudeness and aggression – “It could not be helped; he cut me
off!” The social contract is voided…[O]nly rarely do two pedestrians
gesture violently at each other as they [walk] by.44

Anyone who has lived in the suburban setting can attest that traffic is a major
problem. Traffic flowing between exurban areas and the city core can be maddening.
Driving fatalities are on the rise. Harmful automobile emissions are argued to have
contributed to a dire situation of global warming.45 If Euclidean zoning is not the origin
of these problems, it has very likely exasperated them.
The practice of exclusionary zoning is another serious flaw with the prevalent
form of zoning in American cities. Although an entire book could be written on this
topic alone,46 I will touch on the basic premise here as another example of how Euclidean
zoning is not meeting the needs of society today. Since the end of WWII, local
governments have used “zoning ordinances as [the] foot soldiers in the battle against
housing for low-income [minorities].”47 Euclidean zoning statutes normally employ a

that can be defined as suburban sprawl. Andres Duany, Suburban Nation: The Rise of Sprawl and Decline
of the American Dream 62 (2001).
43
Although, in Los Angeles, unbearable traffic has reduced freeway speeds to an average of 31 mph. By
the year 2010, Los Angeles highway speed is projected to fall to only 11 mph. James MacKenzie, Roger
Dower, Donald Chen, The Going Rate: What it Really Costs to Drive in the Report by the World Resources
Institute, 1992. See http://www.wri.org.
44
See supra note 42 at 60-61.
45
There is a debate as to whether global warming is actually caused by human action. For arguments on
global warming as a consequence of human action, see http://green.nationalgeographic.com. For a more
skeptical viewpoint, see www.globalwarming.org.
46
For interesting cases on exclusionary zoning, see National Land & Inv. Co. v. Kohn, 215 A.2d 597 (Pa.
1965) (Invalidating a city’s four acre minimum lot size ordinance); Builders Service Corp., Inc. v.
Planning and Zoning Commission, 545 A.2d 530 (Conn. 1988) (invalidating a zoning ordinance that
required houses in the city to be at least 1300 square feet); Appeal of Girsh, 263 A.2d 395 (Pa. 1970)
(invalidating an exclusion of apartment housing); Lower Merion Twp. v. Gallup, 46 A.2d 35 (Pa. 1946)
(Holding that a trailer can be a home subject to zoning regulations under the police power even though it is
not considered real estate subject to taxation). For interesting legal articles on exclusionary zoning, see
Paul Boudreaux, An Individual Preference Approach to Suburban Racial Desegregation, 27 Ford. Urb. L.
J. 533 (1999); J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L. J. 2265 (1997); Daniel
Mandelker, Racial Discrimination and Exclusionary Zoning: A Perspective on Arlington Heights, 55 Tex.
L. Rev. 1217 (1977).
47
Jerold S. Kayden, Diversity by Law: On Inclusionary Zoning and Housing, in Sprawl and Suburbia: A
Harvard Design Magazine Reader 71 (2005).
 9

wide variety of restrictions that mandate minimum lot sizes, prohibition of multi-family
housing in areas reserved for single-family use, and even complete exclusion of mobile or
prefabricated homes within city limits. These restrictions, commonly found in Euclidean
zoning schemes, can have the effect of controlling the income level of people in a
locality. This creates what developers often market as an “exclusive community.” Some
developers have come to embrace exclusionary zoning and the segregation of single-
family housing from multi-family units for marketing purposes. As a marketing concept,
developers can sell the concept of exclusivity by building similarly priced single-family
homes within gated, country club style communities. In essence, the developer is selling
the idea that you are successful if you can buy a home within these walls.48 Then, as
homeowners, the gated-in residents concern themselves about the value of neighboring
homes, hoping that their own investment will be secure as long as all neighboring
property is similar in price, style, and appearance.49 The resulting housing similarity
promotes a similar financial background that causes a brand of segregation that can have
serious societal consequences for American culture. A child growing up in a one of these
homogeneous neighborhoods is less likely to develop a sense of empathy for people of
other income levels and may not be fully prepared to live in a diverse world.50 The more
homogeneous the community is, perhaps the less the understanding of all that is different
and the less concern for the world beyond the subdivision walls.51
Another problem with Euclidean zoning is the complexity of the zoning
ordinances themselves. Euclidean codes can be nearly a century old in certain cities. A
code will likely have been amended numerous times throughout its life, adding layers of
complicated additions and cross-referencing footnotes.52 As a result, permitted and
prohibited uses may be spread out in long sections of repetitive text, seemingly
contradicting itself between sections.53
In many cases, outdated codes are amended several times without ever
undergoing a complete revision.54 Text amendments are added to the code incrementally
until the regulations add up to a voluminous legal treatise. Architects, builders,
developers, and even lawyers inexperienced with zoning law may find these convoluted
ordinances difficult to decipher. A developer, who otherwise may have been willing to
attempt an innovative design, may be deterred from attempting anything new because of
the expense associated with hiring a zoning specialist.

48
See supra note 42 at 43.
49
Id.
50
Id. at 45.
51
This problem is a double-edged sword. Underprivileged children also have less understanding of the
upper-class and middle-class children and may assume that wealthier children do not care about their
destitution. To exasperate this problem, the wealthy suburbs typically grow in the opposite direction then
the less fortunate side of town, putting even more distance between the two groups of children. Id. at 46.
52
A great example is Milwaukee, Wisconsin. Milwaukee’s old Euclidean-based code had accumulated 125
different use districts, many of which were never even used. In 1997, a four-year revision process ensued.
The code was slimmed down from 25 sections to only 10. Unused use districts were eliminated and a
searchable ordinance is now available online. Due to the code simplification, review time for developers at
the board of zoning appeals has been reduced from an average of 27 weeks to an average of 7 weeks.
Getting to Smart Growth: 100 More Policies for Implementation (2003) at 85.
53
Id.
54
Id.
 10

D. The Need for Change

Sprawl presents itself as the single most significant and urgent issue in American
land use at the turn of the century.55 The centrifugal tendencies of Euclidean ordinances
have left the country’s landscape with severe social, environmental, and physical
problems attributed to sprawl. Euclidean codes separate our homes from our workplaces,
schools, churches, and entertainment. Much of the critical discourse and debate among
the leaders in urban theory have dealt with how to repair America’s fragmented state.56
Although philosophies and ideas may not align, there is near uniformity57 in the opinion
that Euclidean zoning is not properly tailored to design today’s urban fabric. Despite
industry-wide accord that change needs to transpire, sprawling new construction is still
the predominant form of housing for America’s new homebuyer.58
One of the new schools of thought59 to be born out of the sprawl debate is new
urbanism. New urbanism is a planning philosophy that attempts to solve the problems of
sprawl by redefining the design of the physical environment. This philosophy is based on
the ideals that city infrastructure should reorient itself around the pedestrian instead of the
automobile, a community should have an economically and culturally diverse population,
and accessible public spaces should occupy focal points within the municipality.60
New urbanism stresses that pedestrian orientation should be established by
placing areas of importance within the residential realm. New urbanism seeks to place all
the basic necessities and pleasures of living (i.e. grocery stores, banks, cafes, theaters,

55
See supra note 47 at vii.
56
For a great collection of essays debating the suburban sprawl issue by the current leaders in urban theory,
see Sprawl and Suburbia: A Harvard Design Magazine Reader, (see supra note 47 for citation).
57
However, there are a few scholarly groups who believe that sprawl is an acceptable form of land use:
libertarians, property-rights advocates, and rogue avant-garde architects. Critics of the anti-sprawl
movement see sprawl as an embodiment of the freedom that current law permits individuals to exercise.
From this perspective, the cures to sprawl – limitations on property rights, the establishment of centralized
bureaucracies – are likely to be worse than the disease. For excellent readings in favor of suburbia’s
sprawling condition, see Randal O’Toole The Vanishing Automobile and Other Urban Myths: How Smart
Growth will Harm American Cities (2000); Rem Koolhaas, Bruce Mau, What Ever Happened to
Urbanism? in S, M, L, XL (1997); Robert Venturi, Denise Scott Brown, Steven Izenour, Learning
From Las Vegas, (1994).
58
“Demand for new homes is on track to total as many as 20 million units between now and 2015. The
vast majority of these homes will be built in lower-density areas where cheaper land is in greater
supply…The number of the country’s largest [metropolitan areas] with more than half of their households
living at least 10 miles from the [central business district] has more than tripled from 13 in 1970 to 46 in
2000…As sprawl continues, commute times of an hour or more are increasingly common. In fact, the
number of workers with such long travel times increased by 3.1 million in the 1990s. Lengthening
commutes and worsening congestion are keeping demand for newer units in and near city centers robust,
adding to the premium households must pay to live closer to employment centers. Without looser
restrictions on higher-density construction closer to city centers, though, the lion’s share of new
development will occur in cheaper, outlying areas.” Joint Ctr. for Hous. Studies, Harvard Univ., The State
of the Nation’s Housing 2005, at http://www.gsd.harvard.edu/jcenter.
59
Smart growth and new urbanism are the two most popular philosophies that have been created to curb
suburban and exurban sprawl. Although similar, smart growth is more policy-oriented and new urbanism is
more design-oriented. See Smart Code v. 8.0 on page C6. For more information on smart growth, see
Getting to Smart Growth: 100 Policies for Implementation (2002).
60
Cong. For the New Urbanism, Charter of the New Urbanism 1 (1998),
http://www.cnu.org/cnu_reports/Charter.pdf.
 11

etc.) within a five-minute walking distance from the home.61 New urbanist designs rotate
around this aspiration by striving to keep the center of a community within a quarter-mile
of its edge.62 Pedestrian-friendly streets are also vital to the formation of a city.63 Design
guidelines include tree-lined streets and wide sidewalks, ample shade, streetlights, and
benches so the environment is appealing to a person on foot or bike.64 On-street parking
can be used as a buffer between automobile flow and the vulnerable pedestrian.65
Despite all the prominence on the pedestrian, new urbanism still strives to tailor design to
accommodate both pedestrians and automobiles alike. “Automobiles are a fact of
modern life, and they are not going away.”66 Instead, as stated in the new urbanist
charter itself, communities should accommodate automobiles while also encouraging
pedestrian travel and preserving public space.67
Diversity of housing stock is also one of the central goals of the new urbanism
planning philosophy. In America, the share of nuclear-family households is diminishing,
while demand for single-member housing grows.68 By 2030, it is estimated that 20
percent of Americans will be elderly, making a large portion of housing consumers
unable or unwilling to use an automobile, care for a large home, or maintain a backyard.69
Yet, the majority of suburban neighborhoods offer extremely similar housing choices –
four bedrooms and two and a half baths. And worse yet, these houses are intentionally
set within an extremely constricted price range. When a child moves out of a parent’s
home, it is unlikely that he or she will be able to afford anything within the same
neighborhood. Encouraging integration of single and multi-family structures within the
same community can help create more options that households can choose.70 Public
and civic space is also highly valued in this form of planning.71 Local governmental
offices, public libraries, public parks, and police and fire stations should be at the heart of
every city neighborhood or urban village, centrally located where civic services can be
easily accessed and utilized by all.72 Children should be able to walk safely to schools.73
Public parks and pocket parks should be distributed every few blocks, as should venues
for playgrounds, pick-up sports, dog walking, and people watching.74

III. FORM-BASED ZONING AS AN ALTERNATIVE TO EUCLIDEAN ZONING

61
See supra note42 at 198.
62
Id.
63
See generally Jane Jacobs, The Death and Life of Great American Cities 29-88 (1961). For an overview
of Jacob’s influential views on urbanism and critical responses to her work, see David R. Hill, Jane
Jacobs’s Ideas on Big, Diverse Cities: A Review and Commentary, 54 J. Amer. Plan. Ass’n 302 (1988); Jay
Wickersham, Jane Jacobs’s Critique of Zoning: From Euclid to Portland and Beyond, 28 B.C. Envtl. Aff.
L. Rev. 547 (2001).
64
See supra note 64.
65
Victor Dover, Twenty Three, in The Charter of the New Urbanism 147 (2000).
66
Douglas Farr, Twenty Two, in The Charter of the New Urbanism 141, 144. (2000).
67
See supra note 61 at 2.
68
See supra note 60 at 18.
69
Id.
70
See supra note 42 at 46.
71
Jeremy Meredith, Sprawl and the New Urbanist Solution, 89 Va. L. Rev. 447, 481.
72
Peter Calthorpe, The Next American Metropolis: Ecology, Community, and the American Dream 93
(1993).
73
Elizabeth Moule, Sixteen, in The Charter of the New Urbanism 105, 107. (2000).
74
See supra note 74 at 91-93.
 12

The new urbanism and smart growth ideology is an alterative planning approach to be
ideally used in place of Euclidean planning techniques. These principles have the
laudable goal of creating and redeveloping sustainable cities and neighborhoods that do
not contribute to sprawl’s high societal and ecological cost. Since Euclidean zoning
ordinances sometimes unintentionally place restrictions on designing within the smart
growth approach, planners, developers, and architects have faced difficult challenges in
building their vision. Over the last decade, form-based codes have been adopted
intermittently throughout the United States as an alternative zoning instrument to be used
instead of Euclidean’s constricting use-based regulations. In recent years, the call for
zoning reform using form-based zoning has gained momentum. Accordingly, the legal
and planning professions must address the legal impediments that arise when
transforming existing Euclidean zoning codes into a newer form-based code approach.

A. What are Form-Based Zoning Codes?

Just as early Euclidean ordinances were once codified into law,75 progressive
urbanists have collaborated to draft innovative, contemporary zoning codes that envision
and regulate the shape of the built environment instead of its use.76 Because these codes
focus on the shape and form of a city, they are commonly referred to as form-based
zoning codes. A form-based zoning code is a compilation of multi-disciplinary
provisions that link the design of circulation and public space to the design of private
buildings and lots.77 A form-based code’s purpose is to design a functioning city from
the regional level all the way down to the building and streetscape.78
Form-based coding is in sharp contrast to the status quo of Euclidean zoning. In a
typical Euclidean municipality, usually there are many separated municipal agencies and
planning officials tasked with contributing specific, isolated responsibilities that are later
combined to encompass a final zoning ordinance.79 Because so many specialists are
tasked with separately designing and regulating the components of the built environment,
each of whom attempt to make their own issue the central one in development politics,
the results are increasingly dysfunctional cities.80 Euclidean zoning practice has

75
For a great example of an early Euclidean code, see the New York City zoning ordinance of 1916
discussed supra in section II(a).
76
As a way of regulating shape, a form-based code would likely require buildings in a downtown district to
be between four and six stories and closely abut the street. Additionally, the form-based code would
require the sidewalk area to be of a certain quality by being lined by trees and having streetlights and
benches. This type of code would likely produce retail shopping at the street level and residences or offices
on the higher floors through sheer design and market demand. Alternatively, a Euclidean code would not
regulate the placement of the building on the street, but would likely require that the entire building be
entirely commercial or residential. If a merchant wished to open a shop on the ground level, he would
likely have to obtain a rezoning under the Euclidean code.
77
Robert Alminana, et al. White Paper on Smart Growth Policy in California, prepared for the State of
California’s Governor’s Office of Planning and Research (2003). See
http://fisherandhall.com/OPR/WhitePaper.pdf.
78
Id.
79
Id.
80
For a good explanation of this dysfunctional process: “Width standards for residential streets have
steadily increased, due mainly to the efforts of emergency [response vehicles]. Today, new residential
 13

produced urbanism consisting of strip shopping centers, big-box retail, vast parking
lots81, and rows of identical housing consuming the exurban farmland and forest.
Traditional Euclidean zoning is proscriptive, meaning that these ordinances merely
restrict the type of development that can occur instead of proactively guiding the urban
pattern that should take shape.82 The form-based coding process, on the other hand, is an
prescriptive process that was created to attack these Euclidean problems at a critical point
– the intersection of law and design.83 In theory, the professionals involved in the
drafting of form-based codes should be multidisciplinary. The land use lawyers should
be versed in both city and transportation planning and the urban planners and designers
should be familiar with both zoning codes and the local legislative processes84 because
these generalists will be charged with the task of creating legal ordinances and design
standards that will ensure both city and suburban buildings alike will be built in the
proper scale with the corresponding streets and public spaces. In another stark contrast to
Euclidean zoning, form-based codes utilize graphic illustrations, diagrams, and tables that
assist readers in the understanding of legal terminology. 85 In conventional land
regulation, design illustrations that may help in ordinance comprehension are kept
separate from the zoning code. Form-based codes, on the other hand, integrate
illustrations directly into the body of the code as the main organizing structure for the
entire document. The tables and associated metrics may be as legally binding as the
coding language itself.86
In theory, a form-based code will place no restrictions on land use, allowing the free
market to determine which type of industry is best for each street. By not regulating land
use, a form-based code allows the building usage to automatically adapt to demographic
and market shifts.87 Freeing the real estate market to respond to changes in demand has
been shown to increase property values.88

B. Smart Code v. 8.0

streets are [40] to [60] feet wide – the same widths specified for the highways of just a few years ago.
These excessive widths are proven to encourage high vehicle speeds, which are demonstrably dangerous
for pedestrians…These high-speed, high-volume roadway geometries in residential areas also provide for
fewer road interconnections, thwarting pedestrians and actually reducing emergency vehicle response
capacity. But, even though total public safety is reduced, few local planning officials [will] challenge fire
officials on what is usually presented as a one-dimensional technical issue.” Id.
81
Big-box retailing is a legitimate problem in the United States. If Wal-Mart, the world’s largest retailer,
were classified as a country, then its gross domestic product would be larger than three-quarters of the
world’s economies. For an excellent reading on big-box retail and abandoned strip mall problems facing
America, see generally Rem Koolhaas et al., Project on the City 2: Harvard Design School Guide to
Shopping 67 (2002).
82
Andres Duany, Emily Talen, Making the Good Easy: The Smart Code Alternative. 29 Fordham Urb. L. J.
1445, 1452.
83
Andres Duany et al., Smart Code v. 8.0. See Commentary 1 (2006).
84
Id. at Commentary 5. For example, the Smart Code, version 8.0, was drafted by a team of
interdisciplinary lawyers, planners, and architects. The Smart Code will be explored in more detail, infra.
85
See generally Smart Code § 6: Standards and Tables.
86
Id.
87
American Planning Association’s Planning Advisory System (PAS), Quick Notes No. 1, October 2004.
See https://www.planning.org/pas/member/pdf/QN1text.pdf.
88
Id.
 14

The Smart Code v. 8.0 (“Smart Code”) is an example of a modern form-based zoning
code.89 The Smart Code is a model code that can be adopted in whole or in part.90 Area
residents are encouraged to take part in the adoption of code provisions through a public
consultation process called a charrette.91 A charrette is a series of interactive community
meetings where contemplated design ideas are discussed and actual completed designs
are reviewed.92 The community is encouraged to give input about their vision for the
city. The charrette is also a time for the code drafters to learn about the character of the
city through the stories of its residents. Successful drafters should be able to interpret the
community’s contributions and reflect it in the actual code provisions and accompanying
illustrations.
The Smart Code is explicitly based on the concept of the transect. 93 A transect is a
cross-section of a region used to reveal a sequence of environments.94 The code drafters
analyze the region in question starting from the rural countryside, continuing to the
suburban fringes, and finishing all the way down to the city center. This process creates a
rural to urban continuum, which is then segmented into six zones as a basis for
organizing the intensity of the region’s urban character. Each Transect Zone (“T-Zone”)
is labeled from T1 through T6, with T1 being natural wilderness and T6 being the urban
core.95 An additional category or “specialized district” is reserved for such uses as
airports, landfills, college campuses, or other large areas that do not fit seamlessly into
the transect categories. By dividing the band into different T-Zones, every point on the
spectrum can find its proper balance between rural and urban. Once areas are defined
according to its urban context, an ideal vision is created (with the community’s
involvement through the charrette process), and regulations can be written to prohibit
nonconformities from being constructed.96 To keep the code flexible, variances and

89
The Smart Code is the template for a form-based code that is currently replacing the Euclidean zoning
regulations of Miami, Florida. Miami will be the largest city in the United States to have its zoning laws
replaced with a form-based code. For more on Miami’s rezoning, see http://www.miami21.org. The model
Smart Code is available for free download at http://www.placemakers.com. I strongly recommend that the
reader review the Smart Code during or after the reading of this article as an example of a form-based
zoning code. As an interesting aside, Andres Duany, co-author of the Smart Code and principal of an
influential architecture+planning firms, explained why the Smart Code is available for free in a highly
publicized debate with Rem Koolhaas, another internationally-recognized architect and professor at the
Harvard Graduate School of Design. Duany explained that the Smart Code is available freely as a hope
that more planners will have the opportunity to explore its concepts and implement its ideas in their
municipalities. This theory, he explains, follows the same strategy that Bill Gates uses: “giving away the
program so the world will operate according to [the] operating system.” Andres Duany, Rem Koolhaas, &
Alex Krieger (as moderator), Exploring New Urbanism(s), 137 (1999) (transcript of debate available upon
request to the author).
90
Smart Code at Commentary 13.
91
Smart Code § 1.4.2.
92
Smart Code at Commentary 16.
93
The transect, as originally used by Von Humboldt in 1790, analyzed natural ecology showing varying
characteristics of different lands types, such as shores, wetlands, plains, and uplands. Smart Code at
Commentary 7.
94
See supra note 84 at 1456.
95
Smart Code § 6 (Table 1: Transect Code Descriptions).
96
For example, a 10-story office building would be out of place in the suburban T-Zone 3, where the
natural character calls for lower density structures. Therefore, the regulations in T-Zone 3 would restrict
any form of an office building over a certain height. Notice that the commercial use of the office building
would not be prohibited, only the shape of the structure.
 15

warrants are allowed under the Smart Code.97 Also, T-Zones are considered for rezoning
after a predetermined time frame through a public hearing process.98

C. Replacement or Overlay?

Form-based codes are normally drafted so they can be used as either a replacement or
an overlay99 for a Euclidean zoning scheme. Since form-based zoning is still in its
relative infancy, this type of zoning is typically used as an overlay, giving the developer a
choice as to whether his development will follow the Euclidean ordinance or the Form-
based ordinance. If the developer chooses to follow form-based regulations, then the
underlying Euclidean code restrictions are relaxed and the developer is free to build his
vision along smart growth principles. This approach equalizes the regulatory
environment so that innovative approaches to design can compete with traditional
sprawling developments in the marketplace. As the market performance of Smart
Growth developments tends to be greater100, it is hoped that traditional developers will be
drawn to the smart growth model and form-based codes will therefore become
prevalent.101 Then, over time, the Euclidean code will be moved from by right to by
special permit.102
However, the problem with using a form-based code as an overlay is the optional
nature of the overlay process. Because the real estate lending industry is entrenched in
stability, it has been found that lenders (and therefore developers) are sometimes hesitant
to use a new, optional code when given a choice.103 Also, the overlay process leaves the
initiative of reform to the developer when that role is better suited to planners and city
officials. For the built environment to be truly unchained from the habit of developing in
a sprawl-like pattern, a city must replace its existing Euclidean zoning code with an
alternative such as form-based zoning. However, the wholesale replacement of a familiar
regulatory system is bound to generate a great deal of community interest, concern,
discussion, and debate.

97
Smart Code § 1.5.
98
T-Zones are up for rezoning every 20 years in the model version. Smart Code § 2.2.1.
99
An overlay zone places property simultaneously in two different zones. It is used in situations where a
city wishes to lift or reduce restrictions from a certain part of a zoned area, usually to allow greater freedom
of use to generate diversity. The overlay technique derives its name from being drawn on tracing, mylar, or
other transparent paper which is then placed or “laid over” the official zoning map. Julian C.
Juergensmeyer, Thomas E. Roberts, Land Use Planning and Development Regulation Law § 4.21 (2003).
An example of a city using a form-based overlay is the City of Seattle’s Station Area. See the ordinance at
http://www.cityofseattle.net/transportation/ppmp_sap_council.htm.
100
Recent studies by Market Perspectives and the Urban Land Institute that compared new urbanist
developments with standard subdivisions showed a minimum 15 percent premium for houses in new
urbanist communities. New urbanist projects were also selling faster than those in conventional
subdivisions. Peter Calthorpe, New Urbanism: Condensing the American Dream. See
http://www.cnn.com/SPECIALS/2000/democracy/sprawl/views/#up.
101
For more on form-based coding as an overlay, see generally Brian W. Ohm, Robert J. Sitkowski, The
Influence of New Urbanism on Local Ordinances: The Twilight of Zoning? 35 Urb. Law. 783 (2003).
102
Smart Code at Commentary 14.
103
Philip Langdon, Zoning Reform Advances Against Sprawl and Inertia, 8 New Urban News 1 (2003).
 16

D. The Legal Hurdles to Applying Form-Based Zoning Codes as a Replacement to

an Existing Euclidean Code

As a preliminary matter, any type of municipal zoning regulation must be authorized

by the state.104 The SZEA was issued as a model enabling statute for states to adopt and
grant cities effective power to zone and regulate property. 105 Accordingly, all 50 states
have adopted some form of enabling statute that grants cities the power to zone. Explicit
in the SZEA, the zoning power is conferred upon the municipality for the purpose of
promoting the health, safety, morals, and general welfare of the community. 106 Although
a form-based code’s emphasis on form may make its purpose seem aesthetic only107, its
rationale is based on creating a more complete human social environment than is possible
under Euclidean zoning. Form-based codes must state that the purpose of regulating
form is to establish a human habitat that promotes the health, safety, and welfare of the
community while also conserving land and resources.108
An issue with form-based zoning is whether a state’s enabling legislation permits a
compact use of business and residence. The SZEA specifically states that its purpose is
to enable cities to lessen congestion, provide adequate air and light, prevent
overcrowding, and avoid undue concentration of population.109 The adopting
municipality should consider the state’s version of the SZEA, as well as the Standard
City Planning Enabling Act,110 to see if the state has created legislation specifically to
authorize a form-based zoning code.
Only a handful of states have created specific enabling legislation to authorize form-
based zoning codes.111 Wisconsin and Pennsylvania have both adopted state legislation
to endorse the implementation of form-based zoning codes.112 Most recently113, governor
Arnold Schwarzenegger signed Assembly Bill No. 1268, which expressly authorized
form-based regulatory techniques in California by allowing local municipalities to
provide specific zoning measures that regulate relationships between buildings, streets,
and outdoor public areas. This language also included the authorization for including text
and diagrams together in zoning regulations. By adopting a form-based enabling statute,
the state eases the way for a city to apply innovative form-based regulations to fix
problems of urban sprawl.
However, even if there is no express state enabling legislation, courts may imply a
city’s authority to draft ordinances that allow mixed use anyway. The implied authority

104
Hunter v. Pittsburgh 207 U.S. at 178.
105
See supra note 2 at 33.
106
SZEA § 1; see supra note 2 at 33.
107
In any event, the U.S. Supreme Court has affirmed aesthetics as reason enough to exercise the police
power for the general welfare. Reid v. Architectural Board of Review of City of Cleveland Heights, 192
N.E. 2d 74 (1963).
108
For an example of this provision, see Smart Code § 1.1.4.
109
SZEA § 3; see supra note 2 at 34.
110
§ 3 of the SZEA provides that zoning must be done “in accordance with a comprehensive plan.” The
act, however, does not define what a plan is or how one is to be developed. The Standard City Planning
Enabling Act, published a few years after the SZEA, does define a comprehensive plan. Charles M. Haar,
In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955).
111
Robert J. Sitkowski, Brian W. Ohm, Enabling the New Urbanism, 34 Urb. Law. 935, 936 (2002).
112
Wis. Stat. Ann. § 66.1027; 53 Pa. Cons. Stat. Ann. § 10701-A.
113
July 20, 2004.
 17

stems from form-based codes’ similarity to Planned Unit Developments (“PUD”). PUD
ordinances were initially developed in part as a way of introducing flexibility in light of
the shortcomings of Euclidean zoning.114 The basic technique of a PUD is contained in
the name: it is the precise planning of a development as a “unit” on one parcel or area of
land.115 Usually, this development is part residential and part commercial. PUD statutes
are akin to form-based codes in that they are an attempt to evade harsh Euclidean
regulations to allow creative communities. However, a PUD ordinance can only be used
to build a single development at a time and cannot be a used as a framework for rezoning
an entire city. As PUDs are much older than form-based codes, they have already
forgone and withstood judicial scrutiny. 116 Since the issue is the same, whether city
ordinances encouraging mixed use are valid under state enabling legislation, it is likely
that a judiciary would also uphold a form-based code.
To ensure that there is no question form-based codes are authorized in the state, the
state can amend their enabling act by adding a paragraph similar to the following:

The text and diagrams in the land use element that address the location and
extent of land uses, and the community’s zoning regulations that implement
these provisions, may also express community intentions regarding urban
form and design. These may differentiate neighborhoods, districts, and
corridors, provide for a mixture of land uses and housing types within each,
and may provide specific measures for regulating relationships between
buildings [and] between buildings and the public realm of the street.117

Once the initial issue of authority is resolved, other legal issues regarding form-based
coding arise. For instance, a “pure” form-based zoning code does not regulate any land
uses. A pure form-based code would only regulate a building’s placement on its lot and
its relationship to the street and other surrounding buildings.118 So, what would happen
in a form-based code municipality if an adult movie theater opened up next to an
elementary school? Under normal Euclidean ordinances, there would usually be
numerous provisions regulating adult uses from being too close to schools or other places
of high societal value. In fact, the Supreme Court upholds sex business restrictions
against first amendment challenges as long as the restriction serves a substantial
governmental interest and provides reasonable alternative avenues for the regulated
speech (here, the “speech” being the sexual activities and products inherently associated
with a sex business).119 These challenged sex business provisions were all based on
restricting land use, not form. For example, Detroit enacted a zoning ordinance that
required any sex business to be located at least 500 feet from a residential use.120 If
Detroit was a pure form-based municipality, how could they prevent the sex business

114
See supra note 113 at 943.
115
See supra note 2 at 170.
116
Evans v. Teton County, 73 P. 3d 84 (2003).
117
Proposed State Enabling Statute addition to California Government Code § 65302(a). See supra note
79. Also, see Smart Code at appendix 41 for another version of a sample state enabling statute.
118
For an example of how a form-based code would regulate these variables, see Smart Code § 6 (Tables
4A – 9).
119
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
120
Young v. American Mini-Theatres, 427 U.S. 50 (1976).
 18

from encroaching upon the residential areas? Or even worse, how could Detroit, using a
form-based code, keep a sex business away from a school? A church? The simple
answer is that Detroit would not be able to restrict sex businesses if it was a pure form-
based municipality. By solely regulating the shape of the built environment and allowing
the market to dictate where uses should be placed, a form-based municipality lacks the
power to restrict offensive uses. By relying only on market demand to locate land use, an
offensive use would inevitably spring up in unwanted territory. A pure form-based code
would lack the teeth to rectify the situation. Therefore, a form-based code must regulate
at least some forms of use.
Local form-based codes cannot dispense with uses for another reason – overriding
federal statutes such as the Fair Housing Amendments Act, the Telecommunications Act
of 1996, and the Costal Zone Management Act, which are all explicitly use-based. Since
form-based codes regulate based on design, it is likely that a federal statute will
supercede the form-based laissez-faire approach and dictate regulations of certain land.
For example, the Costal Zone Management Act regulates costal wetlands.121 The act
requires that each coastal state file a management plan for its costal zones with the
federal agency and the state plans are only approved if they are in accordance with
federal use recommendations.122 Many times, the state plans will restrict residential use
along the coastline and enact statutes that limit coastal land use to recreational uses such
as boating, trapping, and horticulture.123
However, a form-based code would not dictate use regulations along these same lines.
In a form-based code, the coastal area may be designated as the civic/open space that the
city is to gravitate around. The charrette process may reveal that city residents want to
have a number of beachfront restaurants, shops, and boutique hotels along the coastline to
draw tourism. The form-based code would be drafted to reflect this vision and therefore
would promote a certain number of buildings to be constructed in the costal zone.
Unfortunately, the federal statutes regulating use would trump the municipality’s form-
based code. Once again, the form-based code would have to include another use
restriction in its catalog. This is an area of concern for form-based enthusiasts.

IV. CONCLUSION

Traditional zoning was held constitutional in Euclid as a proper form of the state
police power, as separating use was an innovative strategy to regulate the built
environment and provide for the health, safety, and welfare of city residents. Today, as
we enter the information age, the world has changed. Cars constrict the roadways, gas
prices are disproportionately inflating, and sprawl and global warming has become
common vernacular. The same methods that alleviated urban problems in the early 1900s
are actually creating irreversible problems to the contemporary landscape. Ironically, the
same zoning method upheld by the Supreme Court in Euclid as a constitutional practice
to improve quality of life may now be the same culprit that adversely affects a person’s
health, welfare, and safety.

121
16 U.S.C. §§ 1452, 1454-1455(1993).
122
Id.
123
Va. Code Ann. § 28.2-1302(3) (1993).
 19

Form-based codes are an innovative, contemporary attempt to design the built

environment in a way that can alleviate the problems Euclidean zoning creates. Form-
based codes are drafted with community participation, resulting in a regulatory process
that shapes buildings in relation to their street and community. Over time, form-based
codes may produce an environment that is fundamentally different than suburban sprawl,
featuring an urban spectrum that naturally progresses from a compact, mixed use center
to a more suburban and rural environment. Although form-based codes can be utilized as
an overlay zone to be used concurrently with Euclidean zoning, form-based codes may
need to be designed as a replacement to Euclidean codes if real change is to occur.
Unfortunately, as with any drastic change in the law, replacing an existing Euclidean
code with a form-based code will produce various issues that must be addressed. The
adopting jurisdiction must ensure that a form-based code is an allowable form of its
state’s policing power and authorized in its state zoning enabling legislation.
Furthermore, a form-based code must consent to regulate certain, few uses (such as adult
uses), while not venturing down the slippery slope of regulating multiple uses and being
considered a hybrid Euclidean code. Federal and state laws must be analyzed to ensure
that an important element of the form-based code will not be superseded. Other legal
implications may still arise. If the state dictates that a city’s zoning regulations must be
consistent with a state-drafted comprehensive plan, the form-based code must abide by
the state’s plan. Certain common elements of a form-based code, such as transfer of
development rights, building code waivers, and the bifurcated variance/warrant system,
would therefore be questioned. Other questions are still raised: What happens when an
owner or developer has expended money but is still in the preliminary process of
changing zoning and getting building permits under a Euclidean code? Does he have any
vested rights? What if his development is in contrast to the form-based code’s vision?
What about public notice? How much time would the public demand before a change of
zoning could occur? Also, how would the municipal attorneys deal with satisfying the
procedural and substantive due process issues regarding a zoning change of this
magnitude? These issues must be addressed before form-based zoning regulations can
replace Euclidean ordinances.
Judge Kelly, writing for the majority in Moore v. City of Detroit, stated that a
municipality’s innovative attempt to solve difficult urban problems was a laudable
aspiration.124 The court continued by stating, “[the innovative idea] may not work, but
[the city’s efforts] should be tried.”125 This reasoning applies particularly well to the
attempts of form-based coding to alleviate the social and physical ills left by Euclidean
zoning. The form-based zoning code may not be fully tried and tested yet, but it remains
an innovative attempt to solve a difficult urban problem and is certainly worth trying.

124
Moore v. City of Detroit, 406 N.W. 2d 488.
125
Id. at 491