What Can Zoning Do? What Should Zoning Do?

Donald Clinton, AIA, MRAIC, LEED AP

Zoning or Planning?

While in much of the country municipalities have attempted to define and map comprehensive planning policies as a precondition to drafting zoning codes, New York has historically used zoning as its dominant tool for implementing planning policy. Whether that is the best way to proceed or not, it has not stopped the city from becoming a font of policy innovation, much of it applicable in any city seeking to manage growth and change. Creative zoning tools have been devised to:

• Manage the change of waterfront land from historic maritime and industrial uses to a broader range of water-related, recreational and residential uses.

• Enhance resiliency in the face of climate stresses and rising sea levels. Development in flood-prone areas is newly constrained, and "non-complying" development has been permitted to allow buildings to lift above flood levels.

• Respond to the changing demography of the city by permitting greater flexibility in both location and bulk for residential buildings for seniors, and by allowing "micro units" to serve the growing population of single adults, both young and old.

• Protect and preserve landmark buildings by relaxing policies for transfer of development rights and for configuring new construction in return for the retention and ongoing care of valued historic structures.

• Encourage superior housing design, through zoning incentives that reward good design with increased density and greater flexibility in massing.

• Help solve the problem of "food deserts" in poorer neighborhoods by giving developers density incentives to include in their projects stores selling fresh food.

• Respond to what has become a national challenge in housing affordability. While the gap between rents and incomes in New York is particularly notable (see the chart below). This issue is causing cities across the country to search for incentives to encourage production of affordable living. Much of the strategic thinking has focused on "inclusionary" housing policy, which seeks to have market housing cross-subsidize affordable housing by offering an incentive in the form of increased density. This tool can only be truly effective where populations are growing and where land use mapping can identify places where greater density can help address the housing shortfall. In New York, the growth in population, driven by both natural increase and by net positive migration, is putting increased pressure on housing supply, and land use mapping is being aggressively rearranged to respond to the opportunities this growth creates.

Density Incentives

As many of these examples illustrate, New York has frequently used the incentive of increased density as a tool to drive planning policy. To succeed, this strategy requires a growing, thriving city in which there is a deep demand for rentable and saleable space and it requires a creative zoning ordinance that balances the cost of meeting the public policy goals sought (affordable housing, open space, transit linkages) with the benefits a landowner gains through the density bonus.

The Challenge of Mixed Use

Across the country, the historic role of zoning to segregate uses by district has been challenged by the recognition that modern industrial and commercial uses are generally not the "noxious" neighbors they once were, and that diverse mixed-use neighborhoods are desirable places to live, reduce commuting needs and are able to evolve more successfully as a city grows and changes. New York has been a leader in creative thinking on mixed use, from Jane Jacobs' close observations of her Greenwich Village neighborhood to the hard-won right to allow "loft" living in SoHo and other former industrial districts. While there is much work to be done in devising successful mixed-use regulation, New York has been an important laboratory for experimentation.

The Special District Idea

One of the most promising vehicles for creative zoning is the concept of a "special district," where the rules are tailored to the unique characteristics of place. Notably, the special district strategy can foster design-driven regulation: within the confines of a specific district it really is much more feasible for a city to create designs for what it would like to see, then write a "lean ordinance" to allow that design to be realized. New York has used this strategy in dozens of special districts; the unique goals of each district are extraordinarily diverse, reflecting geographic character, built fabric and community consensus.

What Could Other Cities Learn From New York?

Working as we do across the country, there are aspects of New York's zoning code that are particularly distinctive, and offer lessons for other cities:

• As-of-right: In most parts of the country, projects of any significant size are compelled to go through at least some form of discretionary review: that is, even though the project follows all the "rules" in the local zoning code, a discretionary approval, often called "site plan approval" is required by a government body, usually a planning committee or town council, or both. In New York, a large part of the City gets built "as-of-right": follow the rules and all you need to do is file for a building permit. Of course this has meant that New York's code has become a large and complex document; perhaps that is a reasonable price to pay for certainty of process and schedule.

• Floor area as a measure: While other factors can come into play in defining what can be built on a given piece of land, the ultimate controlling factor in New York is usually the "floor area ratio," i.e. the ratio of built floor area to land area. This is not true in many areas of the country, where setbacks, height and other controls are the only tools to define the scale of what can be built, creating real uncertainty for landowners of the economic potential of their land – especially when you consider that construction cost and rental or sales income are a product of total floor area more than any other factor.

• Parking that responds to context: In much of the country minimum standards are set for provision of parking, and no upper limit is imposed. In New York, large sections of Manhattan require no parking be provided at all (clearly in recognition of the dense, mixed-use, transit-supported character of the borough) and if parking is permitted, strict limits are imposed on how much can be provided. This tailoring of parking to context is now spreading to other parts of the City, with the recognition that less parking is needed where good transit options exist. This is a strategy that can reduce development costs, and make for more affordable housing. In fact, in New York the benefits of reduced parking requirements are targeted specifically to achieve these housing affordability policy goals.

How Can We Help You?

We believe an understanding of the tools of zoning can be key to good design and the character of value. Cooper Robertson stands ready to advise clients on what current zoning will allow and to draft and advocate for amendments to achieve better and more productive urban development.