Before I dig into the morass that is Downtown Zoning, I thought I would have a reverie on an idea that has been knocking around my head for a long time, zero based zoning. Now, thanks to the wonders of the internets, dozens more people can think about zero based zoning too. Zero based code would start with nothing–hence its moniker–and would measure success based on outcomes (I guess we could call it, “outcomes based zoning” too). What would happen if people could build for human uses rather than to the rules of the code?
First off, let’s take a look at the two other associated ideas of form based code and performance based code. Let’s do performance based code first.
Performance based code might sound radical, but it’s really pretty common. Developers and cities are always bartering using performance as the basis of a “deal” on a rezone. The city says, “I’ll give you X FAR in exchange for performance on Y concession.” The idea is that the developer can go outside the regulatory box in exchange for something that would benefit the public or offset the impacts (although often what the developer wants is a public benefit). Performance based zoning makes sense and is probably found, to some extent, everywhere. There is almost always going to be some negotiations on the edges of the code.
Form or context based code is a great idea too, and has been used to some positive effect. Form based code starts off with some broad requirements. Form based code doesn’t worry so much about standards or segregating uses, but allows a mix of uses and forms provided performance criteria are met. The performance criteria can be broad and push beyond the typical height and lot coverage requirements of typical land use codes. Even in Seattle, with it’s tentative approach to land use, this approach has been tried. In South Lake Union, the Seattle Mixed designation has tried to start with a sense of outcomes first, rather than building a regulatory box into which use has to be poured.
Both performance and form based zoning start with some set of commonly agreed upon standards or code language. There is still a sense in which new development has to conform to some pre-existing set of rules that try to steer the project toward compliance with rather than liberation from a set of prescriptions. Not so with zero based zoning.
I took the term “zero based” from the concept, usually a conservative notion, of zero based budgeting. Zero based budgets start with no carry forward from previous years. The argument for doing budgets this way is that a lot of things just get cut and pasted from one year to the next, increased by a few percent, and then approved without regard to whether those services or departments still need to exist. If we start every budget fresh, stuff that we don’t need anymore can get cut. Like many conservative ideas, this approach has become common practice among Democratic politicians.
How would zero based zoning work? Imagine a bunch of lots with common ownership in an area that is underdeveloped, maybe even industrial. The owner wants to develop the property and would have to seek upzones of the kind that we typically see in Seattle. Or she could try the zero based approach. She opts for the zero approach and here’s what would happen:
1. The developer would consult with the Department of Planning and Development and indicate her interest in the program;
2. An initial consult would happen with DPD planners, funders of the project, the developer, and a cross-disciplinary-departmental team to review the site and its potential for development;
3. After City staff and the developers team kick around ideas, an initial set of options are drawn up considering financial needs and potential regulatory road blocks;
4. Three site plan proposals are vetted for issues with the building code, land use code, environmental requirements, and all existing regulations;
5. The same three proposals are screened through at least three focus groups facilitated by the Department of Neighborhoods. The participants are chosen randomly but fit a set of important demographic indicators;
6. Based on steps 3 and 4, the proposals are revised, prioritized and forwarded to three public hearings;
7. One proposal is chosen by the Planning and Development Commission, legislation is drafted and forwarded to the City Council for approval. The Council can vote to approve or disapprove the plan, but they can’t amend it;
8. The legislation, if approved, takes effect in 90 days and construction can begin.
Two important notes. All of this process should happen in about 6 months. Tall order, I know. But it has to happen fast on the front end to make it worthwhile. Maybe it would take longer, but the goal would be to turn these proposals around very fast. Slippage could happen but time would have to be of the essence. To developers time is truly money, and the process would have to be kept to a predictable length in order to get their involvement.
Second, the code, you’ll notice, is only referred to after the proposals are generated. Zero based zoning would only go to the code to see what parts of the code need to be removed as obstacles or what pieces are mandated by other governments. There is no FAR, setback, design standard, or any other starting point other than good planning and feasible economics.
Here’s the fun part: How many people out there are going to like this idea? Zero. This idea is sure to inflame everybody out there. Here’s a who’s who of haters for this idea and why they’d hate it.
Developers: No matter what they tell you, developers are all about the bottom line. And there’s nothing wrong with that. But walking into a process in which they have to share proprietary information with a regulating agency is sure to be against the advice of any good land use attorney. The code, however flawed it may be, is a known evil. Walking into DPD empty handed with a bunch of good ideas is sure to make developers cringe. What if the process starts going south? What’s my escape plan? Now the neighborhood opponents are alerted and can organize against what I’m doing? Will this scare off potential investors? All good, legitimate questions.
The DPD: The first and most obvious issue for the City will be resources. Who’s going to do all this work? Is it legal? How can we sit, as regulators, in a room with developers and conspire to plan and develop a site with them when we have to regulate what happens there? What are we supposed to judge the proposal against if not the code? Again all really legitimate and good questions. Having a code to fall back on provides some predictability for City staff, too.
The City Council: They get one shot at this and are in the crowd with everyone else during the three presentations at public hearings. That won’t sit well with them. But the idea is to take away options not add more. Right now, what happens too often is that Council is put upon to address lots of concerns through the permitting of new projects. This often leads to bad outcomes, with projects getting larded up with all kinds of baggage that have nothing to do with the potential of the site in question. It raises the stakes for the Council politically, but it also allows them some distance from tougher decisions.
The neighborhood: Oh boy. Talk about coming unglued. This process would, at first, limit involvement to the focus groups, chosen randomly the way a marketing firm would focus group soap flakes or a new add campaign for shampoo. Seattleites chosen would sit in a room and get shown renderings and get a chance to say what they like and don’t like. But this wouldn’t be the usual neighborhood activists, and that is sure to create a lot of blow back.
Why would I propose something that everyone wouldn’t like? Because it forces everyone out of their comfort zone and into the zero zone, where the community can focus on future outcomes rather than fears based on the past. The bad part of standards and prescriptive codes is that they are, by design, about setting limits. Zero based zoning is the reverse: have no limits, see what happens, and if it works, codify it.
The trade offs here are big. Developers and DPD staff give up certainty and go into negotiations right away. But the benefit is a fast timeline with no City Council interference. And this approach does get neighborhood involvement. Developers need and want community input, but the City’s process favors angry people afraid of change rather than people excited about new development. This process ensures input from a broader range of neighborhood folks than the usual suspects.
The neighborhoods lose their usual voices. But what neighborhoods gain is a development process that keeps them in mind and produces something that is focused less on code compliance but on good design and functionality. This process could also activate people who haven’t typically been involved. Mayor McGinn coined the term, I think, frontlash to describe what happens with change. Often people get really upset about change before it happens, but once change comes people end up loving it. Zero based zoning provides for community input to what is going to happen not whether is going to happen.
Finally, the City Council gives up a lot of its authority to tinker with proposed land use changes. But they’re used to this already. Just look at the tunnel. It’s a done deal, right. The Council isn’t questioning or voting on the tunnel because it is a state project. Their job is to get out of the way of progress. And if something goes wrong they can blame the state. Zero based code allows the Council to cheerlead good things and frown and hrrumph at things neighborhoods don’t like without any political downsides.
If a great project happens Councilmembers can smile and say “I voted for that!” If people get angry and don’t like it Councilmembers can say “That dadburn Planning and Development Commission gave us no choice! We had to vote for something.”
Along with a newly empowered Planning and Development Commission, zero based zoning could help upgrade Seattle’s approach to zoning. What we need is a land use version of Robocop, armed with the most up-to-date planning ideas and concepts, but immune to the bullets of fear based politics. I don’t think my idea is going to take off any time soon, but maybe piloting something like it with one or two projects might help us find out if it could work.