The Sustainable Development Code

Working Paper

The Sustainable Community Development Code: Regulating a Sustainable Urban Land-use Patterns for a Post-Carbon World

James van Hemert

Introduction

Local government land-‐use codes must be reformed if they are to play an important

societal role in achieving a sustainable and livable post carbon future. The United States of

America’s 100 largest metropolitan regions include 9,000 cities, towns, and counties.i They

are failing to sufficiently change their codes to advance the emerging paradigm of

sustainability.ii Worse, their codes represent a significant barrier to achieving sustainability

goals. This chapter describes a comprehensive framework for land-‐use code reform, an

initiative of the Rocky Mountain Land Use Institute of the University of Denver. The

Sustainable Commuity Development Code is discussed, featuring the code’s rationale,

approach, and structure, as well as an explanation of one of the code’s chapters.

Our land-‐use patterns and transportation networks have substantially contributed

to the bloated size of our ecological footprint,iii which weighs in at over four times the

global average, which is itself already 1.3 times the planet’s carrying capacity.iv The low

density and limited-‐use character of our settlements is coupled with an almost exclusively

automobile-‐focused transportation system, and, together, they conspire to trap us in a

wasteful mobility patterns in which each household depends almost exclusively on a

privately owned vehicle. Our built environment represents 68 percent of our total energy

use, of which buildings represent 39 percent and transportation represents 29 percent.v

We use fossil fuels to generate 85 percent of our energy.

In the United States, the rate of urban land consumption over the past several

generations has exceeded the rate of population growth by several times.vi This increases

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the rapidly growing financial burden of maintaining an automobile-‐centered

infrastructurevii and increases our dependency on fossil fuels with all the attendant

environmental costs, including carbon greenhouse gas emissions. The Association for the

Study of Peak Oil and Gas (ASPO) projects global “peak oil”viii to occur in 2010.ix If true, our

entire human settlement infrastructure and its economic basis are in grave danger of

imminent collapse.x

Global warming induced climate change is already threatening the viability of

coastline settlements, increasing drought in the Rocky Mountain West, increasing the

potential for disease, increasing flooding, and threatening the viability of agricultural

production.xi Biologists predict that the current alarming rate of species extinction will

accelerate further under the combined effects of climate change, declining habitat due to

deforestation, agriculture, and urbanization.xii

Our current and future land-‐use patterns are substantially locked in place by local

growth-‐management policies and development codes which, despite using “smart growth”

labels, severely limit land-‐use choices and density, creating in effect, legally mandated low-‐

density sprawl. xiii

Breaking free from this balkanized local land-‐use code regulatory trap will be

excruciatingly difficult for psychological, social, political, and financial reasons.

Exacerbating the challenge is the fact that our attention is distracted by narrowly conceived

technical fixes for addressing climate change and “peak oil.” These fixes include, for

example, plug-‐in-‐hybrid cars, that will still require fossil-‐fuel based electricity.xiv Most

biofuels have yet to achieve a net positive return on energy inputs and represent direct

competition with global food supplies.xv Deceptively named “clean coal,” requiring carbon

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sequestration, remains uneconomical and faces enormous technological challenges.xvi A

hydrogen economy may be a very long ways off.xvii “Green” buildings are not necessarily

energy and carbon efficient.xviii These fixes fail to address the fundamental problem of

unsustainable land-‐use patterns, inflexible land-‐use regulatory regimes and an exceedingly

burdensome and dysfunctional automobile-‐focused roadway network. Additionally, local

politics, often excessively influenced by NIMBYs—“not in my back yard” activists), whose

ranks include “no growth” environmentalists—exacerbates the difficulties already inherent

in meeting the challenge of a more sustainable future.xix

The critical and necessary starting point to break free of this regulatory leg-‐hold is

comprehensive reform of land-‐use codes focused on the environmental, the economic and

the social equity elements of sustainability as the central paradigm.

Land-use code family tree

Understanding the nature of our current land-‐use code types, their history, and their

strengths and shortcomings is a necessary first step. We will be building upon and

reforming these edifices: they are not about to be disassembled. There are basically four

typological strains of land-‐use codes in operation: Euclidian, Planned Development,

Performance, and Form Based (as well hybrid codes that combine some aspects of each);

each of the four primary types are explained below in more detail. Most communities have

evolved over the years a hybridized form of zoning that incorporates elements to varying

degrees of these four types. An emerging fifth type of code is the sustainable code.

1. Euclidian

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In 1926 the U.S. Supreme Court in “Village of Euclid vs. Ambler Realty Companyxx” upheld

the validity of an ordinance to separate land uses into zone districts, specifying permitted

and excluded uses, prescribing minimum lot, area, and bulk requirement for all permitted

uses. Land uses are separated and sorted into groups based upon their perceived

compatibility in order to promote public “health, safety, and welfare.” Euclidian zoning, also

referred to as “conventional zoning,” remains the default base code in most cities, towns,

and counties. Euclidian codes have not been shown to be particularly effective, however, in

dealing with myriad environmental issues such as floodplain management and habitat

protection. Their focus on density maximums and the separation of uses have the

particularly pernicious effect of enabling NIMBY groups to prevent sustainable compact

and mixed-‐use urban development.

2. Planned Unit Development (PUD)

Planned Unit Development is a means of land regulation typically associated with large-‐-‐

scale, unified land development. Generally it promotes a mixture of land uses and dwelling

types, increased administrative discretion of local professional planning staff, and the

enhancement of the bargaining process between the developer and government

municipalities. This strengthens the municipality’s site plan review and control over

development. PUDs exhibit a much greater degree of flexibility granted relative to the more

rigid Euclidian zoning scheme. Although PUDs can address sustainability issues, their

highly negotiated and custom-‐designed character means that critical sustainability matters

are often inadequate or left unaddressed.

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3. Performance Systems

Developed in the 1970s in response to the overly rigid and often environmentally

damaging Euclidian zoning system, performance-‐based zoning takes as its starting point an

environmental carrying capacity model whereby the type and level of development must fit

the unique characteristics of the individual property. Lane Kendig’s extensive work on this

system has made his name virtually synonymous with it.xxi Essentially, the code allows

almost anything to be built anywhere, provided appropriate mitigation measures are taken

into consideration. The approach placed an emphasis on environmental protection hitherto

not present in any Euclidian scheme.

4. Form-Based

Form-‐based development codes, popularly represented by the SmartCode,xxii focus heavily

on the public realm and the type of urban form necessary to create welcoming public

spaces and walkable neighborhoods. It is based on an urban-‐to-‐rural transect urban

planning which defines a series of zones that transition from sparse rural lands to the

dense urban core. The transect is an important part of the New Urbanist and Smart Growth

movements. The code is highly prescriptive regarding urban form and has limited explicit

focus on environmental and natural resources. To the extent that many New Urbanist

developments rely heavily on automobile transport and serve the detached single-‐family

housing market, they often fall short of being truly sustainable. Furthermore, form-‐based

codes and the SmartCode in particular are incomplete and no community can adopt them

as a stand-‐alone regulatory ordinance.

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The Sustainable Community Development Code

The Sustainable Community Development Code is a holistic framework for local

government regulation of land use and the environment. Its core distinguishing feature is

the promotion, enhancement, and enforcement of environmental, social, and economic

sustainability. The meta-‐goal of the code is to reform land-‐use codes in such a way that

human settlements move toward smaller ecological footprints. This can be measured, for

example, in movement toward zero carbon emissions, zero waste, zero fossil fuel

consumption, improved prosperity, and greater social cohesion.

When we began shaping the sustainable community development code, we were

influenced by the work of Peter Brandon (University of Salford, UK) and Patrizia Lombardi

(University of Turin, Italy) as expressed in “Evaluating Sustainable Development in the

Built Environment.”xxiii Their work is heavily influenced by the Dutch philosopher Herman

Dooyeweerd, whose once obscure writings have gained currency recently in legal and

planning literature. Dooyeweerd developed the concept of modalities, an integrated and

holistic philosophy that can be used to explain the interdependence between aspects of the

urban environment. This concept can also be linked to the wider sustainable development

agenda. The holism of modalities allows an integrated view of the issue and assists in

explaining what is meant by, and what contributes to, sustainable development.xxiv

This overview covers the code’s distinct characteristics, describes the intellectual

genesis of its topical substance, lists the topics organized by major themes and explains one

of the code chapters to describe the code’s operational features.

The code’s distinct characteristics include the following:

1. A high degree of comprehensiveness;

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2. The integration of natural and man-‐made systems;

3. A progressive nature, drawing upon useful features of other code frameworks

already proven and in use:

4. It is based on sustainable comprehensive policy plans and long-‐term civic

engagement; and

5. It is tailored to local and regional climate, ecology, and culture.

Innovative operational features include a user-‐friendly web-‐based framework, the use of

hyperlinks to references and government web sites, commentary, and sustainability

measurements. A key organizational feature is the division of topics into three categories:

overcoming obstacles, applying incentives and enacting regulations.

Major topics of the code are organized according to the following:

1. ENVIRONMENTAL HEALTH AND NATURAL RESOURCES

1.1. Climate change

1.2. Low impact development and green infrastructure

1.3. Natural resource conservation—including wildlife habitat and sensitive lands

protection

1.4. Water conservation

1.5. Solid waste and recycling

2. NATURAL HAZARDS

2.1. Floodplain management

2.2. Wildfires in the wildland-‐urban interface

2.3. Coastal hazards

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2.4. Steep slopes

3. LAND USE AND COMMUNITY CHARACTER

3.1. Character and aesthetics

3.1.1. Visual elements

3.2. Urban form and density

3.3. Historic preservation

4. MOBILITY & TRANSPORTATION

4.1. Mobility systems

4.1.1. Complete streets

4.1.2. Pedestrian systems

4.1.3. Bicycle systems

4.1.4. Public transit

4.2. Parking

4.3. Transit oriented development

5. COMMUNITY

5.1. Community development

5.2. Public participation and community benefits

6. HEALTHY NEIGHBORHOODS, HOUSING, FOOD SECURITY

6.1. Community health and safety

6.2. Affordable housing

6.3. Housing diversity and accessibility

6.4. Food production and security

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7. ENERGY

7.1. Renewable energy: wind, small and large scale

7.2. Renewable energy: solar, including solar access

7.3. Energy efficiency and conservation

8. LIVABILITY

8.1. Noise

8.2. Lighting

Illustration of a code chapter: Food production and security

The topic of food production and security is a salient illustration of the code because

of the significant impact it has on our carbon emissions. Food production and security

touch upon other elements of sustainability such as human health, social equity, and a

healthy local economy. With the average morsel of food on our dinner plates coming from

1500 miles away, the food system is as sprawling and dependent on fossil fuel as our

cities.xxv

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Commentary, Key statistics, Goals,

The chapter, “Food production and security,” succinctly lays out the key issues and

rationale for inclusion of the topic in local community development codes. The American

food system, which, broadly defined, is the sequence of activities linking food production,

processing, distribution and access, consumption, and waste management, as well as all the

associated supporting and regulatory institutions and activities.xxvi In 2000, approximately

10% of all energy used in the U.S. was consumed by the food industry.xxvii Agricultural

activities were responsible for 7% of total U.S. greenhouse gas emissions in 2005, of which

livestock is a major contributor.xxviii Goals, which can be included in a code’s purpose

statement, are suggested and include:

1) The elimination of barriers such as restrictions on farmers markets, animal

husbandry and overly simplistic rural agricultural zoning provisions;

2) Incentives to encourage urban agriculture and increase access to healthy food;

and

3) The enactment of standards for sustainable large scale food production, access to

healthy foods, and limits on unhealthy food choices such as fast food restaurants,

the expansion of permissive animal unit regulations, and the broadening of

permitted uses by right in agricultural zones.

Within this framework of goals local development codes can play a significant role in

enhancing more energy efficient food production, increasing access to healthy foods, and

supporting a local agricultural economy.

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Measurement index

Suggested specific sustainable measurement metrics include:

1. Energy consumption to food production ratio;

2. Average distance a food item travels (the lower, the better);

3. Percentage of community demand met from agriculture within the community;

4. Average distance to healthy food (absence of food deserts); and

5. Energy consumption to food production ratio.

The matrix

The heart of the code is the matrix of regulations, levels of achievement, references

and commentary, and existing code examples from communities around the USA and the

world. Along the x-‐axis are categories of achievement ranging from good (bronze), better

(silver) to best (gold). The remaining columns on this axis include commentary with

references and exemplary codes with hyperlinks. The y-‐axis rows are organized according

to overcoming barriers, creating incentives, and enacting standards.

For this particular chapter, the matrix is further organized in accordance with three broad

categories: large scale commercial agriculture, small scale urban agriculture, and access to

healthy foods. Table 1 illustrates the matrix in a condensed form. The full chapter and

matrix may be viewed at the Rocky Mountain Land Use’s web site.xxix It contains hyperlinks

to the majority of references and local development code examples

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Table 1. Sustainable Community Development Code: Food Production and Security A. Large scale commercial agriculture—primarily rural counties Levels of achievement Bronze (good) Silver (better) Gold (best) Commentary and

references Code examples

Remove obstacles

Permit broad range of agricultural uses by right

Right to farm

Permit small scale farming in exurban & suburban areas

Daniels, Holding Our Ground: Protecting America’s Farmland (1997)

Larimer County, CO (silver)

Create incentives

Cluster subdivisions

Density bonuses for cluster subdivisions that preserve a high percentage of productive agricultural lands

Transfer of development rights or credits

Arendt, Randall. Rural By Design.

State of New Jersey (gold)

Enact standards

Permit farming in open space zones

True agricultural minimum parcel size

Agricultural land loss offsets

American Planning Association. PAS Report No. 482, Planning and Zoning for Concentrated Animal Feeding Operations

Silver: Marin County, CA

B. Small scale urban agriculture—primarily cities and towns Remove obstacles

Permit front yard vegetable gardens in residential districts

Remove restrictive standards for urban animal husbandry—e.g. chickens

Permit urban gardens to meet open space requirements

City of Detroit. Supporting Urban Agriculture.

Silver: Madison, WI

Create incentives

Density or height bonus for agricultural space or rooftop garden

Allow limited commercial or home sales of food produced on site

Stormwater management credit for agricultural land on site

Portland, OR (bronze)

Enact standards

Require fruit trees for landscaping

Adopt urban agricultural compatibility standards

Require purchase of community supported agriculture (CSA) shares for new development

Portland, OR. Study on urban agriculture. Diggable City

U.S. Green Building Council. LEED-ND, NPD Credit 16 Local Food Production. (gold)

C. Access to healthy foods Remove obstacles

Limit restrictive covenants by grocery stores -‐-‐

Permit farmers markets in a wide range of commercial and mixed use

Permit farmers markets in all commercial and mixed-‐use zone districts

American Planning Association. Policy Guide on Community and

Chicago, IL (bronze)

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districts Regional Food Planning

Create incentives

Streamline development review for supermarkets

Establish a special use district for grocery stores

The Food Trust’s Healthy Corner Store Initiative

San Francisco, CA (silver)

Enact standards

Permit display of fruit and vegetables on public sidewalks

Permit grocery stores in all business and residential zones

Limit the number of formula restaurants

Arcata, CA (gold)

Strategic success factors

Finally, it is essential to understand that successful outcomes require that

regulatory tools be grounded in solid comprehensive policy planning and accompanied by

competent administration and supportive programs. In the instance of food production and

security a regional food policy council and a food policy element within a community’s

Comprehensive Plan is recommended as strategic support. Within the realm of programs

and administration, examples of successful support include conservation easements to

protect agricultural lands, the use of tax increment financing and facilitation of land

assembly to attract grocery stores, and the provision of financial and technical assistance

for small retailers to offer healthy foods.

Conclusion

The code provides a dynamic, readily accessible framework for communities,

regardless of size, resources and culture, to immediately begin work in reforming their

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development codes along a more sustainable path. Dissemination, training and

demonstration pilot projects represent the next important challenge to reforming the

nation’s development codes.

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End Notes i Muro, Mark et al (2008). Shaping a New Partnership for a Metropolitan Nation. Retrieved April 20, 2009, from Brookings Institution Web site: http://www.brookings.edu/~/media/Files/rc/reports/2008/06_metropolicy/06_metropolicy_fullreport.pdf ii See Ziegler, Edward H., (2009). The Case for Megapolitan Growth Management in the 21st Century: Regional Urban Planning and Sustainable Development in the United States. The Urban Lawyer 4(1). iii Ecological footprint is a measure of human demand on the Earth's ecosystems that represents the amount of biologically productive land and sea area needed to regenerate the resources a human population consumes. See Wackernagel, Mathis & Rees, William (1996). Our Ecological Footprint. Gabriola Island, BC: New Society Press. iv Halls, Chris (Ed.) (2008). Global Footprint Network. Retrieved April 20, 2009, from Global Footprint Network. Web site: http://www.footprintnetwork.org/en/index.php/GFN/page/data_sources/. v Energy Use by Sector (2007). Retrieved April 20, 2009, from Energy Information Administration Web site: http://www.eia.doe.gov/emeu/aer/pdf/pages/sec2.pdf vi Ziegler, Edward H. (2008). American Cities, Urban Collapse, and Environmental Doom. Planning & Environmental Law, 60, 7, 9. vii The United States has a $2 trillion infrastructure maintenance deficit that increases by an estimated $100 billion each year. See Report Card for America’s Infrastructure 2003 Progress Progress Report: An update to the 2001 Report Card (2003). Retrieved April 20, 2009, from American Society of Civil Engineers Web site: http://www.asce.org/reportcard/pdf/fullreport03.pdf. viii Peak oil is the point in time when the maximum rate of global petroleum extraction is reached, after which the rate of production enters terminal decline. ix. The Association for the Study of Peak Oil and Gas (ASPO) predicted in their January 2008 newsletter that the production peak for all oil, including non-‐conventional sources, would occur in 2010. Note that estimates for the date of global peak oil production vary considerably due to the volatility of variables and that only in hindsight will the peak be clear. Retrieved April 20, 2009 from ASPO Web site: http://www.aspo-‐ireland.org/contentFiles/newsletterPDFs/newsletter85_200801.pdf. Note that estimates for the date of global peak oil production vary considerably due to the volatility of variables and that only in hindsight will the peak be clear. x Kunstler, James Howard (2005). The Long Emergency. New York: Atlantic Monthly Press. xi Climate Change 2007 Synthesis Report: Summary for Policy Makers (2007). Retrieved April 20, 2009, from Intergovernmental Panel on Climate Change Web site: http://www.ipcc.ch/pdf/assessment-‐report/ar4/syr/ar4_syr_spm.pdf xii Nearly 70% of biologists view the present era as part of a mass extinction event, possibly one of the fastest ever, according to a 1998 survey by the American Museum of Natural History. Retrieved April 20, 2009 from American Museum of Natural History Web site: http://www.well.com/~davidu/amnh.html . See also E. O. Wilson (2006). The Creation: An Appeal to Save Life on Earth. New York: W. W. Norton & Company. xiii Ziegler, Edward H. (2003). Urban Sprawl, Growth Management and Sustainable Development in the United States: Thoughts on the Sentimental Quest for a New Middle landscape. Virginia Journal of Social Policy & Law, 11, 26. xivAny significant growth in the use of plug-‐in-‐hybrid cars will necessarily require the use of fossil fuels as the proportion of renewable energy within the entire energy portfolio is expected to increase only slightly faster than the overall increase in energy demand. See Annual Energy Outlook 2009, Energy Demand Projections (2009). Retrieved April 20, 2009 from Energy Information Administration Web site: http://www.eia.doe.gov/oiaf/aeo/pdf/trend_2.pdf. xv McNeely, Jeffrey A. (2006). Biofuels: Green energy or grim reaper? Retrieved April 20, 2009 from BBC News Web site. http://news.bbc.co.uk/2/hi/science/nature/5369284.stm xvi The Illusion of Clean Coal (March 5, 2009). Retrieved April 20, 2009, from The Economist Web site: http://www.economist.com/opinion/displaystory.cfm?story_id=13235041 xvii Bossel, Ulf (2006). Does a Hydrogen Economy Make Sense? Proceedings of the IEE, 94 (10).

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xviii Dawe, Pat and Hootman, Tom (2009). Going beyond LEED: Carbon Accountability at the Development Scale. Presentation made at the 18th Annual Land Use Conference of the Rocky Mountain Land Use Institute. Retrieved April 20, 2009 from RMLUI Web site: http://www.law.du.edu/index.php/rmlui xix Ziegler, Edward H., (2009). The Case for Megapolitan Growth Management in the 21st Century: Regional Urban Planning and Sustainable Development in the United States. The Urban Lawyer 4(1). xx 272 U.S. 365 (1926). xxi Kendig, Lane (1980). Performance Zoning. Washington, D.C.; Chicago, IL: Planners Press. xxii The SmartCode is a unified development ordinance developed by Duany Andres and Elizabeth Plater-‐Zyberk. Retrieved April 20, 2009 from SmartCode Central Web site: at http://www.smartcodecentral.org/ xxiii Peter S. Brandon and Patrizia Lombardi (2005). Evaluating Sustainable Development in the Built Environment. Oxford, UK; Malden, MA: Blackwell Publishing. See Chapter 4 in particular.

xxiv The theory on modalities is articulated in The Philosophy of the Cosmonomic Idea (1935-‐1936) [De Wijsbegeerte der Wetsidee (Amsterdam: 1935-‐36)]. Herman Dooyeweerd was a professor of law at the Free University of Amsterdam. This writing is available in English in the Encyclopedia of the Science of Law Volume 1 Mellen, Series A, vol. 8, General Editor: D.F.M. Strauss, Translated by Robert D. Knudsen, Edited by Alan M. Cameron (New York: The Edwin Mellen Press, 2002). A detailed discussion on linking Dooyeweerd’s modalities with topical elements of the Sustainable Community Development Code may be found in van Hemert, James (2007). Sustainable Zoning: A New Imperative. The Rocky Mountain Land Use Institute. Available online at http://law.du.edu/images/uploads/rmlui/rmlui-‐sustainable-‐SustainableZoningFramework%206.pdf.

xxv American Planning Association (2007). Policy Guide on Community and Regional Food Planning. Retrieved April 20, 2009, from American Planning Association Web site: http://www.planning.org/divisions/initiatives/foodsystem.htm

xxvi Ibid. xxvii Martin C. Heller and Gregory A. Keoleian (2000). Life Cycle-Based Sustainability Indicators for Assessment of the U.S. Food Systems. Ann Arbor: University of Michigan, Center for Sustainable Systems. Retrieved April 20, 2009: http://css.snre.umich.edu/css_doc/CSS00-‐04.pdf xxviii U.S. EPA (2007). Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 - 2005. Washington, DC xxix Rocky Mountain Land Use Institute (2009). Sustainable Community Development Code. Retrieved April 20, 2009 from RMLUI Web site: http://www.law.du.edu/rmlui DRAFT

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The Sustainable Development Code