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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