Best Laid Plans: The Next Era in Zoning Codes

In 1931, the academic journal Annals of the American Academy of Political and Social Science published an article called “History of Zoning.” It was an ironic title; the instituted practice of zoning was barely a decade old.

The writer was Gordon Whitnall, the founder of the first City Planning Commission of Los Angeles who was the head of that city’s planning staff from 1920 to 1930 — he was, therefore, one of the forefathers of American city planning, and he was a starry-eyed admirer of zoning. He writes about the practice in gushing, vaguely religious tones (zoning, he writes, “has arisen out of the desire and the necessity to bring some order out of the chaos that has resulted from the anarchistic development of our cities”) and calls zoning a historical breakthrough in the millennia-old practice of building cities.

Whitnall’s academic thesis, though, is that zoning practices sprung rapidly from a startling finding in the 1920 U.S. census — that America had gone urban. For the first time, more people lived in cities than lived in rural areas, so the Gordon Whitnalls of the world set to work on bringing order to the chaos Americans had come to inhabit.

All this is only relevant because something similar has happened in Columbia over the last 15 years. Now COMO has gone urban. Denser development, taller buildings, more people wanting to live inside them — downtown has become more vibrant and more oriented toward nightlife, the arts, and entertainment. In other words, the city became a city. And correspondingly, we’ve spent nearly a decade fixated on zoning.

The zoning code that Columbia put in place in 1964, when the town had nearly 100,000 fewer people living in it, proved useless at stemming the tide of student and young professional housing that washed over downtown starting in the late ’00s. In 2007, in the Imagine Columbia visioning plan for the city’s growth, city officials suggested that the city council adopt a new zoning code to encourage development in line with the city’s historical character. The Imagine Columbia document encouraged council to adopt the new zoning “as soon as possible.”

Turns out, that meant March 20 of this year. City Council unanimously approved the new unified development code nearly five years after first hiring Clarion, a national consultant, to draft a new zoning plan for the city. From the beginning, the process was contentious and slow-moving. Developers, preservationists, city officials, and any other zoning enthusiasts with a voice seemed to have conflicting opinions about what was best for Columbia’s continued growth. Development projects continued to go up in the meantime — even now, two student housing high-rises are under construction downtown — but the city now officially has a plan. And nobody really knows what’s going to happen next.

Form and Function

If you’re the sort of person who values historic preservation in downtown Columbia, you probably consider John Ott a “good” developer. He started his work downtown by restoring and renovating the Paramount Building on Ninth and Cherry, taking it from a run-down relic of the mid-20th century to a successful mixed-use development that serves as a focal point of Columbia’s busiest pedestrian corridor. His company, Alley A Realty, is named after Alley A, which he turned into one of the hippest retail and restaurant strips downtown. He’s a board member for The District. He’s played a significant role in the successful development of the North Village Arts District. (His current project is a renovation of the Koonse Glass building, just north of Café Berlin, where we met for coffee.) Point being: He’s well-liked on both sides of the debate over development in downtown Columbia.
“You know, I don’t know how much I want to be quoted,” he says, “because what happens is you get repercussions from all this.”

A lot of folks involved in the years-long fight over zoning seem to be battle-worn at this point. Paul Land, a developer who was a constant presence at public meetings on the UDC, declined to be interviewed for this story, saying in an email, “I did my time in challenging the ordinances at P&Z and at City Council.” Mayor Brian Treece also declined to be interviewed, saying he didn’t have confidence that the issue would be covered fairly or accurately. Pat Zenner, the city’s development services manager and resident expert on the UDC, joked that the long-term stress forced him into the hospital for surgery, which he had one week after council approved the new code.

“I’ve been working in this area of the law since 2004, and they were talking about rezoning then,” says Robert Hollis, an attorney at Van Matre, Harrison, Hollis, Taylor and Elliot who represents developers in zoning and land use issues. “On the one end, you hear that the character of downtown is what downtown used to be. Those are sort of the anti-development, ‘Let’s keep it as it was and anything new needs to remain consistent with what existed’ — a.k.a. ‘No students.’ The other extreme is to bring as much activity as you can downtown, since it makes downtown vital. . . . If you want the sleepy downtown that used to be, then that’s what you think the character of downtown is. If you want a downtown that survives, you have to move more towards bringing in economic activity and physical activity.”

“Downtown is the most walkable part of our city. But walkability doesn’t work if the buildings are ugly.” — Councilman Ian Thomas

Even though those two extremes in the debate — no student housing versus as much student housing as possible — have been the animating force behind zoning arguments in Columbia, the battle about the UDC was about something different: the powers and limitations of form-based zoning.

Conventional zoning, from Gordon Whitnall’s heyday through most of the 20th century, is about land usage: by limiting what activities one could do on a certain piece of land, you could make sure, for instance, nobody built a factory in the middle of a neighborhood. Form-based zoning is based on appearance: in its purest form, it means that a building can be used for whatever the owner wants, so long as the building fits in nicely with all the buildings around it. The biggest change between Columbia’s old zoning standards and the new UDC is the institution of form-based controls in the downtown area.

Downtown was previously a mixed-use district, which allowed for a diverse crowd of business to co-exist there. But it also meant that, as long as you were using your land for an approved use — student housing, for example — you could build your building however you’d like. You could make it 20 stories tall, or use cheap building materials. You could make it look ugly if you wanted.

By using form-based codes, the city can more tightly restrict what buildings downtown can look like. Now, you can still build an apartment building in the middle of downtown if you’d like, but it can’t be taller than 10 stories or take up more than 34,000 square feet on the ground, and you have to have an “active” first floor — “So if you’re walking around downtown, you feel engaged with a restaurant, a retailer, or something active,” says Katie Essing, executive director of The District. “What folks are concerned about is when there’s a dead first floor. So if you have a housing development with first floor apartments and the shades are always drawn, essentially it’s just a block that doesn’t have any activity.”

The form-based controls include myriad other conditions — setback requirements, open space rules, some landscaping standards — but they’re all geared toward providing an active pedestrian experience. “I think most members on the council agree that student housing should be downtown,” Fourth Ward Councilman Ian Thomas says. “But we also believe it should be attractive and use those form-based elements. Downtown is our most walkable part of the city, but walkability doesn’t work if the buildings are ugly.”

One of the City’s major goals in rewriting the codes, Thomas says, was creating a simplified UDC, scrapping decades worth of accumulated one-off regulations for something sleeker and simpler to understand. Between the last major code overhaul, in the early ’60s, until now, “we cobbled in new regulations and didn’t peel away the old and had things that didn’t make any sense,” Zenner says. In some ways, the new UDC succeeds in that regard, but form-based zoning is also more complicated than traditional zoning — which means there’s more to bicker over.

Zenner says form-based codes are generally used to regulate specific areas, like downtowns, but some at the city, including Thomas, advocated for citywide form-based zoning. That led to a back-and-forth about neighborhood protection standards — essentially form-based regulations on development near residential neighborhoods — that threatened to derail the code in the late stages of its adoption.

At another late meeting, in early March, The District asked for an exemption to form-based restrictions for any lots downtown less than 10,000 square feet, arguing that they were too restrictive for smaller-scale development, like the kinds of restoration projects that Ott’s Alley A Realty specializes in. Zenner pointed out that more than half the lots downtown are less than 10,000 square feet — providing the exemption would effectively gut the form-based regulations as a whole. “I thought that was telling,” Ott says. He saw it as evidence that the City was more committed to enacting a form-based zoning plan than encouraging small development projects.

Zenner says that Columbia’s UDC actually deploys much softer form-based codes than other cities. “Some communities have architectural review boards that have more capacity to handle design-related elements, whereas in Columbia, we don’t have that kind of regulatory structure. Therefore our code, while it has very significant and specific design-related standards, they aren’t nearly as specific as in some other communities.” The regulatory standards are meant to be more flexible than the previous codes and easier to adjust according to the city’s market demands.

So years of give and take in both public and private arguments to the city have resulted in a sort of “form-based lite” zoning code — more streamlined and visually-oriented, but also unique and open to different interpretation. “It was an interesting thing to track,” says Lexi Klaus, another attorney at Van Matre and former director of government affairs for the Columbia Chamber of Commerce. “I know lots of people put in a lot of time and a lot of brain power. The question is how it’s going to be interpreted and how it’s going to be applied. I can’t say. What I do know is that the new code will be referenced a lot. When I was in my old life [at the Chamber], my understanding of form-based codes did not line up with this.”

Better Late Than Never

Since the adoption of the UDC, city staff and council have stressed that it is a “living document” — they fully anticipate problems and have processes to solve them. “Because it’s new to us and it’s new to the developers, we get stumped a little bit when an issue comes up and we say, ‘OK, where is this in the new code and how do we approach this?’” Zenner says. “And what we have to balance out is what is the intent of the code, how was it written, what’s the regulatory significance of what’s being requested for waiver or modification, and are we even authorized to do that?”

Conditional use permits ended up being another point of contention in the new code, facing both external criticism from developers and internal questioning from staff. Under the new UDC, permits are reviewed by the planning and zoning commission before being approved or denied by city council, whereas it was previously a decision from the board of adjustment.

“The response, not only to the public comment on it, but our own internal conflict, was that not all conditional uses within the code need to become political issues,” Zenner says. But because creating more thorough and concrete criteria for conditional uses would have further pushed back the adoption of the UDC, the city pushed forward with the understanding that they could improve the conditional use process at a later date. A living document at work.

“You know the enemy of the good is the perfect,” Zenner says. “And we could never adopt this code if we wanted to perfect it. And that’s one of the bigger issues that we, as a community, need to face, is that we always want perfect legislation. The code clearly represents that there are particular issues that have problems that are going to arise, and we’re going to have to face them head-on.”

Arguably the most painful part of the rewriting process, for everyone with a stake in the UDC, was how long the process took. After initially identifying the need for an overhaul in 2007, the city started looking for a consultant in 2013; their choice, Clarion, and their subconsultant, Ferrell Madden, spent January 2014 to October 2015 preparing a draft for the city. City staff took over in January 2016, combing through the document and gathering feedback and making tweaks. They presented a draft in April 2016. City council set a moratorium on any development downtown in May, which was supposed to last until the end of that year, by which time they wanted to adopt the code. The public meeting process began in late October, and that ended up running until March 2017.

“I represent developers, and developers want certainty,” Hollis says. “If you step in their shoes and you’ve got a project you want to move forward with, it’s not cheap, in many cases, and time is often the enemy. If it takes a year to get the project underway, it’s scary. So who’s going to be the first duck to jump in the water [by trying a development under the new code]? I don’t know.”

The code passed with relatively little fanfare. Council approved it unanimously. “It was kind of an anticlimactic end,” Essing says. “The final meeting was down to like 20 people who were there. Very small attendance and passed by all. I think everyone got their voices heard and I feel like everyone got the chance to talk about what concerned them.”

“At a certain point, just for operationalizing it, you have to draw a line and say, ‘This is where it is now.’ We were going to vote on this, and it was unanimous. That was encouraging,” Thomas says. “There was so much more good in there than bad. It was important to acknowledge that we’ve done a good process and this is going to be the law for now.”

“It was kind of an anticlimactic end. The last meeting was down to, like, 20 people that were there.” — Katie Essing, Executive Director of The District

Of course, those who were against the code still are; valid concerns still exist about its impact on housing prices in the city and the potentially negative impact the regulations might have on property values, especially downtown.

“Unfortunately, what I feel is happening here is that we’re failing in some instances to communicate clearly that there’s value in these new regulations for everyone,” Zenner says. “The areas we’ve asked to be set aside for conservation or other reasons are there to protect the qualities of Columbia that we all enjoy, and that has a monetary value to the individual who feels frustrated because ‘You just took 25 percent of my land area away, and how dare you?’ We’re also looking at how we can produce a set of regulations that actually requires us all to be good stewards of our land, because you can’t re-create what Columbia is.”

Identity Crisis

That, of course, begs a bigger question: What is Columbia? The 10-year fight over zoning has also served as a proxy debate about that bigger, messier question. Surely part of Columbia is the vibrant, pedestrian-friendly and locally-owned downtown that has developed since 2007 —but that downtown also probably wouldn’t exist without the student housing developments that went up because the cost was cheap, the profit margins were high, and the zoning rules were loose.

Speaking literally, Columbia is historic neighborhoods like East Campus and Benton-Stephens, which are protected by additional regulations from overlay zoning districts, but it also literally is McMansion-style subdivisions and public housing and strip malls and shopping centers and highways and industrial parks and anything else that falls within city limits. Even the tightest city planning effort would struggle to contain a city’s natural tendency toward chaotic, asymmetrical growth that Gordon Whitnall observed in the 1920s.

Columbia still has a lot of appeal for developers: a growing population, easy transportation access, a supportive economic development community. Ultimately, we won’t really know what effect the UDC will have on development until somebody tries to build something. “In most cases, both sides want what they think is best for Columbia,” Hollis says. “So everybody is better served if they look at the code and don’t try to go through it and find the loopholes, but rather try to help the city staff, the P & Z, and council interpret this rather than fight over this.”

Zenner worked in private development before moving to public-service city planning, and he says he’s still able to see things from the other side of the table.
“My practical approach to solving issues is that you need a win-win,” Zenner says. “We’re not here to dogmatically enforce regulation on the community. My role is to help facilitate development, and as the development services manager, I have to keep an open mind.”

How Columbia grows may ultimately have less to do with the ins-and-outs of the UDC itself than it does with the ability of the city and the development community to form a working relationship after a five-year public fight. And there will be more fights — over parking requirements, perhaps, or maybe more neighborhood protections, or any number of other issues. Maybe that’s part of what Columbia is too.