May 30, 1995 - From the May, 1995 issue

Regulatory Barriers to Alternative Patterns of Urban Growth

The Poject Manager of Playa Vista project, Doug Gardner, shares the obstacles to large-scaled, mixed-use initiatives from developing the Playa Vista project. These obstacles include zoning, CEQA, and others. 

The suburban development pattern which has dominated post-war planning in Southern California has long been criticized by planners and architects. Until recently, these protests were no match for the perceived appeal of suburban living made possible by the combination of cheap land and personal mobility. However, as land has disappeared and freeways have become saturated, planners and architects have been joined by a growing list of advocates for alternative patterns of growth. 

In the recently released Beyond Sprawl report, the economic consequences of suburban development are examined, as well as the more familiar social and environmental impacts. The Local Government Commission, Little Hoover Commission, Sierra Club and many California municipalities have also become increasingly active in land use debates. 

Although the voices calling for an end to sprawl are varied, the alternative vision seems to be consistent. Whether described as "sustainable development," "new urbanism," or "neo-traditional planning," its characteristics include higher density and more compact development; a mix of uses; emphasis on the pedestrian environment and alternative modes of transportation; provision of local parks, retail, and community-serving uses; and attention to resource management and conservation issues. This more efficient development pattern creates self-sufficient communities which can accommodate growth with less per capita infrastructure cost and at the same time, it is argued, promote a stronger sense of community than its suburban counterpart. 

It is hard to argue with this vision. Its elements form the basis for virtually every pre-automobile city in the world. To suggest that it cannot work in Los Angeles, that Southern Californians would not welcome less time in their cars, if given the option, and that pedestrian-oriented mixed-use development can't succeed, is nonsense. It is not hard to understand how post-war Los Angeles evolved into its current form. Perhaps it was inevitable. It is possible, however, to envision the evolution of Southern California over time into something quite different. 

However, the transition from vision to reality will require serious attention to the legal, regulatory, and social considerations that can frustrate progressive land use planning. It is not sufficient to espouse new planning strategies without mechanisms to ensure their implementation by the private sector. At this juncture, most builders feel the perceived risks of non-suburban development appear to outweigh the potential benefits which is why most development, particularly badly needed housing, continues to occur in outlying areas.

The Playa Vista project has provided some insight into the difficulties associated with the development of large-scaled, mixed-use initiatives. Examples of the type of obstacles which have surfaced - and which must be addressed if this type of planning is to be implemented - include the following: 

Zoning and Codes 

The existing regulatory framework invariably discourages initiatives and experimentation fundamental to progressive land use strategies. For example, a good deal of post-war planning is based on restrictive zoning, which frustrates or prohibits mixed use development. Inflexible building codes, often more than 30 years old are imposed on projects. Additionally, individual city departments each have their own design criteria with no obligation or legal authority to compromise. These requirements may have merit when taken individually, but can severely compromise the public realm when considered collectively. It is difficult, for example, to design a pedestrian oriented public street once DOT, the Fire Department, the Bureau of Engineering, the Bureau of Street Lighting, and the Street Tree divisions have all weighed in with their requirements. These departments usually have no discretion to apply the code in any other way than is legally defined. 

There are other examples. In Los Angeles, the City will not accept dedication of any park less than five acres in size — smaller neighborhood parks are simply too difficult to maintain. Neighborhood parks — an important element of most mixed use planning — are feasible only if the developer accepts maintenance obligations (and often liability). Innovative plans may therefore require the dedication of the developer's resources to the negotiation of project features which should be encouraged. Most developers simply cannot afford this, especially if they are not motivated to do so. 

Regulatory Setting 

Mixed use in-fill projects are typically proposed within mature areas possessing complex, multitiered, single purpose regulatory structures. This setting usually contrasts sharply with the suburban regulatory framework which may have the purpose of establishing a growth-friendly environment. Additionally, the patchwork puzzle of competing jurisdictions characteristic of Los Angeles provides no mechanism for the reconciliation of conflicting mitigation demands, not to mention the constant threat of municipal litigation. In-fill projects also tend to be served by aging infrastructure systems, and developers are often requited to not only mitigate project impacts, but to remediate inherited but deficient infrastructure systems, Nollan and Dolan nnotwithstanding. 

CEQA

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The development community's frustrations with the CEQA process—time, cost and exposure to frivolous litigations—is well documented. But beyond these common concerns, it can be argued that CEQA poses special obstacles to progressive land use planning. 

CEQA has evolved into a legal process, not an informational process. The real vulnerability with EIRs is not in disclosing likely project impacts, but rather in not disclosing any conceivable impacts. The inevitable lawsuits which accompany the EIR for any sizable project typically focus on the adequacy of disclosure. EIRs are therefore usually crafted to present "worst case" scenarios, which may actually mislead the public and decision-makers in regard to likely project impacts, but provide necessary legal cover. 

This reality causes little or no credit to be given many features of urban mixed use plans which would otherwise reduce impacts. Transportation is among the most glaring examples of this dilemma. Reduced dependency on the automobile, as promoted by pedestrian amenity, jobs/housing linkage, neighborhood retail and services, transit, etc. is a fundamental goal of progressive mixed use planning. If these initiatives have little measurable effect in the EIR analysis, there is little incentive for the developer to pursue them. 

Builder Liability 

Higher density attached housing is the essential ingredient of urban mixed use development. It is efficient, contributes to good urban design, and can address a broad array of housing needs. However, builders are increasingly reluctant to construct attached housing due in large part to the zeal of homeowners' associations in pursuing sometimes frivolous construction defect litigation. This de facto class action threat makes single family detached housing a much more desirable route for most home builders.

Investor Resistance

Many marketing experts, particularly in California, strongly believe that the typical home buyer will opt for detached rather than attached housing even at the expense of a long commute. It is hard to know if this is due to genuine preference, or if it is the only alternative traditionally offered to the majority of home buyers. Trends suggest the costs and commuting burdens associated with the suburban prototype have led to an increasingly potent market for in-town attached housing. Unfortunately, the lending community, which listens closely to marketing professionals, is more prone to consider what worked yesterday for its "comparables," as opposed to what might make sense today or tomorrow.  Builders can't build what they can't finance. 

Community Opposition 

It makes good sense to pursue higher density development close to existing jobs in order to maximize utilization of infrastructure and provide the requisite critical mass to support transit, local retail, etc., while at the same time sparing rural areas from further development. However, the intensification of growth within already developed areas often results in vehement opposition from existing residents. Given the opportunity to develop outlying land, with a less intensive level of community opposition, the developer will most likely choose to avoid in-fill sites. There is of course no simple answer to this dilemma. The political will must be present to promote the intensification of our existing towns and cities. 

Until issues such as these are more fully understood, and adequately addressed, the private sector can't be expected to gravitate away from suburbia. The usual methods of discouraging undesired patterns of growth—restriction, extraction, and frustration—will probably result in higher cost and litigation. Government must find ways other than punishment to incentivize the developer to implement desired policy and to secure a profit in the process. Don't expect the developer to lead; the builder will go where the grass is greener, until the grass is gone.

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