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MAKING ZONING MORE FLEXIBLE

Zoning is a crude instrument. It prescribes what cannot be done, but it cannot make anything happen. Its very rigidity may lead to less than optimal results. For example, assume a zoning district permits a certain amount of development on a given-sized lot within a given zone. If some lots are developed to the full amount permitted but other lots remain vacant or are developed to only part of the permitted intensity of use, the district may function quite well. On the other hand, if every lot is developed to full intensity, the congestion, traffic, and noise may be overwhelming. Yet a municipality can hardly tell a property owner not to develop as much as the owner of an adjacent plot simply because the other property owner was first. Such a position would carry little weight in court.

"Zoning saturation" studies have frequently shown that if a municipality were developed to the full extent that the zoning allowed, its population would be several times the present level. The population of New York City, the most densely developed city in the United States, has ranged between 7 and 8 million in recent decades. Some time ago a saturation study showed that if built up to the full extent allowed by the law, the city could have a population of some 30 million. A saturation study of Yonkers, New York, with a population of about 200,000 on 20 square miles, showed that the city could, if fully developed as the law permitted, have a population of about 600,000. This would make it the most densely populated city in the United States. In neither case is there any chance of such development occurring.

The disparity between actual and theoretical development does raise questions about the precision of zoning. Clearly, zoning is not the determinant of the structure of a city in fine detail if there is that much space between the overcoat of zoning and the body of development.

Zoning is vulnerable to the criticism that it severely limits the freedom of the architect and site designer and may thus lower the quality of urban design. Rules promulgated to cover substantial blocks of land are likely to be suboptimal with regard to particular sites or parcels.

Zoning has also been criticized for producing a sterile environment through an excessive separation of uses. The most influential criticism of this sort was delivered in the 1960s by Jane Jacobs.15 She argued that by excessive separation of uses—residents here, stores there, and so on—planners produce urban environments that are sterile and sometimes dangerous as well. They are sterile because of lack of variety of uses and building types, she argued, and dangerous because the single-use street is deserted for some part of the day and thus is an inducement to crime.

One area of which Jacobs spoke very highly is Manhattan's Greenwich Village. This is an old area, characterized by small and frequently irregularly shaped blocks and a great mix of uses. Most buildings are not very high, typically four to six stories. The same block will often contain a fine-grained mix of residential and nonresidential uses. In fact, many buildings have stores, restaurants, coffeehouses, and the like on the ground level with apartments above. The area has a lively street life which lasts into the late hours of the night, and it is generally considered a desirable neighborhood in which to live. Jacobs argued that the sort of diversity, charm, and activity that characterize the West Village is often blocked by the rigidities of zoning and planners' excessive concern with separation of uses. She argued that the area owed much of its charm to the fact that it had developed before the advent of zoning (zoning is not retroactive). Although Jacobs is not a planner herself, her criticism made many planners rethink the intent and effects of zoning upon neighborhoods. In fact, Jacobs's criticisms of zoning, which were radical in the 1960s, are now part of the standard wisdom of planning. Her ideas about the desirability of a fine-grained mixture of uses are central to the New Urbanism discussed in Chapter 10.

In April 1996 The New York Times reported a case in which areas of New York thrived only because they were able to escape the rigidities of the city's zoning law, partly because budget problems restricted the number of building inspectors available to enforce the rules. In the 1970s, alarmed at its rapid loss of manufacturing jobs, New York City limited the use of many thousands of acres so as to permit almost nothing but manufacturing. These acres included many blocks, particularly in lower Manhattan, of old manufacturing loft buildings that could no longer compete as locations for manufacturing. However, these buildings had another potential. The New York Times noted the following:

The lofts and warehouses of SoHo and Tribeca, where rents were cheap and huge open [internal] spaces were available, proved to be ideal for the hip hybridization of computer technology, art and residence that the city now crows triumphantly about as Silicon Alley.

This transformation was possible only because the zoning regulations were not enforced.16

In an effort to make zoning a finer instrument, a variety of techniques have evolved in recent years. These, in general, are designed to make land-use controls more flexible and more negotiable. The basic idea is that increasing flexibility allows the parties to land-use negotiations to bargain and thus realize what economists refer to as "the gains of trade."

Let us say that the land developer would like to do something that is prohibited under the letter of the zoning law. On the other hand, the municipality might like the developer to do something that he or she is not legally required to do. Why not have an ordinance so structured that some bargaining is possible? Presumably we need not fear that the municipality will lose out. If, on balance, the trade is not in the municipal interest, the municipality will not consent. A number of newer techniques follow.

 
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