An Even Better Way to Zone

In our latest episode we interview zoning attorney and author Donald Elliott about his book An Even Better Way to Zone: Achieving More Affordable, Equitable, and Sustainable Communities. Elliott’s work comes alongside other recent zoning books covered on the show, including M. Nolan Gray's Arbitrary Lines (arguing for getting rid of zoning) and Sarah Bronin’s Key to the City, his approach aligning with reforming zoning rather than eliminating it. Elliott explains that his earlier book, A Better Way to Zone (released nearly 20 years earlier), focused on broadly applicable zoning “basics” and common misunderstandings, while the new book reflects two additional decades of practice and is more targeted.

Elliott says An Even Better Way to Zone concentrates on four substantive, current priorities that appear across many zoning projects: enabling more affordable housing, supporting more sustainable development, improving zoning outcomes for disadvantaged groups, and—most notably—zoning for continued reuse and redevelopment rather than focusing only on what communities want “today.” He frames zoning as a governance system, not a wish list, emphasizing that it defines legal rights to use property and therefore needs to anticipate ongoing change, especially in built-out places.

Show Notes:

• Further Reading: 
  • Death and Life of Great American Cities by Jane Jacobs
  • The Image of the City by Kevin A. Lynch
  • The Color of Law: A Forgotten History of How Our Government Segregated America by 
  • Arbitrary Lines by M. Nolan Gray
  • Key to the City by Sara Bronin
  • The New Urban Crisis: How Our Cities Are Increasing Inequality, Deepening Segregation, and Failing the Middle Class and What We Can Do About It by Richard Florida
  • Cast: The Origins of our Discontents by Isabel Wilkerson
• To help support the show, pick up a copy of the book through our Bookshop page at https://bookshop.org/lists/land-use-and-zoning or get a copy through your local bookstore!
• To view the show transcripts, click on the episode at https://bookedonplanning.buzzsprout.com/

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Transcript

Stephanie: [00:01:00] Welcome back, bookworms. I'm Stephanie Rouse. I'm Jennifer. Hi, and we're the host of the Book on Planning podcast. In today's episode, we talk with author Donald Elliot on his book, an Even Better Way to Zone Achieving More Affordable, equitable, and Sustainable Communities. And this one is one in a string of zoning books that have come out recently.

We've covered, uh, several others in the last couple years that some of them are in line with Don's thinking on zoning of we need to reform it, but keep it. And then we also get in a little bit onto Emel and Gray's book, arbitrary Lines, which is the opposite approach of how we should get rid of zoning.

Jennifer: Yeah. And just in keeping with mentioning the other books that we have covered, uh, Sarah Bron's, key to The City was There too. [00:02:00] I think we cover the whole gamut of, zoning and zoning reform with Justso three books really. but this was very interesting. Don had written a book a couple decades,

Stephanie: about 20 years ago.

Jennifer: Yeah. on the basic principles of zoning. So it's really interesting to hear him come back 20 years later with all of the insight that he's developed since he wrote that first book.

Stephanie: Yeah, and he talks about how. In the first book, he was laying out some of the elementary principles, the basics of zoning, and how his last two decades of working in the field, he understands different concepts better. And book he says how, if you want the basics, go back to that original book. But he's not repeating any of that.

It's really picking up from where he is now and moving forward and really very much focusing on redevelopment. And he says that a couple times in the episode about how it's not. Zoning, blanketing, the cities really targeting infill and redevelopment sites, and overhauls in the zoning code that we need for supporting that.

Jennifer: Made my little economic developer heart happy to finally have a book that [00:03:00] really did focus on infill development. We don't have a lot of those in the genre, so let's get into our conversation with author Donald Elliot on his book, an Even Better Way to Zone Achieving More Affordable, equitable, and Sustainable Community.

Stephanie: Dawn, thank you for joining us on book down planning to talk about your book an Even Better Way to Zone achieving more affordable, equitable, and Sustainable Communities. Almost 20 years ago, you released a better way to zone 10 principles to create more livable cities. Now you're back with an even better way to zone, which sort of picks up where you left off.

 Can you give an overview of how the books differ and what prompted you to write the follow up?

Don Elliott: Well, they are very different books. Hopefully since it's been almost 20 years, I am, 20 years older and wiser. certainly I have done a lot more zoning projects since 2018 and, seeing more things and I do, address more situations in general, a better way to zone. The first book was a [00:04:00] more general, it was based on my understanding of what I saw as mistakes in zoning and mistakes in understanding zoning. were broadly applicable regardless of what kind of a code you had or what kind of a community were the new book an Even Better Way To Zone is more focused. there's a section on mistakes we make in thinking about zoning, but really it focuses on four substantive topics, which I think are very current or at. Almost all of our projects ask for improvements in these areas, and those four areas are, more affordable housing, more sustainable development, zoning outcomes for the disadvantaged, and then an overarching focus on the need to zone for continued reuse and redevelopment rather than just thinking about what you want today.

Zoning's a governance system and I'm more aware of that than I was 18 years ago. And I'm more aware of how people I think, don't understand that and, seeing it of the governance system rather than a wishlist for what you wish you could [00:05:00] get today would lead to better communities.

Jennifer: Well, I have to admit, I have better way to zone sitting on this bookshelf behind me. And when I was first starting out as a planner, my first job was a zoning administrator out in a rural county Nebraska. So it came in very helpful for me. So thank you so much for putting it out back then as well. speaking of how have our past practices like planning for development as it could be, not as land actually is, or as you say in the book, a pure form of planning created some of these zoning flaws that we were talking about.

Don Elliott: Well, I, I think one of the major problems is that we tend not to think about reuse and redevelopment of land. tend to apply planning, thinking to zoning problems. the two are linked. there's a whole podcast we could do on the differences between planning and zoning, but planning really draws on visioning of what the community really wants to have happen.

And we encourage people to be broad and to not be constrained by what they've seen today, but to bring new ideas to the [00:06:00] table and to envision a very different and better place. Zoning is a different thing. Zoning is your legal right to do or not do things with your property. many zoning ordinances, treat, and redevelopment land infill parcels, things that have already been built, one and need to be redeveloped. As if they can be regulated by raw land. When you are expanding the city or dealing with raw land, there are no utilities in the ground. There's a limited number of constraints. can think broadly and imagine and negotiate for what you want on an infill property and a redevelopment property, you're much more constrained. And so I think that's one of the things we failed To do right is to lead the public into a real understanding about zoning for infill and redevelopment parcels, and the fact that it has to be more flexible and a lot of things you could dream about if the property had never been developed before and didn't have neighbors don't apply. They're just not a reasonable thing for the government to do or to want to do.

Stephanie: So that's one of the major flaws [00:07:00] in a lot of our zoning ordinances is treating infill. And new development parcels the same. Are there any other more egregious flaws that you see over and over again in community zoning codes that they really need to address in the near term?

Don Elliott: Yes. most. Codes these days have gone down the road of having, too many discretionary approvals based on vague standards. That's the second thing that happens is that since we tend to think of zoning as, gee, what do I want to happen here? we tend to not do the hard work of saying, well, this or this range of things would be consistent with our plan, and these would not be. We instead say, well, why don't, why don't we have a conditional hearing on it? We're gonna come forward and have a public hearing and saying is what this guy is proposing is that you guys like that or not? that's a very expensive and time consuming way to do zoning. puts the builder. Even a builder who thinks they have followed all the rules and is proposing something, that is consistent with the plans and consistent with zoning [00:08:00] to go through kind of a popularity contest, a beauty contest on this. So that is another thing that adds a lot of time, expense, and uncertainty, and frankly, that kills innovative projects. on the one hand. Conditional approvals serve a purpose. You look at it more carefully and you see what you really think. No, who can argue against that? But they also do a lot of harm because they, they kinda say, you can never count on what's gonna happen. And, and we pay a high price for that in terms of getting zoning to take the community where it wants to go.

Stephanie: We have a, a lot of our bigger developments beyond just a small little site infill that are using our POD in order to do development. So every single. Big project has to go through planning commission, sometimes city council, and it's, it's always a, a bigger, longer drawn out process in order to get, a project through here in the city of Lincoln.

I'm sure it's like that across the nation.

Don Elliott: it is. And I have never had a client. and I have worked in 80 different communities writing codes, who said I'd like to use my PUD process [00:09:00] more. every one of them says, we'd like to use it less because it's unpredictable. It's time consuming. Not only does the original PUD have to be. and then recommended and then approved. Often in the interest of getting it approved, people make promises that they can't keep. So five years down the road you gotta go back and do it again to amend it. And a couple years after that, you need to go back. And I know PUDs that have been amended over 10 times each one of which is a negotiated trip back through city Council.

It's a terrible way to run a government or to get where you want to go. A better way to zone. I said I think PUDs are only really useful in two contexts. One is a master plan, big development, probably on the edge of the city because that's not cookie cutter. You can do a lot of innovative things.

I can do this over here, but I can't do it over there. I could mix the housing like this if you really wanted me to. There's a lot of flexibility to negotiate for good things because the parts are all moving and there are very few constraints. The other one they use is really complicated infill projects, but most [00:10:00] infill projects are not. Complicated. They're just overregulated. If you loosened up said it's important to have a system that will put this land into productive use again a way that is helpful to the community and okay with the neighbors, that is a value in itself. And if we took away some of the boxes that you have to check in some of the popularity contests, we could do that. So it doesn't deserve a PUD for a small infill property. It just deserves reregulating. Some of it.

Jennifer: We have two. I work in redevelopment. We have two redevelopment projects in Lincoln. One, it was a full industrial tract that we. Cleared out and have done redevelopment. We put a PUD on that. We refer to that PUD all the time. It was really helpful. then we have a small housing project wanted to put in townhouses but couldn't on the. Point eight acre lot that they had under the zoning code. So they put a PUD on it to change the zoning there. And it's a pretty great housing project. We should have just been able to move [00:11:00] through it, but it added four months to the process.

Don Elliott: we could do an entire podcast of my nightmare stories of the misuse of POD powers, because paused by zoning ordinances that didn't allow reasonable things to happen.

Jennifer: so you say in the book that zoning was designed to exclude that that was its original purpose. It's very effective at doing so. so how do we utilize a tool designed to exclude, to start creating that more inclusive development?

Don Elliott: That is the million dollar question. That is the hard question, and we've been struggling with it for a long time. I think my elevator speech, my value proposition on this is exclude. Less and do it more thoughtfully and with a clear understanding of who benefits and who gets hurt by this exclusion. we have overused the power to exclude and we, to be honest, we have made it kind of a popularity contest and people with more money and more time and more understanding of local government and more English skills have a much better. Ability [00:12:00] to exclude things they don't like from the areas around them. And one of the problems is when you exclude something from your neighborhood, the market doesn't just walk away. It tries to figure out where it can meet that market need. And so there is a fair chance that it will land in another neighborhood as close to the market demand as the guy can, or the woman can acquire property. that is not as able to defend itself against that, and that is, unfortunately zoning is really good at driving away projects, but it Doesn't kill 'em. The market still wants to do it. I do think some people imagine, well then it'll go to my neighboring city, which is first of all, selfish and kind of silly. that's not the game. The game is to, try to create a community wr large, not just your city where people can afford to live and thrive and have opportunities. So, oh, maybe it'll go to my neighbor and then that's their problem. Actually not an adult response to this question, but it could go to a poorer neighborhood or a less organized neighborhood your own community.

And that's not how Zoning's supposed to operate. It's not supposed to [00:13:00] empower, those with more to be able to keep what they have. Now, I admit in zoning's history, that's been exactly what we thought it was supposed to be there, but I don't think it was supposed to be that way. And I think in light of. Nolan was done in 1916. The Civil Rights Act was approved in 1964. We've grown up since then enough to realize that some of the original motivations behind this tool don't have to be the way we use it and shouldn't be the way we use it.

Stephanie: One of the more, well-known examples of Exclude Less lately is. Is the getting rid of single family zoning and it's, it's really highlighting how hard it can be to zone less because so many communities have built out these incredibly long, complicated zoning ordinances that are trying to put so many restrictions and exclude everything, and they're really catering towards the more vocal connected.

Populations and neighborhoods that have the ability to advocate and say, I want all these protections. I need to make sure I protect my property values. Therefore, we have to do all these other things. And so it can [00:14:00] be politically very challenging, I think, for some of these communities to try and, exclude less.

Don Elliott: Oh, it is very hard, and particularly in that context of allowing duplexes, triplexes, or anything other than single family housing in a single family zone district. you know what, Amazingly hard, and that's 'cause people are worried about change and they're defensive and, to some degree.

They're focused on what they think are the things that will increase their property values. I pointed out to a city in the last five, 10 years that even in the neighborhood that was most up in arms, highly educated. Neighborhood up in arms against any change to single family zoning that their neighborhood had 264 examples of duplexes, ADUs, and apartment buildings mixed in with them, and they love that neighborhood. if you love that neighborhood, then what about these things is inherently bad for your neighborhood? there is a fear of change. There's a lot of fear mongering that goes out there. There are two things that I think are optimistic. One is. Increasingly, and we're seeing this in Colorado where I live. When city councils have the [00:15:00] the courage to say, we need to do this, you know, you just can't keep 75% of your land out of play. That's what it is. It's 70 to 80% of land is single family zoning in many cities. So somehow we're gonna solve the affordable housing problem while keeping 75% of the land out of the picture.

We're gonna tie one hand behind our back and one foot up, and then we're gonna see if we can figure out how to dance, and how to do this. And the answer is. It's a silly way to do governance in those places have had the courage to do reasonable things. Often we're finding political movements. The yes in My Backyard Movement, others who will motivate people.

We are in the middle of a vote right now, a referendum in the city of Lakewood, Colorado, over whether the community's gonna reverse or uphold, their more flexible zoning system. I don't wanna predict how it's gonna come out, but 10 years ago there would've been no one out there campaigning for the changes. a very powerful lobby out there campaigning for the changes right now, and I don't think the people who are scared of these things I think they kind of expect that everybody will say, yeah. Let's not do this, and the [00:16:00] answer is no. there are gonna be people who see the bigger picture and are willing to organize and raise some money to push for this because it's in your, that he's good, even though you don't like it. and the community's a good writ large. that's one of the things that is happening that makes me optimistic about the potential for change.

Jennifer: Every time we have someone who shows up in opposition. Even to the duplex or the a DU portion of, that we're trying to make in Lincoln. point out to them that our country club neighborhood and our neighborhood in our city called, the Sheridan Neighborhood Long Sheridan Boulevard, they have duplexes, have, quads, and then they have the, kind of housing where it's turned inward and it's small houses.

Don Elliott: Mm-hmm.

Jennifer: cottage housing, all of that housing exists in your favorite neighborhood in Lincoln. Do you think it ruined the neighborhood? Nobody thinks that those houses are in our existing neighborhoods. It's just, like, go take a walk.

Don Elliott: I think the other thing that is lost in this discussion, and it's a hard argument to make, but the truth is, these changes to single family neighborhoods are [00:17:00] gonna happen slowly I have to wake up and say, I wanna build an A DU. Most of my neighbors would not wake up and say they wanna build an A DU or they have to sell their house to somebody who says, honey, we could buy this house and build an A DU. That happens slowly. And the fear mongering kind of acts like, well that's the game right there, isn't it? The whole neighborhood's gonna go. And the answer is no. Everything happened slowly in the past. It'll happen 'cause it's individual property owners and even if it is, God forbid, a bank or an institution, that's happens relatively slowly only as people decide they want their property to change or they want to sell. So it's a hard argument to make because on the one hand it should calm people down and say, look. Cities change. we see it happen all the time, and yes, it's unreasonable really for me to think that this neighborhood. Won't and shouldn't change. that's fine. the argument that it's gonna happen slowly, unfortunately, feeds the opposition.

Then why are we doing it? Yeah. You know why? If it's gonna happen slowly, then it won't solve the housing prices. Why? Why don't you go pick on somebody else? And so it's a hard argument to make, but the truth is it ought to be out there 'cause it is the truth. This neighborhood will likely, five years from now, [00:18:00] be very much. is today, it will be on the trajectory to help solve the housing crisis, and a lot of land will be in that category, but the impacts on any given block are likely to be minimal. So.

Stephanie: Yeah, we're about to amend our a DU ordinance here in city of Lincoln, and it had been so restrictive that you basically had to have the lot size of a duplex to be able to put an a DU on it, so almost no one could do it. It'll, I, I can't remember the exact percent, but it's like 70 or 80% of the lots in Lincoln will actually be.

Able to do an A DU after this. And there's all the, the typical pushback of, now there's gonna be ADUs everywhere, but as you said, like you have to want to do the A DU and a lot of people don't want that. and there's an ownership requirement to it. So one of the units has to still be owner occupied.

Not everyone wants to be a landlord and they don't wanna have someone living on their lot with them.

Don Elliott: Interestingly, that's been the trajectory in most of the codes I've had experience with. When you first adopt that, it has a lot of belts and whistles and ifs and ands or buts or conditions, which almost guarantee it's gonna happen really slowly. And [00:19:00] then within

And within

people come in and amend

a few years,

it turns out this is not a problem. not

has it happened slowly, so people are not upset about it, but the ones that are happening, people have more

experience.

and the fear is kind of gone, we already did this, now we're just removing restrictions from it. And you know what? They, they're fine.

nobody's bothered. The second time around that's happened in a variety of innovative zoning areas where it's going, let's, let's do it with a lot of safeguards and then like, alright, safeguards turn out to be unnecessary. 

Stephanie: So you talked earlier about one of the flaws being that we are zoning as if we're planning, and one way we do that is trying to zone to a picture, as you say in the book. And I was just in a meeting like a week or so ago as I was preparing for this interview where we were talking about a redevelopment site, and the next steps are to collect imagery of what we want the site to look like.

 So why is it bad to zone to a picture?

Don Elliott: Well, I like the use of pictures and development codes. At the beginning of my career 30 years ago, we didn't do 'em very much. Now we do 'em 'cause they do help to explain scale. tall would the building be with respect to. Other buildings [00:20:00] around it. how much of the lot would it occupy? Is it gonna be required to be at the front or back of the lot?

Is the parking gonna be behind the building in front of the building? So diagrams are usually helpful, although they usually have a little footnote saying the, the picture is not regulatory. You know, you can't come in and say it doesn't look like that. so they're very helpful as a tool to communicate zoning visually, and I like that.

we use them more and more and more. The problem is often it is understood by the public, especially. redevelopment and infill process as this is what's gonna happen. I had a developer tell me years ago, and I think I included this in the book, he said, Don, you know, development in general is net phishing.

you do something the market wants to do and you catch a percentage of the market. Redevelopment is spearfishing. You have to find an idea the reuse of this property that someone else has not found that works around the utilities, and it works around the terrain change or the soil issues, or the inadequate frontage or whatever it is, or the fact that it has an unpopular neighbor.

They have a neighbor. That means no one's ever gonna use this for the most. Popular use because look what's [00:21:00] next to it. And that predates zoning and it's still there. of constraints on redevelopment. And my real objection to zoning to a picture is that it leads the public to think that's what's gonna happen. And especially in redevelopment, reuse, and infa, it's fairly likely you cannot draw a picture today. Of what will happen because it's gonna turn on a creative developer finding something the market will support that someone else has not thought of before, that if it could be done the way everybody wants it to be done, it would've been done already.

There is something about that lot makes it hard and hard means you need to find some flexibility to do it. And I'll just make this point again, study. After study, after study out there has said, you know, why does Don talk so much about redevelopment and infill? it is the most sustainable way to develop and it is the most equitable way to develop.

That doesn't mean our cities won't have to expand, but right now the finger is on the scale making it easier to go out and expand into raw land, and it shouldn't be. it's kinda like the argument that seat belts don't save lives? [00:22:00] You know, it has been disproved. There is not a good study out there that says Infa is not more sustainable and more equitable and could be more affordable in the long run because the housing and the transit collectively are cheaper than. cheaper house in the suburbs where you have to drive further. All of those studies say that we need to be doing this. The problem is we make it harder than raw land development, and one of the ways that we compound it, I think, is by leading the picture to say, we will only let this be used if it looks like this.

So pictures are better at new development not an infill parcel. something that is unconstrained than they are in the context of, of redevelopment and reuse.

Jennifer: So we've talked about a few of these already, but you put forth the term in the book the a negative trifecta. So what is this negative trifecta and how can cities avoid such what you call a lose, lose, lose situation? I.

Don Elliott: Well, most people when they think about zoning first, they think about citizens and [00:23:00] to some degree elected officials and appointed. They think about the map, and after that they think about the rules because the map just. Tells you where the different sets of rules apply. So they think of those two things, and I call zoning procedures, the rezoning process, the process of a getting a conditional use approval, a site plan approval, a subdivision approval.

 Subdivision is really a different area of law, but you know, how do I get to, yes, how do I get from a good idea that I think. You should like, to a permit to go forward and build this. I call the unsexy corner of zoning. 'cause nobody wants to talk about the, how the cogs turn, how the wheels turn or they get gummed up, or how many boxes you have to check to do it. But that is as important especially to affordability and sustainability. And, and I would say equity, it's important to all three because the negative trifecta means when you add time. To an approval or money to get through the approval or uncertainty as to whether you will get the approval or on what conditions. You drive away good [00:24:00] ideas. so you get the innovative guy or woman who thinks they've got a more sustainable energy, efficient or water efficient project, to bring forward that you haven't seen before. they have to go through. A month long, six month long, nine month long process to get to.

Yes, a whole lot of 'em are gonna walk away. It's not worth it because most of all the uncertainty, it's a new idea. I don't even know if you're gonna say yes to the idea. So all of these things drive away the innovation we need to get beyond the way we've done things in the past. But they also hurt small businesses, women-owned businesses, veteran-owned businesses, businesses owned by those with physical or mental handicaps. All of these things have less financing, less ability to stand the course and to have a month delay. and again, this is one of these things where it's facially neutral language, but we know who gets hurt the most. By time, expense and uncertainty. It's not the big people, they just roll it into their national portfolio and you get a monthly call and say, sorry, they put us over for another two months.

We'll have to carry the land with no revenue. Sorry, I [00:25:00] haven't hit my quota for the month, but the corporation can uphold it. Small business. Can't do that. I've only got one project and if I can't be sure it's gonna go through, or I've only got two projects and I can't cover the extra costs of a delay and uncertainty on this project by my one other project, and so I won't be doing business with you.

it's just not good. Governance planning is visioning, zoning is telling people what is acceptable to get the community where it wants to go. Negotiate it and decide it ahead of time and put it in your code so that people can invest knowing that they will get what they bargained for. That if I do X, you will give me an approval for Y. And that opens the door to a lot more businesses and a lot more minorities and other people to participate in it. But it also means you're gonna get more innovative ideas I do this with incentives. I tell 'em, just write your code, you give me x, I will give you y. We know that it may not be a popularity contest, but that is the deal that will bring our community where we need to be going.

Stephanie: Well, in an alternate approach to. Solving that problem is to just get rid of zoning altogether. And we've had Nolan Gray on the [00:26:00] podcast to talk about that approach. What are the main problems with this, related to land use regulation?

Don Elliott: So that, it's a great question. I like Nolan's book, arbitrary Lines. I recommend people read it. I think he makes a, compelling case, a stronger case even than I do about the problems of zoning. It has lots of problems. in the book, I identify four things that I think are fundamental issues.

restrictive covenants are private law. They form a club among people who agree on what this area wants to be. It's not public law. Zoning and subdivision and affordable housing incentives are public law and they're made in a public context where you have to debate things you have to comply with some federal and state requirements, group homes being an example. just say no to group homes. The Fair Housing Act says you can't do it. And so cities are forced into, well, where are we gonna say yes? Then? How are we gonna say yes? Many restrictive governments say no group homes. They never went through a public review that's unenforceable, but they were written privately they say things and they are intended to do [00:27:00] things like keep out poorer people and smaller houses wouldn't survive public scrutiny if they were debated in public as a public policy, their private. Contract that create private clubs. So one problem is simply they're designed to be even more exclusive. Zoning was designed to exclude, were covenants. And as they're currently used, they're usually saying, oh, all the things that zoning won't let you do, we're gonna give you another list. Beyond that, you can't not have irrigation on your land, on your property.

You can't have an outdoor clothesline. You can't paint your house purple. one of the problems you raised earlier is how do you take a tool that's designed to exclude and not make it exclude? Well, here's another tool that's designed to exclude. it's done without public scrutiny, basically. So you'd have to create a system somehow where there was, I think some level of public scrutiny so that people weren't free to just write whatever discriminatory or exclusionary rules they wanted to. that's kind of two of the things there. They're more exclusive and they're done outta the public spotlight. You know, I also have a hard time envisioning how you would get 'em to cover an entire community. you know, right now [00:28:00] covenants are only to be honest. Newer and wealthier communities 'cause they were put on before the land was developed, had to fit retroactively on stuff that was already developed.

Plus deal with new stuff I mean, the government would have to say, thou shall a system of private club rules in your area. But they'd have to say that for all neighborhoods. And again, in my mind I've never seen a city in which restrictive covenants cover all neighborhoods. I'm not even sure that's true of Houston.

 the The final reason is, uh. DIC covenants are usually enforced through the courts, meaning you have to take somebody to court and enforce. That's expensive. It's time consuming, it requires you to sue your neighbors or sue people in your club and that's hard to do, and if you don't do it over time. The courts will deem that you have been, inconsistent in your enforcement of your rules. And we're not going to enforce things that you don't even care to enforce consistently. We're not gonna let you pick your victims, as, as they violate your laws. So yes, I suppose if you put a gun to my head and said, invent a system of restrictive covenants that would, [00:29:00] somehow cover the whole city through public review, that would have some sort of administrative non-judicial enforcement process. and it wouldn't be as exclusive or have as many bad impacts as current zoning. Uh, if you told me I had to do it, I guess I would write it, but I have never seen it. And I think those are the four reasons why we won't see it actually.

Jennifer: Yeah. In our conversation with Nolan, I asked him about, you know, you enforce, who enforces what are your plans here? make a comment that potentially we should have some easier way to enforce. I'm like, so you're just creating zoning. But calling it something different that doesn't make any sense either.

Don Elliott: that's the thing. Cities would. have to get involved in enforcement , and these days cities don't want to be involved in enforcing private club rules. again, you know, I don't wanna be narrow. If you told me to invent one, I suppose I could write an article and do it, but it would have a whole lot of wishing about things in the future that I just don't see happening.

Jennifer: Exactly. So, I walk through my downtown of my community, pretty regularly since I am a redevelopment [00:30:00] planner and I'm helping to redevelop downtown. and I see so many empty first floor commercial spaces. It's heartbreaking, honestly. you make the argument that poor zoning has contributed to this, market mismatch.

 So how did that happen, and what can planners do to reduce that mismatch?

Don Elliott: Well, I think zoning has absolutely contributed to it. There's a sexy idea out there called you should have multifamily with ground floor retail next to transit, all of which are true statements. They're wonderful. We love the image. If you wanna get the public on your side, show 'em a picture of transit running by people drinking lattes outside of an attractive multifamily building, eating at the cafe So it's a great idea. is the market can't support nearly as much as we have required to do. We have applied it broadly, way too broadly. And the example I'd give you is that years and years ago, before this was a big trend, when I worked for the city and county of Denver, considered should we require ground floor retail uses in all of downtown, about 200 acres had at that point. 25 or 30 million [00:31:00] square feet of office uses that were healthy restaurants, everything else. And we said, what's the market for ground floor uses among all the people who live and work downtown? And if you know Denver, you know that the downtown is basically between 14th and 18th Street. It's about a mile long. And 16th Street is the pedestrian mall that runs down the middle. And the answer to the market study was you could force it on the 16th Street Mall in a half a block in either direction. On the side streets, there's enough market demand for that, not the second half of the first block out, and definitely not the second block out. So even in Denver where they did a study and they, were careful about it. So there are two or three things. A don't require it everywhere. When we think about that image of cafe under a multifamily, it's cool, if you go to the places we like, and I'm gonna name some, and some people say, you know, they don't like it.

But, if you go to Vienna or. Paris or New York or Chicago or places where you like the urbanism. There's lots of buildings that have just apartments. they don't have ground floor retail. It's a mix, and the answer is they didn't force it to happen and then it [00:32:00] stays vacant because they allowed the fact that yes, there are probably frontages. now requires it on certain frontages that you really wanna be pedestrian active. But those are very limited. And more commonly, we have just said do it everywhere in this zone, district or everywhere in way too big an area. And so we have forced people to do it. There are some halfway solutions.

You know, A, the big, big one is be thoughtful. I use a quote in my book, I think or in my class , there's nothing more dangerous than a good idea if it's the only one you have, just do this because it's the cool thing to do. Apply it selectively. And what's happened over time again as a second order ordinances that people have lightened up and said, you don't actually have down for retail. Here are the things you can't do on the ground floor. Can't do a parking garage. do a stairwell, can't do a utility room. You figure it out. And that's why we have so many exercise rooms they're not being used for exercise. But that's what was left to do. But my point was, if you are worried about blank walls, you can prevent that. You can't make the market occupy space, that there's no market to happen. So why would you try.

Stephanie: [00:33:00] your book outlines a number of areas where zoning codes need to be updated to better support, affordable, equitable, and sustainable outcomes. And you just gave an example in this last answer about how getting rid of the requirement for commercial first floor broadly applied to zoning districts and And we actually have that.

I was just thinking one of our commercial districts requires first floor commercial, and so it's everywhere in that district. You have to do that. We're not very selective. Are there any other code provisions or common elements that you see in cities? Kind of going back to that flaw question, but more specific zoning regulations that you've seen that you wish communities would just remove tomorrow?

Don Elliott: I'm tempted to say parking requirement 'cause that's the sexy answer today. and to my somewhat surprised, more and more cities are doing it, it's a little known fact that downtown areas, half of American big cities have had parking minimums and half have not for years, Some never had 'em. I can't tell the difference in a dense downtown area, the market will handle this. If you don't have enough parking, they won't sign the lease. And if you don't have to have it in your building, they can be next [00:34:00] door can. You can sign a lease with the parking garage. It'll figure itself out the downtown areas. It's when you get into smaller areas and neighborhoods that it gets below, however. This is another area where I am surprised that more and more cities are doing it. My home city of Denver just did it. first of all, they get rid of commercial ones 'cause that doesn't really scare people. They're persuaded that probably the market can figure this out and then they get rid of residential. Much harder sell to do, and yet. The early reactions are, you know, the market seems to be handling. Remember, not requiring it doesn't mean the developer won't put it in. They put in what they need. I will say this, after 40 years, 35 years of writing development codes. The parking standards in our zoning codes are all over the map. It says if somebody threw darts at a dart board, this is not rocket science. There are books out there that say you need this much for that use. have never had a client write that into my code. They have asked me, say, compare us to other cities that you think are comparable in economics and demographics and activity [00:35:00] levels. us the lowest number. You can that you think will work, and that's what I've done for years. But the bottom line is, in the course of doing that, you look at the codes around the country and say somebody was smoking something, because this makes no sense. this is a technical exercise.

These things should cohere over time and it's coherent enough for somebody to write a book about it. There are national parking standards. But I have never been asked to write them into a code, I'm sorry to go off on long-winded. My number one candidate would be discretionary reviews based on vague criteria, sending people into a popularity contest based on words like compatibility, harmonious, distinctive, high quality. they're just asking for an argument. And some neighborhoods have the time and money and ability and understanding local government to engage in that argument very much effectively to say, no, it's not compatible. You say it's compatible. I say it's not compatible. And others have much less ability to do that.

that's why even though it's part of the unsexy, procedural part of zoning. Oregon [00:36:00] has been trying to do this for a long time, so have some of the New England states. It turns out it's very hard to define what is a clear and objective standard and yet can get a lot closer to it than we have today. If you say compatible, what is compatibility Say that roof shape. that massing of the building. Say that location on the left. Say that materials say what? Is it that you could write down? Well, I'll, I'll know it when I see it is not a good principle for governance and it just leads to an unfair, not only a time consuming debate, but one in which we tend to perpetuate the inequalities in our society.

So that's my number one thing. Just get those words out of your code. Do the hard thinking now, rather than saying, well, we'll just, we'll, we'll debate it every time it comes up. 

Jennifer: I feel like you just took like a machine gun to our design committee standards.

Don Elliott: you know, there's at least one state. I'm trying to think of which one it was. It might have been Montana, but I can't remember which one recently passed a state law that said you will not turn down housing based on design standards. you can do other things. [00:37:00] In inadequate traffic, inadequate water, inadequate sewer, inability to serve, but you can't say standards because, you're using that to kill valid projects.

Similarly, the state of Connecticut has said you can't turn things down based solely on a statement that they don't match the neighborhood character. You can say that, but you better have another more objective reason 'cause that's what you're doing. Every single one is a good use of land and a source of housing, and somehow they all failed to meet neighborhood character.

So we're just gonna say, we're not gonna let you do that anymore. 

Jennifer: one of the things that I really appreciated is that over and over again you've talked about how you, Speak with developers, get their perspective. I think that there's kind of a, a crosstalk between the planning profession and the developers that actually have to do the work of building cities. So in all of the interviews that you've taken on and all the feedback that you've received from developers, what do you think is the one takeaway that planners should think about when considering redevelopment opportunities from the development perspective?

Don Elliott: [00:38:00] From the redevelopment perspective, which again was one of the intended focuses of my book. and a good chunk of this interview, allow for the unexpected and allow for the administrative flexibility for staff do their job, to do the best they can, to work around the site constraints and have the site get put into use for a development that is consistent with the comprehensive plan. it administratively, but. I use this example in the book, the smaller the site, the harder it is to redevelop. So if you, for example, frequently I write codes that say, things happen, not every piece of land is a square that's flat and well drained and served. So staff has the ability to vary the following list of seven or 10 or five or two standards, parking, height, setbacks. Open space lot coverage by 10% for the following reasons. If they find that the utilities are in the way, you can't get a tree there. The arborist says the tree won't grow there. You have to give a reason that is unique to that site, but we [00:39:00] don't wanna make the guy go get a variance.

 That takes another process, and they'll get the variance. They'll just have to file another application fee, go on through another public. It's a reasonable thing to do, allow staff to approve it. cause is this. So a 10% variation in a list of things for specific reasons is a very common provision in newer codes. Albuquerque went further and said, if it's a small lot, you're gonna need 15% or 20%. A small zone, a district with small lots and small zoning setbacks. 10% turns out to be six inches. That didn't do anything. So they actually did the expert thinking to think, we want our staff to have administrative flexibility to make reasonable decisions without going through another hearing, a zoning or a variance hearing.

Uh. just to make that decision, that is the decision. We approve you, notwithstanding a slightly shorter setback. but we are not only gonna build that into our code, we're gonna build in more flexibility for the smaller lots and the places that are particularly hard to redevelop and put into use. 

Stephanie: Those smaller lots really stand out. We have a ton here in [00:40:00] Lincoln that either never developed or. There was a house, it got tore down. It's vacant, but clearly all the other lots that are less than the required width have houses on it. The houses are fine. There's not a detriment to public health, safety, or welfare, but the code is so blink, it's everything.

So a standard lot versus an infill lot here, we could have another house on that lot if it was more flexible, like the 10% waivers in either direction or 15%.

Don Elliott: And, and some codes have written provision saying, if the problem is that your lot is too small by 10%, the side setbacks and the roof setback go down by 10%, your lot's too by 10%, blah, blah, blah. So you can actually build it in there in numbers, or you can just say, staff, we hire planners to do their job.

we city council hereby approve a code that say, this is your job. You know, don't say no unnecessarily and don't engage in an individual neighborhood neighbor, but to neighbor battle over a foot. It's just a really poor use of taxpayer dollars. And so, we need a house. five years from now, no one will know that [00:41:00] that one foot was gone. You know, no one will know It makes no difference to the future of the city. 

Jennifer: I say that with almost every complaint, like some of your favorite places in cities you would have complained about they were originally being developed.

Don Elliott: Yeah.

Jennifer: knock it off.

Don Elliott: one of these, and you haven't asked this question, but one of the points that's become, I dunno why it took me so long to be able to articulate it, but I have in the book a little bit and that is that our systems are kind of set up for people to object to change in general and find a reason to object.

I understand it's human nature to be afraid of change, but it's also part of good governance to educate people about the fact that change happens and we're trying to write rules that allow it to happen reasonably. And no, you will not be involved in everything that happens. That's not how cities work.

But the other thing is that people adapt. The thing that was terribly objectionable it was approved. If you go back into the neighborhood, so some people have moved in, some people have moved out, some people live there. I almost guarantee you, you walk door to door and take a survey. Some of the people who said [00:42:00] I fought it, but you know, it's okay. It's fine. It's surprising how often that happens with group homes. I hate it. You're killing my property values. And without saying those people, I really don't want those people on my block. You go back and say, how are they doing?

Say, actually it's the best kept property on the block. We got no problems at all. I'm a little ashamed that I objected to this. The planners and the operator told me they would do a good job and they've done a good job. I was afraid of change or I was motivated by many words. I'm not trying to be difficult, but I'm trying to say. Governance involves educating people about the need for change, and people do adapt and they change their minds about the acceptability of change after it's happened much more than they do when they can't envision it and haven't experienced it.

Jennifer: First of all, thank you for allowing Stephanie and I this cathartic conversation to complain about all the things we hate about zoning, is booked on planning. So what books would you recommend readers check out?

Don Elliott: Well, the book has a full list at the end of the books that I like about, zoning and planning, but primarily about zoning. I'm gonna it in two [00:43:00] categories, old books, you know, everybody should read Death and Life of Great American Cities. that is fascinating and it's talked about over. And empowering planners too much to tell you what's good and bad for you. we've been through a reaction where we've gone the other way and kind of said, well, no, whatever the planners say is just advice and what the neighborhoods say is what's good planning But that book started the debate.

So that one, an Image of the City by Kevin Lynch, I realize, it's very old book, but it's about how people perceive the cities. what they notice, what they don't notice, and how they form their opinion of whether it's a good place or a bad place or an interesting place. And I really think planners should focus more on those things 'cause that is how things are perceived and that's the places that are in that book are worth extra attention.

I call 'em in my book, capital P, places they're worth. Additional thinking and regulation as opposed to small p places, which doesn't mean they're unimportant, but means you can take a lighter hand and that is most of most cities. in new books, the color of law should be must reading for everybody who goes to kindergarten.

No, that's not true. Everybody who [00:44:00] graduates from college for certain, I do recommend you read, Nolan Gray's book, arbitrary Lines. It's a good book. It makes a compelling argument. I don't agree with his conclusion, but that doesn't mean it's not a very good book. Sarah Bron's, key to the City.

, I found, Richard Florida's the New Urban Crisis, an interesting book to read. It's disturbing, but his thinking has evolved from his original book. and so, it's interesting to see that evolve and then, cast probably Wilkerson's book on the stratification. The older I get. more I am aware of the intersection between planning, zoning segregation and exclusion in America.

some of these are about zoning and some are just about the system we have set up that we shouldn't be very proud of, and that zoning and planning can affect. 

Stephanie: All great books to add doles. we've had a good number of these authors on this show before, and then I'll be very sad if the image of the city is no longer taught. It was key to one of the early classes in the planning program here at University of Nebraska. So if that's too old now and they're not teaching it, that'll be kind of a sad day.

 [00:45:00] Thank you so much for being on the show and talk about your book an Even Better Way to Zone Achieving More Affordable, equitable, and Sustainable Communities.

Don Elliott: thank you.

Jennifer: We hope you enjoyed this conversation with author Donald Elliot on his book, an Even Better Way To Zone Achieving More Affordable, equitable, and Sustainable Communities. You can get your own copy through the publisher at Island Press now an imprint of the Princeton University Press by supporting your local bookstore or to support the show through our page at bookshop.org/shop/book on planning.

 Remember to subscribe to the show wherever you listen to podcasts and please rate, review and share the show. Thank you for listening, and we'll talk to you next time on. Booked On Planning. [00:46:00]