33. New York as-of-right – is the time right for the UK?

I was recently invited to take part in a conference to celebrate the 50th anniversary of New York’s 1961 zoning ordinance.  As the token Brit in a room of 200 New Yorkers my role was to explain our rather curious (to them) non-zoned, discretionary approach to planning.  At the conference, however, it quickly became clear that systems of planning on both sides of the Atlantic are not nearly as different as on first sight they may seem, confirming what John Delafons long ago argued: ‘The American and British approaches to the problem of controlling private development represent almost the opposite extremes in planning methods.  But the distinction between a formal system of regulatory controls, which eschews discretion as far as possible, and the alternative of exercising control as discretionary power in government is perhaps more apparent than real’[1]

There are of course as many different systems of zoning as there are skyscrapers in New York (probably many more), but New York has been at it longest, having invented the system in 1916 when their first zoning ordinance was adopted following the impact of the 42-story Equitable Building in Lower Manhattan which, when completed in 1915, cast a seven-acre shadow over its neighbours.  Thereafter New York has maintained one of the purest forms of zoning with the aspiration that the large majority of development should proceed on an as-of-right basis through the Uniform Land Use Review Procedure (ULURP – their equivalent of our Development Management).  In other words, if a proposal complies with the stipulations in the ordinance, no permission is required.

In such a system there is none of the ‘professional’ evaluation of proposals against loose policy aspirations, no political decision-making and no discretion.  The ordinance prescribes what is permissible and, according to one architect at the conference ‘developers bend over backwards to ensure that their schemes comply’.  Yet, just as our plan-led system has acted to constrain at least some of the discretion that planning authorities weald here, across the Atlantic ways and means have been found to facilitate greater responsiveness to the complexities of contemporary development and a more flexible approach to its regulation.  In New York this has meant two things.  First, that the zoning ordinance has over the years become infinitely more complex, and second, approaches have increasingly been adopted that allow a greater degree of discretion in its interpretation.

Simple aims, complex delivery

At its simplest zoning attempts to control three things: bulk (the amount of development on site, largely controlled through defined Floor Area Ratio), form (how the development sits on site and what is its shape – lot width, area, coverage, set backs, open space, heights, parking. etc.) and use (the functions being accommodated).  New York has three basic use categories – residential, commercial and manufacturing districts – but these are sub-divided into numerous sub-categories (114 in total), on top of which there are 57 Special Purpose Districts, each with their own zoning regulations where standard zoning practice is considered to be too blunt an instrument to respond to their special character – Battery Park City, Coney Island, Little Italy, Lincoln Square, and the like.  Contextual zoning districts (41 in total) have also been introduced where new buildings in an established area of character are required to conform to the existing characteristics of the neighbourhood, whilst Overlay Districts overlay one zone on another to achieve hybrid outcomes (38 of those).  Finally, very large new developments (over 1.5 acres) can, at the discretion of the City Planning Commission, break away from key aspects of the zoning ordinance altogether in order to achieve a better arrangement of bulk and open space on the site.

With all this complexity, it should be no surprise that New York’s zoning ordinance has grown from 35 pages when originally devised (in 1916) to 900 pages today; now on-line in all its glorious detail representing the perfect antidote to insomnia!  Yet, despite this complexity, in a city of 8 million people and the varied urban contexts of New York, circumstances increasingly conspire to demand that departures from the zoning ordinance are required.  In such cases a zoning amendment, special permit, authorization, or variance can be applied for, each of which requires that either the City Planning Commission or Board of Standards and Appeals meet and agree to the proposed change, introducing an element of discretion and uncertainly not dissimilar to many of our own planning practices.

New York has, for example, steadily lost its previously large manufacturing base and the land needed to sustain it.  Under union pressure, however, the spaces and buildings that have been freed up have retained their zoning for manufacturing even through the new uses being found for them are in other categories.  The result is an increasing number of exceptions that need to be made to accommodate change.  Elsewhere, an increasing number of buildings have been listed as historic landmarks and can no longer be demolished.  Again, because their original uses are very often obsolete in their original purpose, a stream of exceptions are sought and granted to secure their re-use.

Another layer of complexity and flexibility is provided through the system of bonuses, many of which are given as-of-right and which can be extremely profitable for developers.  Bonuses (additional floor space) have long been offered for delivering public goods such as inclusionary (affordable) housing, waterfront access, public spaces (New York has well over 500 Privately Owned Public Spaces – POPS – accrued over 50 years), and even FRESH food stores (offering healthy food options).  So, for example, for each extra square foot of FRESH food store, one additional square foot of residential space is allowed.  For each square foot of affordable housing up to 3.25 square feet of bonus floor area is granted.

udm33-1

POPS – Privately Owned Public Spaces – many negotiated though incentive bonuses, but of hugely varying quality

The ability to move development rights all together from one site to another is also sanctioned by the system.  These Transfers of Development Rights (TDRs) typically occur when unused development rights associated with, for example, a landmark building are sold to a developer on a neighbouring site to allow a higher building to be built; a process requiring a special permit.  Other lots can be entirely merged and development rights shifted around the now enlarged site in order to optimse development outcomes, for example by producing one large tower instead of two medium sized ones.

A limited tool

What is clear is that like its British counterpart, planners and politicians in New York have increasingly been looking to the system to deliver much more than was originally envisaged of it, and for the system to be far more responsive to the city’s multifarious complexities.  To achieve this, layer upon layer of additional regulatory complexity has been added, all interpreted, argued over and challenged by legions of zoning lawyers (at least a third of the conference audience of perhaps 200 were lawyers).  Alongside the planners who created and now maintain the ordinance, these players now have the greatest vested interest in ensuring the complexity is retained, perhaps explaining why discussions about the wholesale reform of the 50-year old ordinance have yet to get off the ground.

When one looks at New York today it is clear how the system of control has been complicit in helping to shape the city, just as our system of planning does here.  In New York, zoning in effect sanctions the physical framework within which the life of the city exists.  Sometimes this has led to disasters, such as in the initial years after the 1961 ordinance was released before its over-simplistic Modernist prescriptions for a city of towers in green space were modified following the influence of Jane Jacobs (amongst others) whose paradigm-shifting book – The Death and Life of American Cities – was released in the same year.  Inspired of course by her life in New York’s Greenwich Village, Jane Jacobs was hugely critical of zoning and argued for an altogether less ‘formulaic’ view of the city.  The complexity of the ordinance today, fifty years on, is perhaps a partial victory to her cause, an omission that the city itself is an altogether more nuanced and layered place than the post-war planners (and their ordinance) perceived.

udm33-2

New York as we see it today has been decisively shaped by approaching a century of zoning

The danger, of course, is that in all its glorious complexity the technical product of the ordinance itself becomes an end in itself, rather than a means to an end – namely a more sustainable city.  In the US the New Urbanists have certainly been arguing this case and have been calling for a new emphasis on form-based zoning where instead of a series of technical rules to guide development, zoning is based around a clear physical vision of a desired end product.  Thus whilst New York zoning provides endless detail on the shape and form of buildings (and some on POPS), it offers little on the spaces between the buildings and nothing to guide public buildings (it focuses exclusively on the private).  In this regard the true public realm of the city is hardly controlled through zoning, just as the public spaces of British cities are hardly controlled through our planning system.  Instead the public realm is delivered through a network of uncoordinated stakeholders and interventions, some of which create truly stunning new space, such as New York’s new High Line park (funded and delivered by the City), but much of which has historically left much to be desired.

udm33-3

The High Line public park, a real triumph of direct public investment in the city, now driving the regeneration of New York’s Lower East Side

A convergence of practice

In recent years (since 2007) New York City, through the auspices of the Mayor has been trying to address these concerns, alongside other shortcomings of Zoning (e.g. its lack of a strategic or infrastructure dimension) through PlaNYC, an aspirational plan to take the city up to 2030.  In doing so zoning is being situated within a wider forward planning process, just like development management is here.  In New York, however, there is still some way to go before the system becomes a creative place-production process of the sort aspired to by the increasing number of US cities that have adopted, to varying degrees, form-based coding.

Here in the UK there have been some discussions about adopting as-of-right approaches to planning, for example through the introduction of Local Development Orders that, for particular prescribed forms of development, would effectively by-pass the need for planning permission.  The lessons from New York are instructive here, namely that as-of-right systems of consent are in general far blunter tools for controlling development than discretionary ones, necessitating either a wider trust in the market to deliver appropriate development or, as in New York, a system that tries to anticipate and control the huge range of contexts and approaches to development that any city, not least one the size and complexity of New York) will generate.  Of course Local Development Orders are supposed to be local tools and Government guidance in the past has advised that they should operate hand in hand with a design code or similar form of guidance to effectively put in place the sorts of physical planning framework that zoning in New York attempts to do.

For those tempted to go down that path, three key departures from practice in New York would seem key:

  • Shape the public realm not the buildings – the focus of control should be on what matters to the public at large: the public spaces, infrastructure and common amenities of the city; buildings can largely look after themselves
  • Focus on the essential urbanistic qualities of the city – shaping a resilient and adaptable structure for the city and its spaces is more important than inconsequential details and short-term uses
  • Focus on the scale of use, not the type – today there are relatively few circumstances where uses need to be separated; instead of controlling use, regulations should focus on encouraging a mix.

Matthew Carmona

Professor of Planning & Urban Design

Bartlett School of Planning, UCL

m.carmona@ucl.ac.uk

November 2011

[1] Delafons J (1962) Land-use controls in the United States, Cambridge, MIT press