The following information is provided by Mark White of White & Smith LLC:
General Resources
The Codes Project: http://codesproject.asu.edu/
Codifying the New Urbanism. American Planning Association, Planning Advisory Service Report No. 526, 2004.
Form-Based Codes Institute: http://www.formbasedcodes.org/
Freilich, Robert & White, Mark. A 21st Century Land Development Code. American Planning Association, 2008.
Garvin, Elizabeth. Understanding Form Based Regulations (International Municipal Lawyers Association, Portland, Oregon – September 18, 2006).
Moynihan, “Implementing Form-Based Zoning in Your Community,” Municipal Lawyer (July/Aug. 2006), at 14.
Slone, Daniel & Goldstein, Doris, eds. A Legal Guide to Urban and Sustainable Development for Planners, Developers and Architects Hoboken, NJ: John Wiley & Sons, 2008.
D. Parolek, K. Parolek, and P. Crawford. Form-Based Codes: A Guide for Planners, Urban Designers, Municipalities, and Developers (2008).
Sitkowski & Ohm, “Form-Based Land Development Regulations,” 38 Urb. Law. 163 (2006).
Smartcode Central: http://www.smartcodecentral.com/
White, “Form Based Codes: Legal Considerations” (Institute on Planning, Zoning & Eminent Domain, November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.
White, Form Based Codes: Practical & Legal Considerations (Institute on Planning, Zoning & Eminent Domain, November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.
White, “Unified Development Codes,” Municipal Lawyer (July/Aug. 2006), at 14.
White & Jourdan, “Neotraditional Development: A Legal Analysis,” Land Use Law & Zoning Digest, at 3 (Aug. 1997).
Contrary Views:
White, “Improving Community Design without Form Based Codes” (American Planning Association, National Conference, April 11, 2011), online at http://www.planningandlaw.com/Publications___Speaking.html.
Zyscovich, Bernard. Getting Real on Urbanism. Urban Land Institute, 2008.
Sample Codes
Green type (also *) indicates a hybrid code
Albuquerque, New Mexico Form-Based Code: http://www.cabq.gov/council/completed-reports-and-studies/form-based-code
Arlington County, Virginia (Columbia Pike): http://www.arlingtonva.us/departments/CPHD/forums/columbia/current/CPHDForumsColumbiaCurrentCurrentStatus.aspx
Azusa, California Development Code: http://library.municode.com/HTML/10418/level2/MUCO_CH88DECO.html
Benecia, CA Downtown Mixed Use Master Plan:
Bradenton, Florida Form-Based Code Land Use Regulations: http://bradenton.govoffice.com/index.asp?Type=B_BASIC&SEC={22A39C69-2543-469F-9E3C-DBB5B813967F}
Denver, Colorado: Denver Commons Design Standards (http://www.formbasedcodes.org/files/Denver-CommonsDesignStandards.pdf) and Zoning Code (http://www.denvergov.org/tabid/432507/Default.aspx)*
Farmers Branch , TX Station Area Form-Based Code: http://www.ci.farmers-branch.tx.us/work/planning/ordinances/station-area-codes
Fort Myers Beach Land Development Code: http://www.formbasedcodes.org/files/FortMyersBeachCode.pdf
Gulfport, MS Smartcode: http://homepage.mac.com/bounds/SmartCode/SmartCode.html
Hercules , CA Regulating Code for the Central Hercules Plan: http://www.formbasedcodes.org/files/CentralHerculesFBC.pdf
Leander, Texas Leander TOD Code: http://www.leandertx.org/page.php?page_id=39
Miami 21: http://www.miami21.org/final_code_AsAdoptedMay2010.asp *
North St. Lucie County , FL Towns, Villages and Countryside: http://www.formbasedcodes.org/downloads/StLucieFL_TVC_FBC.pdf
Overland Park, Kansas Vision Metcalf Form-Based Code: http://www.opkansas.org/Doing-Business/Vision-Metcalf
Panama City Beach, Florida: http://www.pcb-formbasedcode.com/
Peoria, IL Heart of Peoria Form Districts: http://www.ci.peoria.il.us/development-codes
Petaluma , CA Central Petaluma SmartCode: http://cityofpetaluma.net/cdd/cpsp.html
Pleasant Hill , CA BART Station Property Code: http://www.formbasedcodes.org/samplecodes?page=1
Prince George’s County Urban Centers and Corridor Nodes Development and Zoning Code, County Code, Subtitle 27A: http://egov.co.pg.md.us/lis/default.asp?File=&Type=TOC
San Antonio, Texas Unified Development Code (Chapter 2, Use Patterns)(http://library.municode.com/index.aspx?clientID=14228&stateID=43&statename=Texas), including § 35-209 (Form Based Development)*
Sarasota County , FL Mixed-Use Infill Code: http://www.spikowski.com/Sarasota.htm
St. Petersburg, Florida Land Development Regulations: http://www.stpete.org/development/Land_Development_Regs.asp*
Suffolk, Virginia Unified Development Ordinance, § 31-411 (Use Patterns) (http://library.municode.com/index.aspx?clientID=14461&stateID=46&statename=Virginia)*
Ventura , CA Downtown Specific Plan (http://www.cityofventura.net/downtown), Midtown Code (http://www.rangwalaassoc.com/Portfolio/Formbasedcodes/midtown%20code%20assets/midtowncode.html), and Saticoy Wells Community Plan and Code (http://www.rangwalaassoc.com/Portfolio/Formbasedcodes/SaticoyWells/SaticoyWells.htm)
Woodford County , KY New Urban Code: http://planning.woodfordcountyky.org/designwebsite/welcome.htm
You can find a more detailed description of some of these codes Form-Based Codes Institute, Sample Codes at http://www.formbasedcodes.org/samplecodes.
NOTES AND QUESTIONS
ENVIRONMENTAL AND AGRICULTURAL LAND USE REGULATIONS
PRESERVING AGRICULTURAL LAND
The Preservation Problem
NOTES AND QUESTIONS
Add at end of Notes and Questions 2, The structure of American farming., p. 390:
For more regarding the emerging trend towards larger industrial farms, see Goodbye Family Farms and Hello Agribusiness: The Story of How Agricultural Policy is Destroying the Family Farm and the Environment, 22 Vill. Envtl. L.J. 141 (2011).
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Add as Note 4, to Notes and Questions, p. 390:
4. Competing Interests. As a recent dispute in California demonstrates, there can be conflicting interests between preserving agricultural land and promoting environmentally friendly policies. The California Farm Bureau Federation challenged Fresno County when the County cancelled a part of a Williamson Act contract in order to allow construction of a solar energy project on a 90 acre portion of a 156 acre parcel. The Williamson Act is a California law with the goal of protecting agricultural land. Cal. Gov't Code § 51200, et seq. (West). The Fresno County Superior Court denied the Farm Bureau’s challenge to the cancellation. The court found that the development of renewable energy is in the public interest, citing a California mandate to increase reliance on renewable energy. The court further considered the lack of adequate sustainable water supply to the land, the proximity to an existing electrical substation, and that only a portion of the contract was cancelled. California Farm Bureau Federation v. County of Fresno, No. 11-CECG-03780 (Cal. Super. Ct. Dec. 13, 2012).
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Programs for the Preservation of Agricultural Land
Cordes, Takings, Fairness and Farmland Preservation,
NOTES AND QUESTIONS
Add to the end of Notes and Questions, p. 395:
5. Overlay zoning. Overlay district zoning has been used for some time to preserve natural resource areas and prime agricultural lands. In a recent decision, however, a Pennsylvania court held that while state law requires protection of prime agricultural land, it also requires reasonable provisions for development. Because the overlay zoning at issue in that case would require that 75% of land zoned for commercial, industrial, or residential use remain untouched, it unduly disturbed the expectations created by the existing zoning. Main St. Dev. Group, Inc. v. Tinicum Twp. Bd. Of Supervisors, 19 S. 3d 21, 2011 Pa. Commw. LEXIS 112.
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A NOTE ON PURCHASE OF DEVELOPMENT RIGHTS AND EASEMENT
PROGRAMS
Agricultural Zoning
Cordes, Takings, Fairness and Farmland Preservation,
NOTES AND QUESTIONS
Add to the end of the Note, top of p. 398:
For a good discussion of transfer of development rights in the agricultural context, see Building Industry Assoc. v. Co. of Stanislaus, 2010 WL 5027136 (Cal.App. 5th District 11/29/2010). The California appellate court considered a challenge to the County Farmland Mitigation Program (FMP) guidelines that required developers to obtain an agricultural conservation easement over an equivalent area of comparable farmland but respondent developer challenged the validity of such a requirement. The trial court found in favor of the developer primarily citing to the County’s excessive use of police power. The appellate court disagreed with the trial court and determined that the prevention of loss of farmland through conservation easements was reasonable in relation to residential development. The FMP attempted to balance protecting vital farmland while also preserving the ability to develop land. In addition, the Court determined that because the FMP gave developers the option to have a third party convey an easement to a land trust, the County was not compelling involuntary creation of an easement.
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Add to NOTES AND QUESTIONS, as new note 5, P. 400:
5. Defining Agriculture: Agricultural exemptions only extend to those activities falling under the applicable definition of agricultural purposes – an issue that has come up time and time again. For instance, in Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86 (Iowa App. 2010), the court found that plaintiff’s lagoon used to hold byproduct of the manufacturing process of an off-site pharmaceutical company did not fall within the definition of “agricultural purposes” and was therefore not exempt from county zoning regulations. The applicable statute reads:
Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.
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Iowa Code § 335.2 (emphasis added). The court explained that the exemption is “intended as a protection for the farmer and his investment in his land.” Plaintiff argued that since the wastewater could be used as fertilizer, having being found to have some benefit to crops, the lagoon was an agricultural use. The court rejected this argument, relying on a definitional test to determine whether the lagoon was exempt. The test provides that “agriculture is the art or science of cultivating the ground, including harvesting of crops and rearing the management of livestock.” Additionally, the test provides, “the exemption extends to facilities to be used in connection with agricultural functions.” The court found that the lagoon fell outside of the scope of the exemption because its primary purpose was not agricultural; the wastewater had never been approved as a fertilizer and its use as a fertilizer was “merely incidental to the real purpose for the storage lagoon.”
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In a later case, the Court of Appeals of Iowa used the same definitional approach as in Kramer, when property owners argued that their land qualified for an agricultural exemption under the same Iowa Code section. In Lang v. Linn County Bd. of Adjustment, 2012 Iowa App. LEXIS 297, the court rejected Plaintiff’s argument that growing trees and various fruits as well as farming fish were agricultural uses exempt from the zoning regulations. In doing so, the court stated, “We recognize that small-scale agricultural production should not be discouraged. However, at some point a line has to be drawn to determine what qualifies under the statute as an “agricultural use” and what is more akin to a rural acreage.”
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For a recent example of expansion of the agricultural definition, see Chapter 384 of the NY Laws of 2011 (statute expanding definition of farm operation to include commercial equine operations making them eligible, upon meeting certain criteria, for agricultural district protections). A.7744-A (Magee)/S.5168-A (Ritchie).
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Add to NOTES AND QUESTIONS, as new note 6, P. 400:
6. Agritourism: In Shore v. Maple Lane Farms, LLC, 2012 Tenn. App. LEXIS 229, a homeowner appealed the trial court’s decision that the defendant’s farm activities were protected from local zoning laws under the Tennessee Right-To-Farm-Act. The Tennessee Right-To-Farm-Act provides that farms or farm operations are presumed to be neither public nor private nuisances. The court had to decide whether recreational activities, such as music concerts and corn mazes, fit within the statutory definition of agriculture. The court was willing to broaden the original scope of the Tennessee Right-To-Farm-Act, stating, “…we recognize that agriculture is changing and evolving.” The court found that Tennessee’s “Agritourism activity” code section encompasses such recreational activities, which provides: “Agritourism activity” means any activity carried out on a farm or ranch, eligible for greenbelt classification under Title 67, Chapter 5, Part 10, that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, or harvest-your-own activities, or natural activities and attractions. An activity is an agritourism activity whether or not a participant provides compensation in money or other valuable compensation to participate in the activity.... Tenn. Code Ann. § 43–39–101(1). In reaching its decision, the court considered initiatives of the Tennessee Department of Agriculture and other state agencies to increase farm income and promote exposure to agriculture-based attractions. It ultimately concluded that the Tennessee Code provision as well as legislative history supported the assertion that the legislature considered agritourism to be the equivalent of agriculture, thus constituting a “farm operation…[that] conform[s] to generally accepted agricultural purposes” pursuant to the Act.
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Gardner v. New Jersey Pinelands Commission
NOTES AND QUESTIONS
Tonter Investments v. Pasquotank County
NOTES AND QUESTIONS
A NOTE ON THE TRANSFER OF DEVELOPMENT RIGHTS AS A TECHNIQUE
FOR PROTECTING AGRICULTURAL AND NATURAL RESOURCE AREAS
Add to the end of the Note, top of p. 398:
For a good discussion of transfer of development rights in the agricultural context, see Building Industry Assoc. v. Co. of Stanislaus, 2010 Cal. App. LEXIS 2007. The California appellate court considered a challenge to the County Farmland Mitigation Program (FMP) guidelines that required developers to obtain an agricultural conservation easement over an equivalent area of comparable farmland but respondent developer challenged the validity of such a requirement. The trial court found in favor of the developer primarily citing to the County’s excessive use of police power. The appellate court disagreed with the trial court and determined that the prevention of loss of farmland through conservation easements was reasonable in relation to residential development. The FMP attempted to balance protecting vital farmland while also preserving the ability to develop land. In addition, the Court determined that because the FMP gave developers the option to have a third party convey an easement to a land trust, the County was not compelling involuntary creation of an easement.
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Add to Note 6, NOTES AND QUESTIONS, P. 400:
The National Agricultural Law Center at the University of Arkansas reports that 23 states have enacted statutes that address agritourism and that there are many other statutes that are relevant for agritourism operators. For a helpful compilation of state agritourism statutes see States’ Agritourism Statutes, The National Agricultural Law Center, http://nationalaglawcenter.org/assets/agritourism/index.html.
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NOTES AND QUESTIONS
Right-To-Farm Laws
Buchanan v. Simplot Feeders Limited Partnership
NOTES AND QUESTIONS
Add to Note 7 “Sources,” P. 421:
See Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2013) (applying the “coming to a nuisance” rule).
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Add to Note 8, NOTES AND QUESTIONS, before “Urban agriculture has taken on a new life…” P. 421:
Urban Agriculture has many definitions. One report defines urban agriculture as the “growing, processing, and distribution of food and other products through intensive plant cultivation and animal husbandry in and around cities.” This report also describes how zoning regulations are well suited to balance concerns related to urban farming with economic and environmental advantages because zoning regulations “are designed to regulate competing land uses and thus should be a starting point for any municipality interested in promoting urban agriculture.” M. Hendrickson & M. Porth, Urban Agriculture – Best Practices and Possibilities, Univ. of Missouri Extension (2012), http://extension.missouri.edu/foodsystems/survey.aspx.
For an example of a city expressly considering urban agriculture through zoning see, e.g., Cleveland, Ohio Code of Ordinances § 336.01 (effective March 9, 2007). See also Jim Smith, Note, Encouraging the Growth of Urban Agriculture in Trenton and Newark through Amendments to the Zoning Codes: A Proven Approach to Addressing the Persistence of Food Deserts, 14 Vt. J. Envtl. L. 71 (2012).
For a searchable database of documents and websites describing urban agriculture zoning ordinances, go to Search City Policies and Resources, Univ. of Missouri Extension, http://extension.missouri.edu/foodsystems/urbanagriculture.aspx. For additional resources visit the Alternative Farming Systems Information Center, U.S. Dep’t of Agric., http://afsic.nal.usda.gov/farms-and-community/urban-agriculture.
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Add to the end of the Notes and Questions, p. 421:
8. Urban Agriculture. Urban agriculture has taken on a new life recently, and is being driven by an emphasis on local and organic food, as well as the economic downturn. However, small backyard gardens on suburban residential properties have expanded and city dwellers have begun raising chickens and goats on small urban lots. Many city ordinances prohibit these practices and cities are hearing from residents both in favor and opposed to expanding urban agricultural practices in residential zones. For more information about these controversial land uses, see P. Salkin, Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, Zoning and Planning Law Report, Vol. 34, No. 3 (March 2011).
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A NOTE ON THE INDUSTRIALIZATION AND ENVIRONMENTAL IMPACTS
OF AGRICULTURE
Add to the end of “The other side of agriculture” p. 422:
See also T. Centner, Addressing Water Contamination From Concentrated Animal Feeding Operations, Land Use Policy, Vo.. 28, Issue 4, 706-11 (October 2010).
Add to the end of “The other side of agriculture” p. 422:
For a discussion of the current regulations and policies addressing pollution by AFOs and CAFOs, see Shauna R. Collins, Note, Striking the proper balance between the carrot and the stick approaches to animal feeding operation regulation, 2012 U. Ill. L. Rev. 923 (2012).
Add to the end of “Proliferation of CAFOs?”, p. 422:
For more regarding the emerging trend towards larger industrial farms, see Goodbye Family Farms and Hello Agribusiness: The Story of How Agricultural Policy is Destroying the Family Farm and the Environment, 22 Vill. Envtl. L.J. 141 (2011).
Add to the end of “Preemption of Local CAFO Restrictions”, p. 422:
In a recent decision by the Fifth Circuit Court of Appeals, the Court held that the U.S. EPA cannot require a CAFO to apply for a National Pollutant Discharge Elimination System permit based on “proposing” to discharge pollutants. Various farm groups had sought review of the EPA’s 2008 Clean Water Act rules that required CAFO’s to apply for and obtain a NPDES permit if the CAFO discharges or proposes to discharge pollutants. The Court held that the EPA lacks authority to require CAFOs to apply for permits based on proposing to discharge because until there is discharge, there is no point source of pollution. Actual discharges from a CAFO would require a permit, however. National Pork Producers Council v. U.S. EPA, 635 F.3d 738 (5th Cir. 2011).
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