We Regulate the Wrong Things


You can find sterling examples of this pattern literally all over the world. Just on this site, we’ve taken readers on tours of the traditional development pattern in the United States, Mexico, Puerto Rico, Morocco, Spain, Japan, Turkey, and more.

However, because of the post-WWII hegemony of the automobile, and the also-post-WWII emergence of a Ponzi-Scheme-like model of debt-fueled development, the rules of traditional development are often no longer followed, especially in North American cities.

In more recent years, the rise of the New Urbanist movement in city planning and an increasing recognition of the value of these traditional forms has led to an environment in which most cities’ staff and elected officials will tell you they want traditional development that hits the bullet points above. They will say it right in their comprehensive plans and zoning codes.

And yet, the principles of it have been alien to the way we do things for so long that developers often don't get the details right. It’s not because they don’t get it or can’t find architects who get it. It’s more about incentive problems, what economists might call a “market failure:” developers’ incentives are not aligned with the long-term interests of the community.

Bad Urban Design is a Market Failure

Bad Design is a Catch-22. This can be summed up as “We don’t need to spend extra money and effort making it nice for people to walk here, because nobody walks here.” Or the even less charitable version, “There seems to be no demand for a bridge across this crocodile-infested river, because I don’t see anyone swimming.”

The result of the car-oriented status quo is that even in areas that could be walkable—they have the density and the mix of uses—developers often view a top-notch walking environment as an optional “wish list” item that can be discarded from their design when it comes time to cut costs, because hey, most people are going to drive to my building and park in the parking garage anyway, right?

Bad Design is a Collective Action Problem. Wikipedia defines a collective action problem as a situation in which all individuals would be better off cooperating but fail to do so because of conflicting interests between individuals that discourage joint action.

Good design helps a place maintain value over the long term—when each building enhances the overall streetscape, you have an environment which inherently draws people in to linger. However, for any one developer, good design costs extra, and that extra cost has to be justified based on the presumption that other property owners in the area will also do their share. Creating a great street requires the collective effort of those who own the buildings along that street.

Local Regulation Fails to Correct the Incentives. This is the kind of market failure that government regulation—by which I mean local zoning and development standards—is ideally suited to correct. Development regulations exist, in theory, to prevent people from doing things on their private property that harm their neighbors. And because buildings, once built, will likely be around for decades or more, we ought to be comfortable with a fairly expansive interpretation of "harm" in some cases. If you build something with an especially bad frontage, you are diminishing the quality of the street for everyone else who lives, works, and owns property along it. It makes sense to impose some reasonable standards governing the things that make the most difference in this area.

Do we? Not really. The unfortunate truth is that most development codes still regulate the wrong things aggressively, and the right things not well enough.

And they do this despite the best of intentions. My own city’s code introduces its Downtown zoning districts with the following language, which checks all the boxes:

The singular quality that helps differentiate the urban downtown from typical suburban environments is the primacy that the urban downtown places upon creating a high quality pedestrian environment. This environment is best described in terms of the quality of the frontages along the street edges. Frontages are the area between the facade of the building and the lot line (see frontage definition II-201).

An excellent frontage is one that provides a high level of positive stimulus and interaction for the pedestrian. In an ideal setting, buildings would form a continuous edge, generally up against the outer edge of the right-of-way, with large expanses of glass for pedestrians to see what is happening inside, and a constant sense of give-and-take between inside and outside. The width of the buildings along the street would be relatively narrow, with a range and variety of stores and shops. Restaurants and other uses might spill out onto the sidewalk creating open-air cafes, galleries and other attractions. Landscaping is prevalent, but does not dominate the setting, and does not prevent the pedestrian from getting close to the buildings, storefronts and display window[s].

A poor frontage, on the other hand, is one in which there is little, if any, stimulus or interaction with the pedestrian. A surface parking lot is an example of the worst type of street frontage, affording the passerby little sense of enclosure, protection or interaction.

In that language, we’ve got nods to human scale (“high level of positive stimulus and interaction”), granularity and incrementalism (“width of buildings along the street would be relatively narrow”), mixed use (“range and variety”), and the idea that the streets should be the public’s living room. I like this code. How can we go wrong?

My city’s downtown also happens to be in the middle of a construction boom, giving me ample opportunity to actually hit the pavement and take photos of buildings that have gone up in the last five years. Let’s look at what that new development gets right, what it gets wrong, and how that relates to the city's codes—what are we not regulating that we ought to be, and what are we over-regulating?

3 Things We Should Be Regulating More Aggressively

1. Pedestrian Comfort: Shade

If you want to encourage a lively street full of people walking, you need to make it comfortable to walk. The exact needs might vary a bit depending on your climate and situation: wide enough sidewalks to feel safe, places to sit and rest. In Florida, where I live, comfort means one word above all else: shade.

For this reason, we require awnings on retail and restaurant frontages in our downtown—the awning must cover at least 90% of the front of the store. This is great. It looks like this, when done well: