Orange Code

Orange County, FL is currently in the process of reformulating it's zoning code. It is following in the footsteps of cities like Miami and Buffalo which have replaced their conventional use-based Euclidean zoning codes with a Form-Based Code (FBC) called the Orange Code.

 

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FBCs have many advantages over Euclidian zoning, because they regulate the physical characteristics of the structures on a site instead of what happens on the site. For this reason, FBCs are often found to be more understandable to the public, allowing a more constructive public outreach.

Although not particularly common in the literature, I believe that one of the strongest arguments against Euclidean zoning codes is that they control a variable about which few members of the public have strong opinions. Indeed, with only a few exceptions, land use is one of the things about a neighboring property in which I am at a loss to think of any reason why the community should have a say at all. If a building looks like a house and generates the number of vehicular trips, loud noises, and vibrations as a single-family residence, why would a neighbor care if the building is in fact used as a single-family residence instead of an accounting office or an art gallery?

Actual impacts to networked infrastructure and the generation of nuisance are related to land use, but certainly not the same thing. And impacts to infrastructure and nuisance can be controlled in an objective manner with much greater specificity by addressing these issues directly, rather than using land use as a proxy.

At the end of the day, the things that neighboring landowners and residents care about are nuisance potential and aesthetics. By focusing on land use, Euclidean zoning only indirectly controls these aspects of a development.

Within urban and suburban districts, an FBC ignores land use and instead focuses on density, height, bulk, and placement of structures. Many FBCs also have extensive ornamentation and other purely aesthetic requirements.

On one hand, this is a useful tool, because it regulates the aspects of development that are understandable to members of the public, and can create realistic expectations about how an area will grow and change over time. On the other hand, it is odd to think that the government should have the authority to regulate aesthetics at all.

However, most conventional building codes also include extensive regulations regarding purely aesthetic considerations of a project. So although I have trouble understanding why this is considered an acceptable use of the police powers of the state, it is certainly not an invention of FBCs.

If adopted, I believe that Orange Code will be the largest implementation of an FBC yet in the United States. It would apply anywhere in Orange County that is not within the limits of an incorporated city. The 2021 population of Orange County is approximately 1,417,280 people, while only 498,505 live in incorporated cities including Orlando, and 11 others. That means the population of the area falling under the jurisdiction of Orange Code will be approximately 918,775. From my brief inspection of the codes listed on the website of the Form-Based Code Institute, the largest jurisdiction with a FBC is currently the City of Miami, which has a population of 478,251--around half that of unincorporated Orange County.

Unlike Miami, unincorporated Orange County has much less diversity of land uses, with the vast majority falling under conservation, agricultural uses, and conventional post-war suburban development. More recent development within Orange County has included a number of large-scale master-planned developments with New Urbanist and Traditional Neighborhood Design characteristics, but still fairly low densities.

The only two major areas of the unincorporated Orange County with any sort of density (where a FBC really gets to flex its muscle) are (1) the portions of the International Drive tourism corridor generally south of Sand Lake Road, including the Orange County Convention Center, Universal's Epic Universe Theme Park, and Sea World; and (2) the areas surrounding the main campus of the University of Central Florida (UCF).

It is not clear to me how much the Orange Code will change what can and will be built in the International Drive area (1). The land here is so valuable for tourism-related uses and this area is already home to some of the largest buildings in Central Florida. However, the UCF area (2) is already mostly built-out, but was built at a much lower density than the market currently is demanding. I can see Orange Code as providing opportunity to accommodate the redevelopment of this region in a manner that would be more difficult under the existing zoning.

One of my concerns regarding the Orange Code (and FBCs in general) is the question of administration. Will it be possible for the administrators of the code to determine objectively and impartially whether a proposed project is in compliance? In other words, will the code be easy for a developer to satisfy, even if the project is locally unpopular? Unpopular development and redevelopment is crucial for keeping cost of living low and providing housing for all levels of the economic distribution.

I believe my earlier remarks make it clear that I am opposed to conventional, Euclidean zoning because the land use designations are so often completely unrelated to the nuisances or negative impacts of a given development. However, one major advantage of Euclidean zoning is that it is often fairly easy to determine what land use a given project is. So it is rare that unpopular projects can be stopped over ambiguity over whether it is a permitted use or not.

It is not clear to me how a project could be permitted as-of-right under an FBC, because so much of the requirements are a matter of aesthetics. Obviously, measures like bulk, height, and placement can be objectively determined. But if a code has less-than-objective requirements, that leaves room for the administrators of the code to have leeway to reject the applications of locally unpopular projects that are beneficial to the region (such as multi-unit residential).

Housing affordability is directly tied to the land use regulation in a region. The tourist economy in Central Florida is dependent on maintaining low costs of living. Cities with high costs of living have land use regulation regimes that empower existing land owners to apply political pressure to oppose new developments, raising costs of housing (and other necessary real estate), and strongly benefiting existing residents at the expense of future residents.

Instead of providing existing residents the tools to veto new development near them, I would like our land use regulation to be focused on allowing the greatest variety of uses and density while minimizing the negative impacts to existing residents and property owners.

I emailed my concerns about the potential for Orange Code to increase housing costs to the Chief Planner within the Orange County Planning department who was listed as a contact for this initiative.

He responded that the Orange Code is designed to offer developers much more flexibility in selecting parcel uses and will simplify the approval process. He also expects that the code will help make the unpopular uses be designed in such a way that they become more supportive of the neighborhood character and therefore seen as less objectionable or even desirable by the public. I believe that this is an optimistic take, but it definitely has the potential to be true. At least in some cases.

Will the Orange Code be objective enough that the developer of an unpopular project will be able to get it approved by following predetermined rules? Or will it be used as a tool to extract concessions from developers in order to drive up housing costs and prevent anything but luxury developments from being built? I am cautiously optimistic, but will be following the development of the code closely.

If you want to learn more about the Orange Code and let the county know what you think about these issues, there will be two additional online public workshops that you can sign up for on July 7 and July 8, 2021.