In Michigan the governmental regulation of land use is largely achieved through the Michigan Zoning Enabling Act, (“MZEA”), MCL 125.3101, et seq. The MZEA allows local municipalities to adopt zoning ordinances which regulate the physical appearance and use of property within their jurisdiction. For decades zoning ordinances adopted pursuant to the MZEA or its predecessors focused primarily on regulating the use of property, and not necessarily on the physical form of the property and its buildings. Over the past two decades there has been a slow and gradual shift from use-based zoning to zoning based on the physical form of property, especially in downtown areas.
In 1996 the City of Birmingham became one of the first communities in Michigan to adopt a Master Plan committed to Form-Based Code, an approach to zoning focused on the physical form of land development rather than the use. Since then a number of municipalities have followed suit and taken a similar approach to zoning. The Form-Based Code Institute, FBCI, defines a Form-Based Code as follows:
Form-Based Code
/fôrm-b?sed k?d/
noun
1. A form-based code is a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code. A form-based code is a regulation, not a mere guideline, adopted into city, town, or county law. A form-based code offers a powerful alternative to conventional zoning regulation.
https://formbasedcodes.org/definition/ The FBCI definition goes on to state that Form-Based Codes “address the relationship between building facades and the public realm, the form and mass of buildings in relation to one another, and the scale and types of streets and blocks.”
With respect to the City of Birmingham, the twenty-year plan adopted by the City in 1996 focused on the physical form of its downtown and improving the walkability of the downtown area. The City’s efforts were recently described by Robert J. Gibbs, one of the collaborators on the project to commemorate its twentieth anniversary. Robert J. Gibbs, 20th Anniversary of the Birmingham Master Plan: City Planners Created an Industry Standard, (July 13, 2016). The Master Plan “included ten park improvements; a civic square expansion; a traffic-calming boulevard; and specified an entirely new streetscape plan including lighting, benches, and paving[, and a]ll fixtures and signage were painted “Birmingham Green[.]” Id. Mr. Gibbs notes that the City’s approach has largely been considered a success, as “more than 30 major, mixed-use buildings have been constructed, including a multi-screen regional cinema, and a new five-level Class-A office building and a luxury restaurant[,] Birmingham now has the highest commercial rents and land values in Michigan, and is considered one of the most walkable and commercially successful small towns in America.” Id.
Potentially due to the demonstrated success of Birmingham’s approach to zoning, numerous municipalities in the State of Michigan have adopted or are pursuing Form-Based Codes, including:
- The City of Lansing;
- The City of East Lansing;
- The City of Fremont;
- The City of Grand Rapids;
- The City of Farmington;
- The City of Walker;
- Gaines Charter Township Master Plan Update;
- The City of Traverse City;
- The City of Muskegon;
- The City of Wyoming;
- The City of Saline;
- The City of Jonesville;
- The City of Troy;
- The City of Pleasant (adopting a “Character Based” code);
- The City of Marquette;
- The City of Petoskey;
- Pittsfield Township;
- The City of Charlevoix (expressing a commitment to “Smart Growth” and more walkable neighborhoods in its Master Plan).
- The City of Sault Ste. Marie (investigating adoption of a Form-Based Code); and
- The City of Howell.
With the growth in the adoption of Form-Based Codes, there are numerous resources available to practitioners interested in Form-Based Codes and similar or complementary approaches to land use regulation such as New Urbanism, Smart Growth, and Place Making:
- FBCI. FBCI is a non-profit professional organization dedicated to advancing the understanding and use of form-based codes by: (i) developing standards for form-based codes; (ii) providing education regarding Form-Based Codes; and (iii) creating a forum for discussion and advancement of Form-Based Codes.
- Congress for New Urbanism (CNU). CNU, founded in 1993, holds itself out as “a movement united around the belief that our physical environment has a direct impact on our chances for happy, prosperous lives. New Urbanists believe that well-designed cities, towns, neighborhoods, and public places help create community: healthy places for people and businesses to thrive and prosper.” CNU has a Michigan chapter organized for educational purposes.
- Smart Growth America. According to the Smart Growth America website, smart growth is an approach to development that encourages a mix of building types and uses, diverse housing and transportation options, development within existing neighborhoods, and community engagement. The ten overarching principles for smart growth are: (i) mix land uses; (ii) take advantage of compact design; (iii) create a range of housing and choices; (iv) create walkable neighborhoods; (v) foster distinctive, attractive communities with a strong sense of place; (vi) preserve open space, farmland, natural beauty, and critical environmental areas; (vii) direct development towards existing communities; (viii) provide a variety of transportation choices; (ix) make development choices predictable, fair, and cost effective; and (x) encourage community and stakeholder collaboration in development decisions.
- Smartgrowth.org. Provides a clearinghouse of information pertaining to Smart Growth.
- Project for Public Spaces. The Project for Public Spaces is an organization dedicated to helping people create and sustain public spaces for communities, often complementary to implementation of a Form-Based Code and pursuit of “smart growth.”
- Placemakers. Placemakers is a private firm which specializes in Form-Based Code.
Summary
Form-Based Code is an approach to zoning that appears to be gaining wider attention in the State of Michigan and is slowly, but steadily, being adopted in many of its municipalities’ downtown areas. For those interested in learning more about Form-Based Codes, there are numerous resources available to assist in gaining an understanding of its advantages.
Matthew W. Heron is a Member of Hirzel Law, PLC where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. Mr. Heron concentrates his practice on drafting, revising, amending, restating and interpreting governing documents of condominium and homeowner’s associations in Michigan. He can be reached at (248) 478-1800 or mheron@hirzellaw.com. You can also follow him on Twitter at @mwheron75.
