Here’s a word you’ll almost never see planners use: “why.”
But it’s a useful word when dealing with the dizzyingly complex world of development ordinances. Which, of course, are everywhere.
Whether big or small, fat or thin, municipalities of all shapes and sizes relish the chance to churn out pages of code. Never, or not nearly ever, asking “why” these codes exist in the first place.
Take Concord, New Hampshire. While a beautiful and historic city, “sunny” isn’t an adjective that jumps to mind. That hasn’t prevented solar panel regulations from becoming a major local controversy.
As the Concord Monitor reports, the planning board there has recommended a change to the zoning ordinance that benefits solar development. In a nutshell, they want to allow solar in all zoning districts and expand how much of a lot may be developed, loosening the restriction on “impervious coverage.” In areas zoned “Residential Open,” this means shifting from permitting a paltry 10 percent to 40 percent of lot coverage—at least, for solar.
On top of that, the suggested change calculates the size of impervious coverage differently for solar. Instead of measuring the actual developed space on the lot, it uses the overall perimeter of a solar array. In other words, the space in the area between the panels would count against the developer.
Per the Concord Monitor, Assistant City Planner Beth Fenstermacher states in a February report that “… staff has not found another municipality that utilizes the same method of calculating solar land coverage.” I bet they haven’t. Yet, in very the same sentence, she claims “…this method is the best way to provide predictability in what the city and property abutters can expect to see when the land is developed.”
Another way to say that: no one else is doing this, but we think this will work.
Concord’s attempt to found its own bizarre formula on impervious ground coverage for solar panel arrays seems to please almost no one. Property owners who were mad about a commercial solar array the city blocked last year are mostly still mad. The solar business people say it doesn’t allow for enough solar development and they’re fussy, too.
While one wonders where a solar company gets the money to build solar arrays in the capital of New Hampshire, that’s not the issue here. Nor, indeed, is it the only such example of wackiness around.
To that question asked at the outset: why? Why does Concord have such restrictive zoning ordinances in the first place? Why do most towns?
Ostensibly, the reason is to prevent harmful externalities. Though not a word planners use, “externality” should find a broader audience among those who champion a more market-driven approach to municipal governance. It means those things in the marketplace which cause an effect upon something else without consent. Milton Friedman often called them “neighborhood effects.”
Municipal ordinances would made a heck of a lot more sense if their true purpose in mitigating externalities—and which ones—was considered.
Years ago, I was an at-large city councilman in a city of 100,000. One day, not long after my election, I stood in for another council member at a meeting of the committee in charge of pedestrian improvements. They reported to the Planning and Zoning Committee, which of course made recommendations to the council.
I was rather surprised to find that, far from talking about sidewalks and multi-use paths, they were fixated on how some homeowners were parking boats in their driveways. In fact, a council member and the staff had drafted an ordinance that would prevent, as a part of the city’s development ordinance, parking any recreational vehicle or boat on one’s own residential lot.
Anywhere on their own property!
After listening to the back and forth a bit, I asked what they were really trying to prevent. It sounded to me, I said, that they were trying to keep other homeowners from being somehow affected by the eyesore—or perhaps, their property value.
Yes, the committee members said. That’s the point.
So I asked why a homeowner should be disallowed from having a recreational vehicle or boat parked in, say, a garage hidden from the street or a storage shed that didn’t disturb his or her neighbors. Was such concealed storage really bothering the neighborhood?
After an awkward silence, the committee members all agreed that yes, this made sense. What they really wanted to do was ban the nuisance, and the nuisance was that which was visible. I still disagreed with the ordinance, but much less so, and it was amended to incorporate this change.
As I would come to find in my city and countless others through years as a local government policy analyst, few staffers and fewer local officials ask such questions to distill the purpose of their proposed development policies. It is a shortcoming that knows no geographic or political boundary.
The problem with Concord and most cities with complicated development ordinances is that they rarely consider just what externalities are being dealt with. In the case of the solar panels, it’s hard to imagine how solar panels could have a negative impact on adjoining properties, especially if they’re on a roof.
More likely is that neighbors prefer a different use altogether, or keeping the land raw and undeveloped as greenspace. Surely that’s why Concord’s “Residential Open” developed.
When considering the proper ways to restrict development, a city should first ask about the potentially harmful impact is of a new development on existing property owners—thus, identifying the externalities in play.
Then they should use what I will here refer to as the “Grandma Test.”
This is highly scientific, and relies upon a multitude of peer-reviewed papers in obscure journals that utilize a satisficing heuristic to draw conclusions from vast arrays of uncoordinated variables using logarithmic regression.
Just kidding. All it is: what would your grandma think was bothersome?
The Grandma Test is a way of internalizing the “community standards” principle for planning and zoning issues in which you imagine how a sensitive member of the area potentially being affected (often an existing neighborhood) would feel if X, Y, or Z happened nearby. There’s no math, there’s no formula, nothing. It’s just common sense.
Here’s an example.
Would Grandma be upset if the guy next door parked his boat in his driveway some of the time? Probably not, especially if it was a small boat. Would Grandma get her hackles up about a 30-foot sailboat stretching the entire length of the driveway and poking out into the street past the mailbox? Yes, she probably would.
Here’s how, say, Concord’s planning staffers could use this.
Would Grandma be upset if a company installed a bunch of solar panels on a vacant parcel of land and shielded those solar panels with trees? She might be upset during construction, but probably not after completion.
My suspicion is that, outside of building the array as a vertical wall reflecting the sun at Grandma’s house, it would be hard to find a less intrusive development use than solar.
The few NIMBYs who believe that every undeveloped parcel should remain so indefinitely would do well to be reminded by council members and staffers that if they want to control a property, they should buy it. Sadly, most local officials and staffers tend to cower at the sight of more than two or three unsolicited citizens showing up at city hall.
It is worth remembering that Grandma generally won’t show up at city hall, and almost never to protest non-invasive use cases. If your proposed variance sullies Grandma’s petunias, she’ll be out in force.
Otherwise, she’s got better things to do.
Many issues are more complicated than Grandma can deal with, of course. But the principle remains true: if a fairly sensitive member of the community probably won’t take issue, then a proposed use or development likely isn’t a problem.
Imagine how different, and how much more diverse, our cities would be if, instead of constricting use to a particular school of planning thought, average members of our communities – not just the ones who show up at council meetings – were consulted, in actuality or in a thought experiment. This is rather different, too, than taking a preordained plan to regulate and placing it before a community town hall for “input” and “feedback.”
No, this precedes the ordinance being written up in the first place. If it did, many of them wouldn’t be written at all.
What if Grandma took a look at the ordinances already on the books in many American cities? Suffice it to say, she would probably consider it overkill.
Then, because Grandma doesn’t have time for such nonsense, she would go back to tending her petunias.
Jess Fields is a public policy analyst who has worked with state and local officials in 31 states. Prior to that, an at-large city councilman in a town of 100,000.