Wednesday, September 2, 2009

"SmartCode" isn't Smart

In the aftermath of the city granting permission to Buckhead Development to build the Ashby High Rise, Houston bloggers have jumped in with a variety of suggestions for avoiding similar conflicts in the future. One of those suggestions comes from Andrew at neoHouston, who suggests that Houston adopt "Houston-style SmartCode":
SmartCode is an effort to combine the many facets of development regulation (subdivision and platting regulations, building regulations, traffic and parking regulations, etc) into a single, streamlined, compact document. Its entire goal is to stay away from land-use controls (which unreasonably inhibit the market and create constant conflict at City Hall), and focus on simple, predictable, results-oriented standards.

In essence, SmartCode divides different scales of buildings into different “transect-zones”, defines how the street should be designed to accommodate the needs of different scales of development, and leaves the rest to the market. Contrary to popular belief, SmartCode is not about “style;” the standard code does not contain any.

Andrew argues that Houston has been well-served by avoiding destructive zoning regulations. And while his proposal differs from zoning in kind, it does not differ in principle.

The right to property is the right of use and disposal--property rights permit owners to use their property as they choose, free from interference from others (so long as they respect the mutual rights of others). Zoning violates property rights by dictating the use of each parcel of land, regardless of the decisions of the property owner. Any use contrary to the dictates of zoning officials is a criminal act.

While "SmartCode" does not dictate land-use, it does establish standards that are enforced by the coercive power of government. The property owner cannot use his property as he chooses, but must instead meet the mandates of the city's standard. Dressing a wolf in lamb's wool does not change its nature; attaching clever euphemisms to land-use regulations does not do so either.

There seems to be no shortage of proposals to use the force of government to achieve some ends, while simultaneously claiming that the results will be driven by the market. "SmartCode" is one example.

The advocates of these plans believe that a mixture of controls and freedom is compatible with a free market. They do not oppose controls and regulations, only those that "go too far". They do not oppose government mandates, only those that are "too heavy-handed". However, once the principle of government controls and regulations is accepted, the only issue to be decided is the extent of those controls.

Inevitably, those controls and regulations will expand. Government intervention in the market always leads to distortions and unintended consequences. In an effort to correct those distortions, government responds by tweaking the controls, leading to further distortions. Further, those harmed by the controls will lobby for exceptions and variances to shift the harm to others, while other groups lobby for tighter controls. The political process becomes a battleground as competing groups seek to influence city officials.

The solution does not lie in tweaking the controls or developing cute variations of land-use regulations. The solution lies in recognizing and protecting property rights--completely and consistently. The solution lies in a truly market-driven economy, not one partially shackled by government.

Whether it is "SmartCode", or planning, or "Houston-style zoning", the advocates of land-use controls want to have their cake and eat it too. They seem to recognize, at least in some crude unprincipled way, that Houston's relative freedom in land-use has provided enormous benefits to the city and its residents. But they remain unhappy with some of the results. They do not like the fact that some individuals use their property differently than they would choose. And so they demand that government force the recalcitrant to act "properly".

The advocates of land-use controls, no matter the name they attach to their proposals, begin with a Utopian vision for the city. When the voluntary decisions of the city's developers and consumers do not match that vision, they rush to wield the coercive power of government. They seek to compel others to act and live according to their ideal. That isn't smart, and it certainly isn't compatible with freedom.


Steve Mouzon said...

This isn't quite correct. You're completely right to be wary of conventional zoning, which does limit what you can use your land for. But your characterization that the SmartCode is a "wolf in sheep's clothing" shows that you don't fully understand the SmartCode.
The SmartCode really does let you use your land for whatever you want (except for noxious uses like explosives factories, etc.) It simply regulates the forms of the buildings so that the buildings act as good neighbors and help to create a better public realm (streetscapes, squares, etc.) In doing so, it creates more property value for everyone. This level of property value improvement CANNOT occur when people are free to locate their buildings in any location they choose.

Brian Phillips said...

I would argue that you don’t understand SmartCode, and more specifically, the principle that underlies it.

Your argument demonstrates my point. SmartCode does not let you use your land for whatever you want—your use must be in keeping with the “good neighbor” standard, it must “create a better public realm”. In other words, the use of your property must meet the dictates of government officials.

The arguments for zoning sound no different from those you make for SmartCode—it enhances property values, it prevents “incompatible” land-use (that is what a “good neighbor” standard is), and such “benefits” cannot be achieved if individuals are left free to act on their own judgment.

In principle, SmartCode is no different from zoning. The only difference is the extent to which each violates property rights.

Steve Mouzon said...

Brian, this may be a case of semantics, but you said "SmartCode does not let you use your land for whatever you want". Except for noxious uses (the explosives factory, etc.) this is not true. That's the primary difference between the SmartCode and conventional zoning: the SmartCode DOES let you use your land for whatever you want. The buildings simply have to be arranged in ways that contribute to the public realm.

demetri said...

Brian, the battle you fight is a noble one. Steve and I fight with you. However, you have weaved a mythology around your "enemy" that is not factual and this, in the end, negates the potential benefits of your actions. I understand the need to distort, (everyone uses propaganda to some degree to support their cause), but when applied ideologically, as you do, one often looses sight of another fact, which is that your enemy is often starring back at you in the mirror. Your ideology blinds you to this possibility.

Life and communities are more complex than single issues like “property rights” can address, and your approach to change needs to be too. Steve and others fight the "zoning fight" and evolve and adopt new tools like the SmartCode, because they know that merely opposing and defeating achieves nothing. There needs to be advancement.

The irony is that you personally believe, (as do many), in an Eden that struggles for survival under the oppression of "government". This Eden exists only in your mind. Once you defeat "the zoning enemy", and then the line of enemies who stand behind this straw man, you'll discover the ultimate enemy on the way to Eden will be you.

Those of us who seek to change the status quo have learned that there is no "default Eden" to fill the void left after the defeat of "the enemy" (in this case government zoning). We realize that the enemy is us and that to live a beneficial and productive life we must embrace complexity and evolve as a group.

You can play an even more beneficial role in the struggle than you already are. All you have to do is remove the ideological yoke from around your neck to move freely on the battlefield with us.

Brian Phillips said...

Under SmartCode, could I build a high rise on my property? Could I have no "public" spaces and a minimal sidewalk? The fact remains, unless my property use meets the mandates of SmartCode, I cannot build what I want.

Brian Phillips said...

You argue that I should dispense with ideology, i.e., principles. This is precisely the type of pragmatic thinking that I oppose.

You claim that I am resorting to distortion, while failing to offer one piece of factual evidence to support your claim.

Interestingly, you also claim that I am fighting for a fictitious Eden. Yet, this is the premise that underlies SmartCode--there is an ideal way that cities should be built. I harbor no such ideal.

I am not fighting against zoning. I am fighting for individual rights, including property rights. I am fighting for the moral right of each individual to live his life according to his own judgment, in the pursuit of his own values, so long as he respects the mutual right of others.

Steve Mouzon said...

Brian, I'm still not convinced we're talking about the same thing, because of the language you're using. You're saying "SmartCode," like a commodity, like "wheat," or "soybeans." But it's not a commodity. It's a very specific document, with specific authors, a specific publisher, etc. And like other specific singular items, it's referred to as "THE SmartCode," not just "SmartCode." So I suspect you might be thinking that "SmartCode" is synonymous with Smart Growth coding in general. It's not. It was re-named the SmartCode nearly a decade ago, before Smart Growth had completely taken its current form. Since then, the two have diverged somewhat. Smart Growth is a government-driven, top-down solution, whereas the SmartCode has developed in a much more private-sector environment. So while they still share the same term "Smart," there are many differences at this point.

Brian Phillips said...

I will acknowledge that I am not an expert on the SmartCode. However, I'm not an expert on sticking a sharp stick in my eye either, and I still know that it hurts.

To what does the "code" in the SmartCode refer? In common language, it means city ordinances. So unless "code" refers to something other than the law, the SmartCode proposes to make certain standards for property use a matter of law.

Brian Phillips said...

From "The SmartCode is an integrated land development ordinance. It folds zoning, subdivision regulations, urban design, public works standards and basic architectural controls into one compact document. It is also a unified ordinance, spanning scales from the region to the community to the building."

In other words, SmartCode is just another way for government to dictate land-use.

Sandy Sorlien said...

Hello from the managing editor of the SmartCode.
Brian is correct that our document is intended to be (when locally calibrated) a regulatory tool, and does have rules about what you can do with your property, to the extent that your property affects the public realm. However, it is less restrictive with regard to use than conventional zoning codes. With regard to form, the frontage is the most essential area as everyone walking, cycling, and driving by can see it, and if there are windows and (in some zones) porches you have more "eyes on the street" and a safer block. Steve is correct that we aim to increase community value. The SmartCode is about protecting, completing, and creating walkable neighborhoods, including walkable downtowns. That does not mean getting rid of cars; it does mean more transportation options. It does not mean you are forced to live in highly "urban" conditions; it does mean there are more definite choices in human habitats along the rural-to-urban transect.
While we do have a Specific Use table (Table 12), it allows more uses than conventional use tables and it allocates by intensity along the Transect. For example, in the category of Lodging, T-3 and up allows bed & breakfasts, T-4 and up allows inns, and T-5 and up allows hotels. These intentions and terms would be locally calibrated for your city and culture.
I am intrigued by the NeoHouston author's approach. The level of regulation could be determined by the individual neighborhoods; some will surely want a Design District (DD on his map) while others might stick with the basic Transect Zones. In fact, when we are invited by municipalities to calibrate the SmartCode, a public charrette is held and the residents do guide the selection of the DNA from which the code is calibrated. We all do this by measuring and observing the characteristics of the best parts of your city, and codifying them to protect the good stuff and encourage more of it.
Sandy Sorlien

Brian Phillips said...

Thank you for confirming that the SmartCode is in fact intended to be another form of land-use regulation.

As I have said, I am opposed to any form of government land-use regulation on the grounds that it violates property rights.

Andrew said...


Your post ignores two important things.

First, Houston already has vastly more property regulation in place than what I'm talking about. The mess of arbitrary and unwieldy regulations we already have are comparable to any other major city in the US with the single exception that we have layers of egregious deed and plat-level restrictions (mandated by the city for plat recordation!) instead of a zoning map.

Second, the concept I'm discussing would involve a complete replacement of the massive regulatory system Houston already has in place - the strict focus of which is on forcing property owners to construct suburban, car-oriented structures - with a vastly reduced, lean model whose purpose is to tie development intensity to infrastructure provision, while allowing both urban and suburban building forms to be legal.

If you took the time to read what I write on a regular basis you would see that I too am an ardent advocate of the free market, and that I regularly write in favor of the removal of things like parking requirements, setback requirements etc.

I also think that so long as the city is in the business of providing public streets (and I'm open to the idea that they shouldn't be) that they should take responsibility for the sidewalk within the ROW so that property owners could build directly to the edges of their property without compromising multi-modal safety and mobility.

You tout the benefits of Houston's current regulatory system - which is, in fact, form-based code.

The problem is the current system mandates suburban-form development, and makes urban-form development illegal. Why aren't you writing about that as a violation of property rights?

Brian Phillips said...

Thanks for the comments.

I have regularly attacked city regulations regarding land use in Houston. I certainly do not support or defend what the city currently does.

My opposition to the SmartCode, or any other form-based code, is that it is founded on the principle that government should not be regulating land use. To argue for the SmartCode or New Urbanism is to accept the principle that it is proper for government to regulate land use. I will never accept that premise, in any shape or form.

We will never achieve freedom if we compromise. We won't eliminate regulations by advocating a form of regulation that we perceive is less destructive. We either advocate freedom--completely and consistently--or we don't.

A Different Brian said...

Mr. Phillips has stated his position clearly: He will never accept the premise that government has any right to regulate land use. In his other posts he has consistently argued this position as it relates to government regulation of other activities.

Feel free to correct an factual mistakes you might find in his post, but before trying to persuade him that your version of zoning is preferable to another, you'd first need to persuade him that there's ever a reason to give up any of his rights in order to participate in society. Until you persuade him of that, you will never get him to accept any kind of zoning.

A Different Brian said...

Stated another way, I suspect Mr. Phillips isn't interested in your goal of creating a better city. He has property, and others have theirs. Whether the things individuals do with their properties improves or worsens the city as a whole is of little interest to him. This is a mindset that is difficult for planners to understand. I invite him to correct me if I'm wrong.

Elaine said...

SmartCode is not only a “wolf in sheep’s clothing” but now the cute little zoning wolf wears an extra layer of makeup and dons sunglasses and a big floppy hat to further hide its intent. Sandy says SmartCode is intended to be “a regulatory tool” that “does have rules about what you can do with your property, to the extent that your property affects the public realm.” Hum, zoning? Further on, she says that SmartCode “does mean there are more definite choices in human habitats,” and that “the level of regulation could be determined by the individual neighborhoods.” There is no such individual called a “neighborhood”. You cannot put a big red bow on any land use code and call it a gift. The only choice I want in a human habitat is the one I’ve worked for my whole life and choose myself for the sole good of my family. Brian, keep up the good work defending individual rights!

Brian Phillips said...

A Different Brian--
I agree with the sentiment, but I do care whether about how land owned by others impacts the city. However, there is a right way and a wrong way to address such concerns. The right way is through reason and pursuasion. The wrong way is through force.

I love Houston, and I want to see it be a better city. But that can only be achieved through freedom for all individuals. And I readily accept the fact that some may use their property in ways I won't like.

Brian Phillips said...

Thanks Elaine--
I have been surprised at how adamant the advocates of the SmartCode have been in denying that it is a form of zoning.

Anonymous said...


Glad to see you are for reason and persuasion over force. Me too. How do you feel about coercion, though?

It has been argued that the de facto planning "regime" of Houston and other auto-dependent cities, with their street design and off-street parking requirements, induces motor vehicle use needlessly; it encourages longer trips between destinations, and creates public roads which are physically intimidating and uncomfortable for pedestrians to navigate, and which generally generates more accidents and fatalities.

So lacking safe and practical alternatives, folks who might otherwise walk do not; most choose to be shielded and drive instead.

Inevitably, road congestion follows, and government DOTs get caught up in a never ending game of road congestion whack-a-mole. The cost of widening projects are staggering, but more importantly pedestrian options become fewer and more distant with every dollar spent.

It's a vicious cycle, really. One where the built environment reinforces only one lifestyle choice: own a car, drive it frequently or for longer than you'd like. And if you are not happy with the arrangement, then there is no due process for you or others like you.

Is this not a coercive arrangement? Don't cities such as Houston have an obligation to provide options to would-be pedestrians? How about people who'd like to bike or drive a little less? How might such cities accomplish this under the current regime?

Short of a draconian solution to ban all off-street parking, I don't see how this is possible without neighborhood design and planning interventions. And if the form of public infrastructure interventions is to be coordinated with adjacent land uses to get a complete, pedestrian-friendly picture (a BIG if, of course), then a carefully crafted plan and code will be needed. Ideally, it should be one that is fairly easy to comprehend and with a history of precedents, like SmartCode.

In the absence of such planning and design codes - and leadership in support of them - cities will continue to perpetuate a system of coercion and non-choice by governmental neglect.

So it's not just about private property rights; properties do not exist in a vacuum. And there is a lot of shared responsibility and collaboration between public and private interests to ensure quality outcomes.

Accordingly, close coordination between the two is needed if our basic civil liberties to be preserved and protected in an equitable fashion. If we are to be free to walk our towns and cities with the feet God gave us, then things need to change. If it can be done without regulation, then great. But I have yet to see a satisfactory walkable place built in our time without it.

Brian Phillips said...


I am an advocate of individual rights, which means, the inviolate moral right of each individual to act according to his own judgment without intervention from others, so long as he respects their mutual rights. He may not use force, coercion, compulsion or anything of the sort to interfere with others, just as they may not use force, coercion, compulsion, or anything of the sort against him.

You claim that you are opposed to force, but advocate its use in the form of “planning and design codes”. What happens to those who do not follow the mandates of the “planning and design codes” you propose? Sooner or later, someone with a gun will show up and arrest the property owner. He will be fined, jailed, or both. And his “crime”? Refusing to use his property as dictated by government officials.

As an advocate of individual rights, I also advocate that all property (except for the courts, military installations, police stations, and administrative facilities) be privately owned. This includes: the streets and highways, water and sanitation, parks, libraries, and everything else. In such a world—which largely existed when America was founded—the owner chooses how to use his property without controls or regulations imposed by government.

The problems you cite—such as road congestion and dependency on automobiles—are a result of government intervention and the socialization of much of the property in the nation. When government provides something for free, or with an appearance of free—such as roads—demand soars. On our roadways, the result is congestion.

If there is a demand for denser development that is more pedestrian friendly, the market will provide it. But only if the government gets out of the way and removes all of the arbitrary restrictions imposed on developers and builders. Even though Houston is relatively free compared to other cities, businessmen must still jump through hoops and grovel at the feet of city bureaucrats. Remove these barriers and they can respond to market demands.

The solution is not more controls and intervention to fix the problems created by past controls and intervention. The solution is freedom.

It is all about property rights. The problem is that they are not consistently recognized and protected. And until they are, we will continue to witness battles over whose plan and vision should be imposed upon the entire city.

Sandy said...

Elaine and Brian #1, read closely. I compared the SmartCode to "conventional zoning codes." That is to say, the SmartCode is an unconventional zoning code. It is, in fact, zoning reform. Its regulatory categories are called Transect Zones. So of course it's zoning, but it's not separated use zoning. It does not mandate segregation of uses that isolate everyone who does not drive. Unfortunately, the result of no zoning at all is a similar segregation and sprawl. What kind of "freedom" is that?

Elaine made an interesting comment. She said "There is no such individual called a 'neighborhood'."

That viewpoint neatly encapsulates much that is wrong with our development patterns today - we don't see our neighborhoods as coherent entities to be protected, nourished, and planned. Without the protection of some kind of code, because the default is to the automobile, the walkable neighborhoods of our villages, towns, and cities rot, lot by lot.

Brian Phillips said...

You start with a premise--that neighborhoods should be walkable--but provide no justification for it. You then lament the fact that our neighborhoods are not walkable and proceed to conclude that government must use coercion to achieve your ideal neighborhood.

The fact is, the SmartCode advocates using force against property owners to achieve an arbitrary ideal. The fact that you, or even a majority of people, desire something, does not and cannot justify criminalizing actions you do not like.

For more detail on this, see my series of posts this week.

Sandy said...

Justification for walkability? Let's start with "freedom," since that is what you are looking for. There are several groups whose freedom is severely curtailed by living in separated-use sprawl. Those are: children; teens without driving licenses and cars; the elderly; the disabled, and those who cannot afford to own a car. To be clear, the particulars of walkability include daily destinations within walking distance, such as shopping, offices, civic buildings (schools, churches, town hall, post office, libraries) and parks and other recreation. They also include safe and attractive streets to walk along. But you would deny this freedom to all those people and make them dependent on someone who can drive them, or be isolated in single-use subdivisions and apartment buildings. You would turn those drivers into frequent chauffeurs, curtailing their freedom too. That's a lot of people's freedom that could be restored if only our neighborhoods were developed to be walkable. And we haven't even talked about the car accidents...

Brian Phillips said...

Freedom means the absence of coercion. It means that we can act without interference from others, so long as we respect their mutual rights.

You are arguing that the frustration of some desire means that we are not free. This is an equivocation on the concept “free”. If this were true, then my inability to buy a BMW, or take a cruise around the world, or attend the World Series means that I am not free. This is absurd.

Freedom does not mean that every desire must be fulfilled. If this were the case, then freedom becomes meaningless—we all have desires that are not fulfilled.

Interestingly, in claiming that our freedom is restricted by dependency on the automobile, you seek to actually limit our freedom by introducing government controls over our land-use. You propose to use coercion to dictate the actions of some for the alleged benefit of others.