This Might Be a Good Time for Creative Zoning


No matter what else it may have already caused and/or will continue to cause in the coming future, one thing that we know for sure is that the COVID pandemic has done is alter how people will approach land use planning and development issues in the coming years, possibly even decades.

What will become of the traditional office project? Has actual human-based brick and mortar retail, after years of battering, finally met its match? Will the public – and therefore the market – demand more health care space? Have the issues related to living in close quarters put a dent in the growing demand – either by the market or by regulatory agencies - for higher density residential housing? And as for public transit, well…

This is not to join the recent chorus of pessimists who have been shouting from the rooftops of depopulated office buildings that the “city is dead,” but it is clear that governing and planning agencies must have the tools to react as quickly as possible to any given situation. And to be blunt, the concepts of “nimble” and “zoning approval” may never have ever appeared in the same sentence before this one.

It may be time to adopt a “Flexzone” concept. This would involve allowing developers to go through the approval process based on "30 percent" designs and use concepts - say it's a multi-use development that calls for 50 percent office, 30 percent retail, 20 percent residential - but be able to later change the usage types based on the vagaries of the market. Certain modification boundaries would have to be set to make sure that proposed parks, for example, do not end up as smelting yards but those parameters would be known to all at the origination of the process.

The basic idea is to allow the developer much greater flexibility in the actual final product without having to go through the political and approval hoops all over again. Also, built into the concept, is the need for permit windows would be extended significantly to allow for the best final use at the best time.

Sounds good to developers, but governing agencies would obviously be leery. What do cities in this system get in return? Money.

By agreeing to be part of such a program, a developer would pay an up-front fee based upon the estimated value of the project at build out (under the original specs). This fee – say 5 percent - would then be used to do immediate upgrades to infrastructure and the like in the targeted neighborhood (or it could be an agency-wide overlay of a jurisdiction if so desired).

So why would a developer pay the fee? Certainty - no more worries that a radically changed agency board or council could alter or stop the project because of the much longer time frames for actually completing the project. Also, the ability to modify use without going through the standard planning rigamarole would allow the developer to time actual construction to hit the market with what it needs most when it is most needed.

To be blunt, developers are attracted to simplicity and money. They also tend to have a herd mentality. Projects in areas that appear to be complex and expensive are not attractive – Flexzone could significantly diminish those concerns as the concept would allow, well, flexibility within agreed upon limits.

For example, a developer today thinks that a 50,000 square-foot multi-use building, with 20 percent retail, 20 percent office, and 60 percent residential apartments makes sense. However, in a few years, as the economy and market gyrate, it might have been much better to have split the uses differently, say 10 percent office, 15 percent retail, and 75 percent residential condominium.

When the time is right to build the developer could go forward as-is and submit construction documents or they could modify the plan and submit updated construction documents instead. The information would then be reviewed by staff only for final approval, allowing construction to begin (within a limited timeframe; basically the developer starts the standard completion clock with that final submittal).

While this may not lead to the immediate “turning of dirt,” Flexzone would almost surely lead to the immediate turning of virtual dirt. By opening up the planning flood gates developers (remember the herd mentality) would rush to plan and commit to the eventual construction, especially if the agency put a time limit on initial participation in the program. This would quickly create the pot of money needed to improve the area.

As a possible adjunct to the above, the agency could even take things a step further by designing (or at least assembling the parcels for) the projects themselves and then simply finding a developer(s) to take them on. This would, again, lessen developer upfront costs - essentially the risk always associated with the planning process - and still be funded by the fee structure.

And the concept would extend well beyond infill, standard multi-use projects to projects involving multiple structures and even into land use mapping (Initially plan for the market to need 100 single family homes and 50 condominiums but it turns out it would absorb better at 75-75? That change – prior to construction documents obviously - could be made).

As this is merely a general outline of the Flexzone concept, proper tailoring for local jurisdictions is key to successful implementation. Additionally, ensuring that it would comply with other legal mandates and regulations would of course be paramount.

For example, using California as an example, any changes to the initial design would still have to comply with the California Environmental Quality Act, or CEQA (or, as developers in a de-acronymizing mood have called it the “C’mon, Everybody Quit it Already!” law). This can be achieved by making sure that the “new” use would still fit within CEQA and, importantly, local traffic guidelines as well.

Additionally, as to the idea of the controlling agency formulating the project to “pitch” to the development community, great care would have to be taken regarding the issue of eminent domain. When the inexplicable New London ruling made public taking for private purposes legal, it created a backlash against the very idea of eminent domain and caused countless jurisdictions to ban (or at least severely restrict) the practice outright. Flexzone could revive the concept in part by only allowing “friendly” eminent domain, i.e. the landowner in question would still receive market price for their property but be enticed into a sale by the rather significant tax breaks they would receive because of the public taking.

So how would the development community react when confronted with a new fee? Actually, this may be much simpler than expected. In private conversations, every developer the subject has been broached to has been in favor as they understand the benefits of use and timing flexibility, the political/regulatory certainty involved, and the chance to pay fewer consultants who must now ride herd on every project in detail (and especially paying those consultants who point to local political vagaries and ask for more to “solve the issue” or those that straight-up churn the client).

Also to that point, it is crucial that the developers trust the program and know the fee money will be spent on what it is meant to be spent on and not disappear into the miasmic fog of some of the general expenditure fund.

Finally, there is the issue of architectural standards. At first glance it may seem that, to allow for the possibility of future use changes, that structure design would have to be relatively generic. However, by setting standards at the outset demanding robust architecture while allowing some features to change (moving more square-footage to residential? More balconies are fine, etc.) would be acceptable as long as the project as a whole remains at least similar to if not better than the original design.

At a time when development barriers have become almost insurmountable, the Flexzone concept could prove a great boon. Maybe it’s time has come.

Thomas Buckley is the former Mayor and Redevelopment Agency Chair of the City of Lake Elsinore, Cal. He currently operates a small public and government relations and planning consultancy. The concept above grew out a downtown rejuvenation project the City undertook and was just about to launch when the State of California eliminated all redevelopment agencies. He can be reached directly at

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Does it have some of these advantages already?