Modeling the Dynamics of Informalization in Land Use Controls:
Using System Dynamics to Formulate Research
in Land-Use Plani
Fahriye Hazer Sancar
College of Architecture and Planning
University of Colorado
Korkut Sabri Onaran
College of Architecture and Planning
University of Colorado
In this study we used the system dynamics to formulate research in land-use planning by modeling the dynamics of ‘informalization” in land-
use controls. We found that our approach had several advantages compared to traditional social science investigations. Using SD, we
combined distinctly different theories to build a consistent model of land-use review processes. Furthermore, we were able to maintain the
richness and complexity of our initial conceptualization by combining quantitative and qualitative approaches and the model provided an
anchor for the subsequent stages of analysis and interpretation. Here we describe this model.
The formal mechanisms of design review in its broader sense include the establishment and implementation of traditional planning controls.
Here we will first introduce the concepts of formal and informal controls and then discuss traditional land-use and design controls in terms of
their main assumptions. Then we explore their contradictions with the concept of sustainability; the idea of rule-governed spatial morphology
and its compatibility with the desire for place-making; and the issues of use and abuse of discretion and implications for participation.
a. Formal and informal forms of control
Governmental control over social activities can be informal as well as formal. Formal control assumes a bureaucratic process working
efficiently by means of written law, intended to be a “gapless,” internally consistent, abstract, and rationally designed system. The application
of law to any specific case is politically neutral and predictable because the decisions are logical deductions from the law. This process is
administered by specialized professionals acting as neutral bureaucrats. Max Weber (1954), who says that formal control is the ultimate state
in the evolution of law, describes how the intemal logic of this ideal type works:
First, that every formal legal decision be the ‘application’ of an abstract legal proposition to a concrete Ofact situationO; second, that it must
be possible in every concrete case to derive the decision from abstract legal propositions by means of legal logic; third, that the law must
actually or virtually constitute a OgaplessO system of legal propositions, or must, at least, be treated as if it were such a gapless system;
fourth, that whatever that cannot be construed legally in rational terms is also legally irrelevant; and fifth, that every social action of human
beings must always be visualized as either an ‘application’ or ‘execution’ of legal propositions, or an infringement thereof (Weber 1954, p. 64).
In the field of sociology of law, informal control is defined by legal empiricists (also known as legal realists) as the "living law," i.e., itis based
on what is actually happening in society. For example, Macauley (1966) analyzes how formal legal activities create and support informal
processes. He shows how the introduction of new legislation sometimes confers on certain agencies discretionary powers or legitimacy to
conduct mediation/arbitration between stakeholders. Shapiro (1981) shows that many informal processes occur in tandem with the formal
activities of courts and suggests that judges play significant roles in initiating various informal processes such as mediation, arbitration, or
negotiation. Likewise, Schuck (1986) describes the importance of informal processes in Agent Orange litigation. Drawing a picture quite
different from WeberOs, these scholars conclude that most of the time legal processes work not in isolation, but in conjunction with informal
processes, where staff members act as participants rather than neutral bureaucrats, and political (or otherwise value-laden) interests exert
influences on the process.
It is important to note that Weber (1954) sees the formal model as an ‘ideal type” toward which the legal processes in capitalist, industrial
society move. Consequently, this model provides the comparative yardstick by which to judge existing legal processes. The legal
empiricists, on the other hand, use the informal model to study the actual legal process and its social consequences. In this study we take
these two types as the two extremes of a continuum (model presented in Figure 1), and expressing, respectively, modern and postmodern
assumptions.
As any control system starts to employ discretion and interpretation, its emphasis shifts towards procedural rules and its substantive content
begins to change. Formal rules contain mandatory specifications leaving no need for mutual adjustment through communication. They are
abstract and general as opposed to being situational or case-driven. Informal control systems, on the other hand, operate with rules that are
open ended assertions, so that interpretation becomes necessary in applying the rules to specific cases. Often (especially in common law)
the tules evolve case by case. Informal controls involve considerable communication and negotiation.
Examples of formalization: territorial specialization and bureaucracies
For Weber, instrumental rationality, formal law, and bureaucracy are inseparable processes associated with the development of capitalism in
modern societies (Bierne 1982; Giddens 1971). Weber (1991) argues that a new type of rationality, guiding an unprecedented kind of
systematization of activities, emerged with the development of Calvinism and the spread of the Protestant ethic, and that this type of
rationality constitutes the essence of capitalist development. Weber (1978) calls this type of rationality "instrumental rationality" as
distinguished from "value rationality.” Value rational action is "determined by a conscious belief in the value for its own sake of some ethical,
aesthetic, religious, or other form of behavior, independently of its prospects of success” (pp. 24-25). Action is instrumentally rational when
“the end, the means, and the secondary results are all rationally taken into account and weighed’ (p.26). If “rationalization” is done to
achieve, for example, equity as a value "consciously" held "for its own sake," then it is called "value rationality.” On the other hand, if the
purpose of equity is compared with some other (ethical, and/or aesthetic and/or religious) purposes to decide the most "productive purpose,”
then this weighing is called "instrumental rationality." For capitalist societies, it is fair to claim that instrumental rationality is synonymous
with productivity-oriented rationality. What is important here is that when this kind of rationality is employed in planning it demands a high
degree of technocracy and formal control.
Sack (1986) describes this rationalization and systematization process in terms of its territorial consequences. He defines the concept of
territoriality as "the attempt by an individual or group to affect, influence, or control people, phenomena, and relationships, by delimiting and
asserting control over a geographic area (p.19)". He suggests that one of the important territorial consequences of modemity is the process
of "thinning out": making more and more places containers of just one type of activity. Sack argues that this process runs parallel with an
increasing division of labor and increasing organizational hierarchies and specialization. For example, in a governmental office the hierarchy
of the titles and roles assigned to the staff usually corresponds with the hierarchy of spaces that are assigned to house certain activities only
(Lang 1987). Controlling activities in a hierarchical way by separating territories for different kinds of activities helps to rationalize and to
systematize activities. The hierarchical classification of spaces and a control system that assigns restrictions over territories become
necessary conditions for bureaucracies to function efficiently. Sack (1986) also argues that applying control to territories, rather than
activities or actors, impersonalizes social relations. And impersonalization in turn tends to eliminate activities that are not related to the
production process.
Territorial controls that are exercised by governments to impersonalize relations and to systematize activities imply high formalization. The
use of territorial bureaucracies by the government to distribute public services and to collect revenues, an example of a modem bureaucratic
system, is a sign of increasing formalism, a result of production-oriented rationality. The emergence of zoning can be seen as a part of this
formalization and "thinning out" process.
Giddens (1991, pp. 16-17) argues that the primary characteristics of modemity are "the separation of time and space and their recombination
in forms which permit the precise time-space ‘zoning’ of social life; the disembedding of social systems (a phenomenon which connects
closely with the factors involved in time-space separation)..." The modern concept of land ownership ~- usually referred to by planners as a
"bundle of rights" -is an example of the disembedding of social systems. Land ownership is an abstract concept that defines the land as an
empty territory that may in the future contain certain predetermined (and therefore controlled) activities. The concept of land ownership is
crucial to administering formal, rational, territorial controls. It has been a guiding force behind the "thinning out" process and the formalization
of land-use controls in the course of capitalist development.
Instrumental rationality and bureaucratization, together with the idea of scientific management of human affairs, provided the theoretical basis
for modemist planning models, which in tum established the procedural framework that supported the "thinning out" process.
Modernist Planning
Friedmann (1987) summarizes the recent history of planning as a progression towards rationalization. Planning is a product of modem
capitalist societies, and has progressed concurrently with the "gradual breakdown of the ‘organic’ order of feudal society” (p.21). Thus, one of
the consequences of the broader changes in social structure was the emergence of planning as a distinct social function. In the post-WWII
era many contemporary planners advanced a theory of planning based on instrumental rationality. During the 1950s and 1960s, Western
planning thought became almost coterminous with the rational-comprehensive model (Weaver et al 1985, p. 157) that provided an abstract
and idealized linear procedure efficiently linking available means to given ends. For example, Taylor (1984) invites scholars to advocate and
apply a procedural planning theory that involves identifying the problem, identifying possible courses of action, evaluating these possible
courses, implementing them, monitoring, review, and evaluation. The theory implies a linear step-by-step process abstracted and freed from
the specific context of particular situations.
Inherent in instrumental rationality is also the notion of planning as a means to apply “objective knowledge" to public decision making. For
example, Faludi (1985) states that in the same manner that the scientific method provides methodological standards for scientists,
instrumental rationality provides standards for planners to demarcate “responsible” decisions from "ill founded” ones. According to Faludi,
instrumental rationality is not only a tool to achieve the best decision, but also a condition of legitimation. In other words, Faludi believes that
“objective knowledge” together with formal procedural standards of rationality, gives planners grounds to claim that their decisions are value-
neutral and universally valid. The efficiency of territorial bureaucracies and instrumental rationality may explain the emergence of zoning in
the U. S. But the same framework is inadequate to explain its historical development.
A case of informalization: a short story of zoning in the U. S.
As it emerged in the 1920s, Euclidean zoning was intended to be a simple and rational land-use control system, similar to the formal ideal
type. As Babcock (1966, p. 4) states, "zoning was no more than a rational and comprehensive extension of public nuisance law." It was a
regulatory system to prevent "pigs in the parlor,” as the U. S. Supreme Court stated in Village of Euclid v. Ambler Realty Co. (1926), a
landmark case in which the zoning authority of local governments was recognized as a valid use of police power. It was a rationally designed
abstract system and therefore could be adopted easily by many other communities with only some small changes. As Babcock (1966)
states, "it was a simple matter to draw lines on the municipal street map showing the boundaries of the districts: six pages took care of the
simple requirements for the permitted uses, yards, and maximum height," and "it was apparent that one community could cut and paste into
its local code another municipality's zoning ordinance” (p. 5).
The Euclidian system was intended to provide certainty through bureaucratic means. It allowed for very limited discretion, except through
variances, a tool designed as a "safety valve" for the system and meant to be used as little as possible. The ordinance and the map were
enough to deduce a dichotomous predictable decision, i.e., a use in a neighborhood was either permitted (as of right) or prohibited. The
administrative zoning staft members were expected to apply these decisions as neutral bureaucrats without any bargaining or negotiation.
As early as 1966, Babcock noted that except for its intended protection of single family detached dwellings, "zoning technique has undergone
changes so dramatic as to make almost impossible a comparison of the device as it appeared in the 1920's with its progeny four decades
later" (pp.3-4). New mechanisms dissolved the dichotomy of permitted and prohibited uses, increased the discretion of the local staff, and
relaxed the mandatory specifications of the rules (e.g., assigning only densities and uses for PUD districts rather than drafting lot-by-lot bulk
controls).
First, the variance became widely used to permit certain prohibited uses. Then, after WW II, the special-use permit (also called conditional
use) introduced the idea that certain uses are not by right, but subject to the review of local authorities. These two mechanisms increased
(though in a limited degree) the freedom of local staff to accommodate different interests.
The concept of a floating zone, another tool introduced in the postwar era, started another informal process, namely bargaining. A floating
zone is “a zoning district whose requirements are fully described in the text of the ordinance but which is unmapped." The permission to
anchor the use onto land is given by the local authority upon the request of the developer. This technique became popular especially for
large-scale shopping centers and industrial or business parks (Meshenberg 1976).
Having evolved from the concept of a floating zone, the Planned Unit Development (PUD) provided an important alternative solution for
drafting lot-by-lot bulk controls. The PUD introduced two changes: (1) it relaxed the written mandatory specifications such as bulk regulations,
and, at least in the PUD scale, it provided flexibility in building and street configurations; and (2) it provided an alternative process to design
the development. Bamett (1982) explains, "in a PUD, only the major streets remain as ordinarily mapped; the subsidiary access and collector
streets are planned at the same time as the buildings. The result is a street layout much more closely related to both the natural landscape
and the design of the buildings than the ‘objective’ gridiron plan and the lot-by-lot development fosters” (p.67-68). From a legal perspective,
“essentially [a] PUD is a method of flexible land subdivision that permits use of newer design concepts, such as integration of varied types of
land uses, cluster development, and communal open space" (Lai, 1988: p.153).
Another too! that has radically changed the formal framework of zoning is special zoning districts. The special zoning district is "a district
established to accommodate a narrow or special set of uses or for special purposes” (Meshenberg 1976). There is an intentional ambiguity in
this definition; it is intended to facilitate different interpretations according to different interests. Meshenberg (1976) notes that "the
establishment of special districts must have an appropriate police power basis, and there should be a reasonable market demand for the
permitted uses .. . ." In other words, in special zoning districts, which uses and developments can be permitted depends on the discretion of
local authorities and on the developerOs ability to negotiate. Especially in the 1970s and increasingly in the 1980s special districts became
popular. New York City was one of the pioneers in designating special districts. In describing the example of Manhattan's Special Theater
District, Barnett (1982) signals some concems regarding faimess and due process:
The Theater District Legislation had set up a framework for negotiation between each individual developer and the Planning Commission.
Because the design of theaters involves so many complexities and variables, it would have been difficult to draft any other kind of legislation
for the district. Its special permit procedure has drawbacks, however. It allows the city government considerable discretion, which makes it
difficult for the public to be certain that it knows what is going on (Bamett 1982, p. 79).
In sum, zoning, which was originally intended to function as an automatic "traffic light,” has been transformed over the past seven decades,
into a mechanism that now requires "police" to direct the traffic. Are these changes in the concept and implementation of zoning positive or
negative? Is it good policy to provide discretion to enable different solutions, or is it better to depend on simple, abstract, formal controls and
therefore know exactly what to expect from future land use? These questions are central to planning theory and methodology. They represent
the tension between the advocates of formal and informal control. Babcock (1966) argues that the relaxation of zoning weakened its ability to
stand against various private interests and zoning became easily trimmed to the wind, in the windy chaos of the land market. On the other
hand, Smith (1983) suggests that zoning will be stronger as the system provides more discretion and local autonomy, and as it gains ability
to involve the different interests in the community.
b. Postmodern assumptions for territorial controls
The criticisms voiced against modemism's call for technocracy and instrumentally rational planning ultimately triggered a paradigm shift from
technocratic objectivism toward a plurality of paradigms (Habermass 1970). The emerging paradigms of place, sustainability, and
participation challenge the appropriateness of the rational model to address contemporary issues such as loss of sense of place,
environmental integrity, and local autonomy. These constructs are interpreted in different ways depending on whether the interpreter makes
formalist or informalist assumptions (see Figure 1).
Place paradigm:
The construct of place (as the antithesis of space) refers to the meaning and significance of particular place experiences that abstract spatial
analysis cannot capture. This perspective, especially the concept of authentic place identity, has been useful in contrasting modern
international-style architecture to vernacular and pre-modern urban environments. Numerous articles have contrasted "sense of place," which
implies warmth and empathy, with impersonal, generic, and alienating modern environments built since the 1920s (Alexanderet al 1987;
Calthorpe 1986; Jacobs and Appleyard 1987; Norberg-Schulz 1985; Trancik 1987; to name few among many others). White (1991) argues
that unlike the separation of uses in traditional zoning, variety of uses in a given place supports place-bound socialization and thus
encourages
FIGURE 1
ASSUMPTIONS IN FORMALIZATION AND INFORMALIZATION MOVEMENTS,
ASSUMPTIONS IN ASSUMPTIONS IN
INFORMALIZATION PARADIGMS FORMALIZATION
Instrumental
rationality and
MODERNISM scientific and
technocratic
planningtheories
Inter-subjecti vismand PLACE pelaaalatuiiaey
the argument of <p the trent of
attached values FARADION Homa bine reine
Planning and design Seen te ea
forcultural and SUSTAINABILITY management of
biotic systers
biotic diversity PAR ADIGM
The argument of
"wicked" problems and
PARTICIPATION
conflicting interests
Model of rational PARADIGM
argumentation.
collective place identity. Oldenburg (1988) studies places such as cafes, tea houses, bars, beer gardens, etc. -- where place-bound social
contacts occur -- and suggests that the existence of social activities in these places, which he calls "third places,” increases their
significance in daily life cycles; it adds authenticity and increases peopleOs attention and care for "place" in general.
The notion of "care" for places implies protection, which is the basis of many preservation-oriented control mechanisms. As the paradigm
evolved, the claims of authenticity, place identity, and sense of place became legitimate grounds to apply public control over private
property. Aesthetics, as an inseparable component of the experiential framework of place interpretations, also became legitimate grounds for
regulation.
What forms of control do these grounds indicate or require? So far the place paradigm has been supported by objectivist, subjectivist, and
intersubjectivist interpretations. The oppositions among these views are significant within the paradigm, and for design review, because each
interpretation calls for a different form of control.
The objectivist view claims that places possess certain qualities or properties independent from people's perceptions and attitudes. These
qualities may be identified as authenticity; they may give the place (or object) a special character, a sense of place, or aesthetic ambiance
and are assumed to be in the place waiting to be appreciated. Once these values or attributes are identified, it is possible to formulate rules
to preserve them as "resources." Various objectivist studies have attempted to define and record the visual qualities of natural landscapes
(Morisawa 1971; Litton ef al 1974; Polakowski 1975; Riotte et al 1975; also, for a review see Brooks and Levine 1985). Similarly, most
historic preservation guidelines are based on the concept of authenticity as an inherent quality that can be defined in terms of visual
attributes (such as style and features of historical buildings). Within this framework, the introduction of new concepts like place character or
identity acknowledges the existence of additional qualities embodied by certain places, waiting to be identified, measured, and preserved.
The subjectivist view, on the other hand, denies that place character, identity, or aesthetic qualities can exist apart from people's emotions,
sentiments, and personal memories. It therefore provides no grounds for public control over private property for the purposes of preserving
these qualities of place. After all, a place can be meaningless, faceless, and ugly for some, but still be meaningful and aesthetically pleasing
for others: "beauty is in the eye of the beholder.”
The intersubjectivist view incorporates the basic subjectivist assumption that there cannot be a priori place categories such as “authentic” or
“artificial,” apart from people's emotions, memories, and attitudes. But it differs from the subjectivist view by asserting that the values people
attach to places are socially constructed and collectively shared. The public can agree that certain places or objects — buildings, plazas,
scenic views, valleys, mountains -do symbolize certain values or reveal significant attachments ans are therefore worthy of preservation
(Appleyard 1979). Moreover, in the face of rapid environmental change, people may identify their rootedness with these places, so that
infringements upon the places or objects threaten the values and identities. Costonis (1989), one of the major supporters of this view, calls
these objects "icons." He claims that the disturbance of icons by the intrusion of new developments ~ aliens~ is tantamount to the
destruction of what those icons symbolize:
Other paired icons and aliens are readily called from court reports of the last quarter-century's battles. Illustrative are a pump storage plant
(alien) scarring the Hudson Valley's Storm King Mountain (icon); a 307-foot tourist tower (alien) desecrating the Gettysburg National Cemetery
(icon); a strapping office complex (alien) soaring above and demeaning the nation's Capitol (icon); power transmission lines (alien)
contaminating the view across New Haven Bay (icon); Marcel Breuer's hard-edged, fifty-two-story tower (alien) heckling [Manhattan's] Beaux
Arts Grand Central Terminal. (Costonis 1989, p.57).
The associations that make a place or an object an icon are not permanent; they are subject to change. At the time of construction, both the
Eiffel Tower and the Golden Gate Bridge were seen as alien by many people. Moreover, even the meaning of shared place memories can
change in time. Some memories are Obetter forgottenO; disaster, or a shameful and horrible event, such as a massacre, can change the
meaning of a place and create a collective discomfort.
The intersubjectivist view calls for a dynamic form of control. It assumes that development is not disturbing unless it is perceived as alien.
Furthermore, there is a tolerable degree of intrusion by aliens, and collective sentiments defining this tolerance can also change in time.
Therefore, public regulation for preservation cannot depend on bureaucratically applied static standards. Instead, preservation of icons
requires continuous reinterpretation of changing collective sentiments. In other words, the intersubjectivist interpretation of the place
paradigm calls for informal controls based on social communication.
Sustainability paradigm
In the history of American conservation, the opposition between "resource conservation" and "nature preservation" goes back to the tum of
this century. The "resource conservation” movement advocated ‘wise use” of natural resources in a utilitarian and efficient way; the "nature
preservation” movement advocated preservation of natural areas untouched, so that humans might appreciate and learn from the sublime
quality of nature (Koppes 1987). The resource conservation advocates supported rational and scientific resource management within
agencies like the National Forest Service; the nature preservationists introduced ethical principles such as respecting wildlife for its own
sake, concerns that guided the establishment of the National Park Service and later the Fish and Wildlife Service. In the 1960s and 1970s,
the environmental movement gained a large, popular basis and the concept of sustainability was introduced into social discourse, two distinct
views of sustainability emerged with differing implications for design review.
The first view focuses on the ecological management of biotic systems. It advocates the control of resources and management of
ecosystems in a coordinated and scientific manner (e.g., Ahern’s management model to implement an "extensive open space system,0 in
Ahern 1991). This view encourages centralized management. In the face of the rapid destruction of ecosystems it places controlling human
activities ahead of equity and cultural diversity. It depends almost exclusively on the scientific method to collect information and diagnose
systemic problems, and on technocratic, rational planning to control land use. It advocates standards and regulates compliance through an
auto-administrative bureaucratic system.
The second view emphasizes the linkages among cultural, biotic and abiotic aspects of environmental relations. Sustaining cultural diversity
is an aim inseparable from sustaining biodiversity. For example, Greider and Gorkovich (1994) emphasize the importance of cultural
definitions in assessing environmental impacts. This view contextualizes environmental problems in a broader systematic structure where
social and cultural processes form the significant part of systemic relations (Nassauer 1992; Thorne and Huang 1992). In this view,
sustainability requires, first, a shared understanding of environmental problems and a public commitment to the goal of sustainability (Sancar
et al 1992). Although it was initiated at the federal level and was criticized as being "toothless," the 1969 National Environmental Protection
Act's requirement for the preparation of environmental impact statements effectively initiated a local argumentation process. For example, the
Ostatement of public purpose” section requires an exploration of contexts that in tum establishes a clear link between public goals and local
ecological processes, thus increasing public understanding and establishing a common ground among the different parties before a major
federal project can be implemented.
Participation paradigm
‘Among the three paradigms, participation is the one that directly opposes authoritarian, technocratic, formal control over social actions. The
initial enthusiasm for the possibility of social engineering and scientific management of social systems died a few decades after WW II, and
planners and others began to challenge the theoretical basis of such planning. Rittel and Weber (1973), for instance, suggested that it is
impossible to follow the rational model in dealing with planning problems, because these types of problems are "wicked." Contrasting the
viewpoints of residents of Boston's North End with the views of planners and bankers, Jane Jacobs (1961) challenged the assumption of
value-neutrality by asserting that what the technocrats say and what people want are often times different. The equity planners questioned
the appropriateness of externalizing "value and ethics” and the notion of a value-neutral planner (Davidoff 1965, Krumholz 1982). Hasson and
Goldberg (1987) argued that "separation of rationalism from ethics is more imagined than real” (p.15). On the issue of implementing the
rational procedural model, Lindblom made a convincing argument that the planning process both is, and ought to be, incremental rather than
rational (Lindblom 1959), and suggested that coordination can be achieved without a central authority, i.e., "people can coordinate with each
other without anyone's coordinating them" (Lindblom 1965, p.3). Addressing both the procedural and substantive issues, Forester (1988a)
suggested that planners face questions of both equity and efficiency and deal with both uncertainty and ambiguity in everyday practice.
Forester (1988a) argued that the misleading separation of facts and values puts planners in a position where practical issues are reduced to
technical matters. Elsewhere Forester (1988b) suggested that reducing political and ethical issues to technical ones and manipulating public
ignorance in defense of professional power creates unnecessary dependency, generate unrealistic expectations, and immobilize and
depoliticise the general public.
The basic assumptions of the “participation” paradigm stand on these and similar observations. Participation is crucial in achieving effective
planning. Moreover, the paradigm sees participation as a condition to increase the quality of life. Smith (1973) suggests that participation
increases the effectiveness and adaptivity of planning and design and the flexibility and stability of society. The paradigm also assumes that
participation is both a means to obtain higher goals, such as social and environmental justice, and a goal in itself. Participation should widen
the circle of citizens who represent the breath and diversity of a community engaged in a collaborative dialogue throughout the planning and
design process (Sancar 1993).
¢. Dynamics of informalization and centrality of argumentation in design review
The postmodem worldview calls for land-use controls that reflect collective expressions of place attachment and allow for simultaneous
resolution of equity and environmental problems by ensuring meaningful participation of the public in land-use decisions. We suggest that this
worldview implies a particular notion of "design quality” that is based on two criteria: representativeness and responsiveness.
Representativeness refers to how successful the design is in accommodating collective place-related emotions, symbolic attachments, and
environmental concerns as they are expressed by different interest groups. Responsiveness refers to how succesful the design is in
responding to the particularities of the design context: the site, the surrounding land-use pattems, climate, environmental features, etc.
Representative and responsive design is rich and diverse -- neither monotonous nor chaotic.
Such a definition of design quality indicates a need for informal controls that are implemented with a high level of discretion and
communication in design review. On the other hand, informalization opens the door for potential abuse of discretionary power. Here we
explore this issue of accountability by describing and contrasting the dynamics of non-discretionary systems with those of discretionary
systems with and without public participation.
Towards a discretionary, yet accountable design review
As Booth (1989) suggests, rules work better when a clearly stated objective is shared by all participants. However, it is hard to formulate
general substantive standards to achieve design quality. Universally applicable formal rules, such as general bulk controls, are likely to fail in
achieving good designs. Booth (1989) argues that simple formal rules are at best limited to functional or utilitarian objectives and limit
diversity of expression and design quality. In other words, simple substantive rules are weak in responding to the complexity of specific
situations. Thus, in time, the rules become complex and detailed during the course of design review practice.
When regulations are too complex and detailed, however, their objectives become obscured and they can be easily trimmed to the wind. In
Booth's (1989) terms, "the more rules there are, the more there are occasions to depart from them" (p.409). As the objectives behind the
ules get obscured and the number of abuses increases, a need for simplification emerges. Consequently, these relations form a cycle
(Figure 2). In this cycle, as the rules are simplified out of the concem for accountability, design quality continues to decline; or, as the rules
get more detailed and complex, the chances of abuse increase.
In the absence of discretion the only way to overcome the problem of adjustability is to increase the complexity of rules. Therefore, if one
needs to avoid complex rules, discretion becomes an essential prerequisite to accommodate diversity in design. As discretion enters the
system, planning and design regulations begin to employ more and more procedural rules. Figure 3 illustrates the dynamics of a control
system that allows discretionary decisions. In this system,
FIGURE 2
DYNAMICS OF NON-DISCRETIONARY REVIEW SYSTEMS
NEED FOR
COMPLEX RULES |@-—— ~<¢—— vision Quatity
FLEXIBLERULES
‘
DIVERSITY AND
ADJUSTABILITY
ACCOUNTABILITY
+ NEEDFOR g| SIMPLE RULES
USE © simpLirication
FIGURE 3
DYNAMICS OF DISCRETIONARY REVIEW SYSTEMS
= + NEED FOR
DISCRETION DISCRETION + —_[pxorany |] so ALITY
mi y AND
ACCOUNTABILITY ADIUSTABI
sa 28a 2 ==
ABUSE PREVENTION
Note: In these pictures, positive signs (+) indicate parallel increase or decrease, i.e., as x increases, so does y (or as x decreases, so does
y); the negative signs (-) indicate increase or decrease in opposite directions, i.e., as x increases y decreases or vice versa. The negative
cycles refer to self-regulating cycles, the positive cycles refer to amplifying cycles.
discretion affects design quality by influencing its level of diversity. This creates a selt-regulating cycle. Discretion provides flexibility, so
decision makers may respond to the particularities of the context more easily. Moreover, use of discretion allows the system to
accommodate higher levels of communication; it allows reviewers and applicants to start an argumentation process during the design review.
Discretion enables design to be more responsive, but it doesn't guarantee that reviewers and designers will better respond to the context.
Similarly, discretion allows reviewers to involve in argumentation, but it doesn't guarantee that such argumentation will improve design.
On the other hand, in discretionary systems reviewers may use their discretionary power in an authoritarian or capricious way. Therefore, an
increase in discretion increases concerns about accountability. Introducing substantive formal rules and standards to the system solves this
problem by forcing reviewers to provide equal treatment in design review. On the other hand, standards limit flexibility in decision making:
they diminish the reviewers’ ability to be responsive. These two consequences of discretion (increasing responsiveness, and causing
concerns about accountability) define two loops, one positive, the other negative (Figure 3). When the positive loop becomes dominant, rules
become complex, abuses increase, and design quality diminishes; when the negative loop becomes dominant, flexibility of decision making
increases, and so does the likelihood of achieving better designs, until questions of accountability arise.
Participation by different interest groups in design review processes can make the system accountable as well as increase diversity in
design. Figure 4 illustrates the dynamics of such a review system, where public participation creates a second self-regulating loop that
controls the degree of abuse and accountability.
However optimistic this picture is, the success of participation in providing accountability depends on the communication between parties.
Many communities today rely upon public hearings and other similar mechanisms to receive public input into design review processes, but in
many cases these discussions are frustrating for developers, designers, and the general public because they lack methods for reaching a
common understanding of issues or mechanisms to increase the effectiveness of communication. When public participation is ineffective,
the effect of the self-regulatory loop decreases and concems about accountability and abuse of discretionary power remain. As a result, often
the review system tends to limit administrative discretion and formalization is maintained.
FIGURE 4
DYNAMICS OF DISCRETIONARY REVIEW SYSTEMS WITH PARTICIPATION
; + NEED FOR = Fas;
DISCRETION <}$—_—_ DISCRETION DESIGN QUALITY
ACCOUNTABILITY a PARTICIPATION
ABUSE PREVENTION
DIVERSITY AND
Note: In this picture, positive signs (+) indicate parallel increase or decrease, i.e., as x increases, so does y (or as x decreases, so does y);
the negative signs (-) indicate increase or decrease in opposite directions, i.e., as x increases y decreases or vice versa. The negative
cycles refer to self-regulating cycles, the positive cycles refer to amplifying cycles.
Another alternative, as we suggest here, is to find ways to increase the effectiveness of public participation. Thus, in facing concems of
accountability there are two choices: (1) formalization, i.e., introducing universally applicable rules (and giving up diversity in design), or (2)
informalization, i.e., increasing communication, sustaining argumentation, and finding more effective participation mechanisms (and not
giving up diversity in design).
Rational argumentation and universal pragmatics
For Goldstein (1984), a significant difficulty in achieving rational argumentation is that utilitarian reasoning may dominate argumentation when
there are competing arguments presented by different wordviews. He states that planning and design arguments use primarily three types of
reasoning: utilitarian reasoning (instrumental rationality), systems reasoning, and procedural reasoning (deontological, value-based ethical
reasoning). He suggests that there is a hierarchical relationship between these reasonings because of the norms they indicate. According to
this hierarchy stability and order (systems reasoning) comes first, then comes efficiency (utilitarian reasoning), and finally comes fairness
(procedural reasoning). The questions of whether such a hierarchy exists and whether utilitarian and systems reasonings can dominate
procedural reasoning in planning and design discussions need further empirical research. There is some evidence that planners do not always
use systems or utilitarian appeals. Howe (1993), for instance, shows that a deontological ethical approach is very common among the 96
planners she interviewed in four states. Similarly, Beatley (1994) argues that deontological value-based ethical reasoning is the dominant
reasoning guiding many environmentalist movements and preservation-oriented land-use decisions.
Majone (1988) argues that it is not instrumental rationality nor scientific validity but the ability to persuade, i.e., rhetoric, that matters in
guiding argumentation processes. That is, systems or utilitarian reasoning cannot dominate the discussion unless the argument itself is
presented in a persuasive way. Moreover, persuasion is a matter of not only logic but also of craft. He further suggests that value judgments
are an inseparable part of rhetoric. Majone's approach, which emphasizes the role of rhetoric and persuasion in argumentation, decreases the
concems about a specific type of reasoning dominating the argumentation. On the other hand, it underlines some other difficulties in
achieving effective argumentation: Parties may, and do, manipulate the communication.
Forester (1989, 1993) argues that the problems arising in argumentation processes in planning practice are due to what Habermas calls
“distorted communication." Habermas (1979) adresses the question of "distorted communication” by introducing the concept of "universal
pragmatics": certain standards generally taken for granted in common speech where mutual understanding is achieved. Successful social
communication assumes (a) comprehension, i.e., the proper use of language to communicate, (b) sincerity, i.e., one needs to be sure that
the other party is sincere, (c) legitimacy, i.e., the speaker's social position should be legitimate in the context of speech,and (d) truth, i.e.,
one must assume that the facts presented by a speaker are true and that the speaker's intention is to provide a factual basis for the
communication. According to Habermas (1979), when one fails to make any one of these assumptions communication cannot take place. On
the other hand, when the listener is convinced about these standards, i.e., when he or she makes these four assumptions confidently, the
outcomes are attention, trust, consent, and belief. Distortion occurs when parties manipulate these assumptions to avoid effective
communication. Sometimes it is desirable to avoid communication. For example, in bureaucracies, avoiding communication is a way of
dealing with various pressures. Distortion occurs, for instance, when a speaker intentionally uses complicated terminology that would hinder
easy comprehension; or when his or her expression and attitude give the impression that he or she is not sincere; or when he or she
intentionally distorts the facts to misinform the listener.
Forester (1989; 1993) argues that some of these distortions are systematic, i.e., they are consequences of institutional and bureaucratic
structures. Dealing with systematic distortions is difficult since they reflect power structures at higher levels. But there are also some other
distortions, he argues, that are easily avoided. Officials may even distort communications unconsciously; they may use unnecessary
technical language, they may seem uninterested, and the listeners may think that the planners are presenting evidence by choosing facts
arbitrarily. These are "unnecessary distortions.”
Given that argumentation is an essential part of design review processes, the question is, how does one overcome systematic distortions in
communications? What are the ways to achieve legitimacy, comprehension, sincerity, and truth in argumentation in the context of design
review?
Centrality of designerly argumentation in design review
Forester (1985) suggests the metaphor of “designing as making sense
together in practical conversations”:
Whether design originated in intuition or inspiration, the unconscious or acculturation, the voice of a Muse or another creative impulse, design
materializes and is realized through deeply social processes of review, evaluation, criticism, modification, partial rejection, and partial
adoption. . . . If form-giving is understood more deeply as an acitivity of making sense together, designing may then be situated in a social
world where meaning, though often multiple, ambigious, and conflicting, is nevertheless a perpetual practical accomplishment (Forester 1985,
p.14).
In public forums, design charettes, or design review negotiations, participants including designers engage in an argumentation process where
new ideas emerge, and then are negotiated and integrated into a design. Thus, argumentation and design become inseparable processes.
The significance of designerly argumentation in design review is twofold. First, designerly argumentation is possible only within a
discretionary and participatory design review structure. In earlier work, one of the authors suggests that the following principles are crucial:
integration (integration of planning and design in design review), interpretation (acknowledgment of the situational nature of knowledge in
design review), improvisation (spontaneous coproduction of design solutions), participation (representation of all interests), and learning
(reaching a mutual understanding and establishing a new knowledge base) (Sancar, 1993). Designerly argumentation is one way to implement
these principles. Second, a productive designerly argumentation has the potential to overcome most of the distortions in communication—
distortions in comprehension, sincerity, legitimacy, and truth.
Comprehension: In addition to spoken language, visual presentation techniques (plans, sections, perspectives, birds-eye views, diagrams,
sketches, etc.) also play a crucial role in designerly argumentation. (Although there are some difficulties in interpreting these representations
for lay participants, various techniques to ease this problem have been proposed [e.g. Craighead 1991; Yaro et al 1993].) These techniques
can help to materialize the abstract arguments by vividly displaying the consequences of planning strategies. Design arguments provide a
direct and instantaneous comprehension that no verbal abstraction can provide. The rules and controls become visible and comprehensible,
preventing many distortions that might be caused by complicated legal language or detailed dimensional standards.
Sincerity: In designerly argumentations, especially in forums where new design ideas emerge through a critical discussion of proposals, the
process fosters sincerity on the part of all parties. Participants express their concems and suggest new ideas, and these suggestions
encourage improvisation. The inputs are materialized in design, and participants can see the outcomes and intervene accordingly. This
spontaneity and sense of producing something together has the potential to establish sincerity among participants that would be difficult to
achieve in other forms of argumentation.
Legitimacy: When there is no agreement about the various parties’ positions and status, it becomes hard for them to recognize each other's
speech as significant and each other's arguments as valid. In the absence of such agreement, negotiating and resolving the issue of each
speakers legitimacy becomes an important part of the communication (Forester 1985). In conventional public review meetings, the role of
planners, reviewers, designers, developers, and other participants are rarely well defined. Are residents’ comments in a review commission's
meeting binding? To what degree do the reviewers have the authority to alter the project? What is the authority of the designer? Usually there
are no clear answers for these and similar questions in design review practice. Often the roles are negotiated together with the design itself.
Nevertheless, designerly argumentation can facilitate such negotiations. For example, during the review process social relations and
participants’ roles can be materialized. In an instantaneous co-production process, designers (or reviewers) can use their abilities to
synthesize and to integrate suggestions of other participants, and develop a design that makes sense to everybody. By this process, not
only do they establish their roles and their own legitimacy, but they also show that the roles of other participants have been recognized and
that participants’ concems have been crucial in developing the design one step further, and thus establish their legitimacy.
Truth: In any argumentation process arguments present certain facts as evidence (Majone 1989). These facts provide grounds for the
argument (Goldstein 1984). Through these chosen facts, an argument establishes its own relation to reality, thereby defining its context. In
an argumentation, if the listener thinks that the speaker is distorting the facts and obfuscating certain relations in order to support an
argument, the listener disbelieves in the speaker's evidence. In designerly argumentation, design arguments put forth evidence by presenting
facts and relations in reports, charts, and other verbal media; as well as spatial graphics such as maps, plans, and images. For example, an
open space master plan for a town justifies the proposal by explaining that "we need X amount of open space set aside because of this and
that reason,” and by showing exactly what it would be like to have an open space system such as the one that is proposed in detail. The
drawings, in other words, clarify the meaning of the statement Owe need open spaceO and prevent potential misunderstandings.
Achieving and sustaining a productive designerly argumentation in order to provide an effective public participation is not an easy task. How
central a role does designerly argumentation play in design review? Do the participants participate in designerly argumentation at all? One
may expect that they do, to a certain point, especially in discretionary systems. If so, to what extent are the principles mentioned above
achieved in practice? What are the major difficulties that reviewers face in achieving or sustaining designerly argumentation in design review?
Having formulated these questions we were able to explore the place of designerly argumentation in land-use review programs in small towns
in Wisconsin. Firstly, through a survey questionnaire, we identified planners’ attitudes regarding discretionary review systems. We then
interviewed a number planners to understand the actual dynamics of the reviews. We also studied a number of successful cases from
Boulder, Colorado. By analyzing these cases, we were able to identify difficulties and impediments in achieving and sustaining a designerly
argumentation process as well as factors that contribute to its success. We concluded that three key principles should guide design review:
(1) ensuring designerly argumentation, (2) integrating planning, design, and design review, and (3) establishing a consolidated administrative
structure to coordinate the various layers of review processes.
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