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Thread: Rezoning cases...

  1. #1
    Cyburbian
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    Rezoning cases...

    The planning commission I work with has moved towards being very apprehensive to rezoning parcels of land without prior knowledge of what is going to go in at the location. Even though the request conforms with the comp plan...

    Just curious on thoughts, similar cases, and how you approach it...

  2. #2
    Unfrozen Caveman Planner mendelman's avatar
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    Both munis. I have worked for required a definitive development proposal in conjunction with a rezoning request.

    The intent, I presume, is to prevent any nonconforming situations (such as rezoning a residential property to commercial, but residential is prohibited in that commercial district, etc.)

    Plus, requiring a definitive development plan gives the reviewing body a subustantive basis for decision making and makes any denial/approval easier to defend.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  3. #3
    Cyburbian
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    "Plus, requiring a definitive development plan gives the reviewing body a subustantive basis for decision making and makes any denial/approval easier to defend."

    Mendelman, what happens when you have say a car wash or a somewhat controversial use. Say the property is zoned for a less intensive use, but the comp plan designates the parcel for a more intensive classification, which allows a car wash. When people show up to protest the item, does the P&Z really have the grounds to deny such a case because of the applicant is proposing something more controversial, like a carwash? My thoughts are, no... The citizens have created the plan and have decided such a use is appropriate and in that decision the infrastructure should support such a use.

    I'm not sure it is completely relevant at that stage in the game, at the development stage I believe is when the issues are addressed. Maybe I am wrong? I'm just wanting to get thoughts on it. I know a number of P&Z Commission that want to know the plans of the applicant prior to rezoning a property.

  4. #4
    Cyburbian mike gurnee's avatar
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    I grew up with the idea that zones involved classes of land uses, not an individual, specific one. Anything else in my experience would be considered contract zoning.

    Yes, most all commissioners want to know the specific proposal. In my meetings I remind the commission of all the potential uses a certain district would permit. If your state statutes and judges permit coupling a zone change to a development plan, more power to you. But I must ask what happens when the development never takes place? Does the zoning revert?

  5. #5
    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by mike gurnee
    I grew up with the idea that zones involved classes of land uses, not an individual, specific one. Anything else in my experience would be considered contract zoning.

    Yes, most all commissioners want to know the specific proposal. In my meetings I remind the commission of all the potential uses a certain district would permit. If your state statutes and judges permit coupling a zone change to a development plan, more power to you. But I must ask what happens when the development never takes place? Does the zoning revert?
    Same here, and regardless of what they are proposes, once rezoned, anything allowed in that district would be a permitted use. I tell my Planning Commission not to consider the proposed use (if the applicant offers one) because prior to this past December, it didn't really matter - you couldn't bind an applicant to their development proposal.

    However, legislation was just passed (Dec. 04) in MI allowing contract zoning but municipal attorneys are basically saying - don't do it - until the wording is clarified.

  6. #6
    Cyburbian
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    Mike, that is exactly my school of thought, and it kind of bothers me when I have to sit through all the discussions of the proposal, which isn't relevant at the point. And as SW MI said its not binding so you never really, know. Or maybe the developer has the best intentions but runs out of Bling, etc... Never know...

    My priority in a rezoning case is #1 does it conform to the comp plan? Typically, what I try to do if a developer has a proposal, is push them towards a PUD, assuming it genearlly conforms with the comp plan ideas and strategies. That way it is all binding, once agreed upon...

    SW MI, how would contract zoning be used in your municipality? I don't like the idea myself, I think measures are in place (PUD) to give assurances... ???

  7. #7

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    This is the essence of why conventional zoning works so poorly in so many cases. It is about assumptions about uses, not about what is really going to happen. The concerns are legitimate.

    The answers given here are also legitimate. Conventional zoning is about classes of uses, which are sometimes broadly defined. I have often seen communities that had this frustration wiite more and more zoning districts, which get more and more specific as they go. That way lies madness, however, as my present employer has proven with its half dozen commercial zoning districts with only minor differences among them.

    How do you change it so it works? The answer is performance zoning, usually as a hybrid with conventional zoning. PZ starts with changing your plan so as to de-emphasize the future land use map and emphasize policies about access management, design, etc., etc. This can usually be done by neighborhood, leaving the conventional zoning in place where it works. Then you begin taking the old ordinance apart and inserting performance standards. By doing this you can actually talk about the impacts of uses, rather than the labels they carry (and all the stereotypical assumptions about uses).

    PS: Contract zoning is another cop-out. You don't know what your vision is, so you make deals one at a time. This eventually leads to a total loss of credibility for the planning process.

  8. #8
    Unfrozen Caveman Planner mendelman's avatar
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    Lee's comments are invaluable, and the way that zoning should go, but as for the question, I guess is depends on the method of review that a municipality has, and if the particular site involves rezone for new construction (vacant land), rezoning a developed property to a deisgnation fthat permtis a use that may not have been the intent when the site was designed, or simply rezone it to make it more "valuable".

    My former employer had a Site Plan Review process that was required for any new development or site changes over, like 1,000 sqft. This went before the Plan Commission. There was no "as of right" development option for anything beyond building a single family house.

    Rezoning review goes before the Plan Commission, as would the development plan, for review. The rezoning usually occurred first and was contingent upon site plan apporval. So, if site plan and rezoning were approved, the petitioner just had to apply for permits within one year of approval, after that, the approval, for everything, would become invalid. Therefore, if the developer couldn't go through with the building stage, then it would revert to the original designation.

    Now, the "as of right" method of development codes/processes could make it less likely to require a development proposal with a rezone request, so I agree with what others have said.

    I still think it is important to have a development proposal as a context for rezoning review. One can better understand the scale of impacts associated with the intent of the proposal. (God...I sound like a lawyer, or a career bureaucrat)
    Last edited by mendelman; 16 Mar 2005 at 2:12 PM.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  9. #9
    Cyburbian
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    We require a conceptual plan of what the applicant intends to do. However, in our staff reports we clearly indicate that all of the permitted uses and condidtional uses in the requested zone should be considered in making a decision. Recently, we had a car wash proposal that required a zoning change. The Planning Commission approved the zone change (consistent with the general plan), but later denied the conditional use permit becasue the applicant failed to provide enough documentation that the impacts from the car wash could be mitigated.

  10. #10
    Cyburbian SGB's avatar
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    If an applicant has a project in mind when they are requesting a change of zoning district (and don't they always?), we require a combined application of Petition to Rezone and the Site Plan/Subdivision application. Process works like this:
    1. Petition and SP/SubD application submitted to Town Board
    2. Staff review for completeness
    3. If complete, Town Board refers application to Planning Board for combined environmental assessment and recommendation.
    4. If positive recommendation from Planning Board, Town Board will generally approve the Petition to Rezone.
    5. Planning Board then complete site plan or subdivision review.
    We accept petitions to rezone quarterly during the calendar year. The process, including required public hearings, takes 2-3 months for each application. Longer if zoning board review is also required.
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  11. #11

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    Technically speaking, or I guess if you are challenged, there are states where you can't actually force an applicant to provide a specific plan for a map amendment.

    My own view is that if you have to change the map on a case-by-case basis, you have the wrong map. We are preparing to talk about a significant reduction in the number of zoning districts here.

  12. #12
    Cyburbian SGB's avatar
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    I should add that all of our rezoning proposals are reviewed by staff, Town Board and Planning Board for compatibility with adjacent uses and zoning districts, as well as for compliance with the policies in the comprehensive plan.

    Now, if only our comprehensive plan had useful policy language......
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  13. #13
    Cyburbian Tom R's avatar
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    zoning

    With the exception of PUDs, Ohio Townships are restricted by the ORC as to what they can legally ask for regarding a rezoning. We tell them that they have to look at the worst case senerio of permitted or conditionally permitted uses and base their decision on that.
    WALSTIB

  14. #14
    Cyburbian
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    Lee, I agree with you... If a comp plan designates appropriate zoning, and the applicant pursues the rezoning, in most of cases the applicant should be granted the zoning.

    Its a tricky line to walk, and if zoning ordinances or the structure is not appropriate then there will be issues. I think many towns and cities have problems with such. I am a fan of performance zoning and under my jurisdictions current structure PUDs. It allows staff to ensure some conformity to the comp plan, allows for flexibilty with uses and site plans, and gives everyone a sense of security with a development.

    Lee what is better, less or more classifications... Currently, I work with only 4 commercial districts and PUD's... I believe 4 is too few even in a smaller city of under 35k...

  15. #15
    Cyburbian
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    Tom, if it conforms to the Comp Plan on what grounds will they turn the rezoning down? Out of curiosity. I just don't understand how a City can consistently deny requests that conform with the comp plan. Turn the tables around, if they do whose to say I shouldn't be able to go in the opposite direction of the comp plan? Just my thoughts, our Council has done this in some cases and I just think if I was on the other side of the coin I'd pursue the case in court if the money was right on the development. Thinking I'd have a decent shot at having the City's ruling overturned?



    Just curious, that is why I brought up the discussion, every city handles things different. It is interesting to see how different cities handle it. I've only worked for one City so my ideas are a bit limited outside of talking to other planners and peeps here in Cyburbia!

  16. #16
    Cyburbian boiker's avatar
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    4 commercial too few? We've got two commercial zones, for a city of 115k.

    we also have two office zones, and a CBD zone.

    As for rezonings, we do not require site plans w/ rezoning because most commercial reviews are handled adminstratively.

    Our code is screwy. a 150k sq ft wal-mart can be administrativley approved (if developed as just a stand alone building without outlots, common entrances/signs, etc.) but a car wash (doesn't matter if it is detailing, automatic, manual, all inside, or outside) needs a special use and city council approval.
    Dude, I'm cheesing so hard right now.

  17. #17
    Cyburbian
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    Boiker, the 4 would include Commercial Office, Commercial General, CBD, and a Hwy Commercial type use. I think it tends to cause problems at times. If I had one more commercial zoning classification I think I could solve a lot of problems... Maybe I am wrong... LOL, the grass is always greener on the other side.

  18. #18
    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by Vlaude
    SW MI, how would contract zoning be used in your municipality? I don't like the idea myself, I think measures are in place (PUD) to give ssurances... ???
    The statute contains approximately 5 sentences, and doesn't offer much assistance. It just says that a rezoning can be approved with conditions regarding land use, etc.

    Here is the text:
    ******************************************************************
    CITY AND VILLAGE ZONING ACT Act 207 of 1921


    125.584g Conditions to rezoning land; offer by landowner; approval by city or village; time period; extension; lack of offer by landowner.
    Sec. 4g.

    (1) An owner of land may voluntarily offer in writing, and the city or village may approve, certain use and development of the land as a condition to a rezoning of the land or an amendment to a zoning map.

    (2) In approving the conditions under subsection (1), the city or village may establish a time period during which the conditions apply to the land. Except for an extension under subsection (4), if the conditions are not satisfied within the time specified under this subsection, the land shall revert to its former zoning classification.

    (3) The city or village shall not add to or alter the conditions approved under subsection (1) during the time period specified under subsection (2).

    (4) The time period specified under subsection (2) may be extended upon the application of the landowner and approval of the city or village.

    (5) A city or village shall not require a landowner to offer conditions as a requirement for rezoning. The lack of an offer under subsection (1) shall not otherwise affect a landowner's rights under this act, the ordinances of the city or village, or any other laws of this state.

    History: Add. 2004, Act 579, Imd. Eff. Jan. 4, 2005

    ***************************************************************

    It just passed three months ago, and I don't think anyone has tried it yet (or it just hasn't gotten too far). Municipal Attorneys, statewide, are advising to not use it. However, if someone comes in with an application, I can't see that we not accept it.

    The statute is clear in that it states that a municipality cannot require conditions - they have to be submitted in writing with the rezoning application. Basically they have to be initiated by the applicant.

    I have a problem with approving a rezoning based on the proposed use. What happens 10-15-20 years down the road when a new property owner wants to change the use and no one at City Hall knows what is going on? I think there will be a lot of enforcement issues.

    And our PUD ordinance is spefically for residential development, allowing for a mixed use with commercial etc. But, not for just commercial development - we will be working on amending it shortly!

  19. #19
    Cyburbian
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    I guess the City can not initiate the limitations. I recall in a case here in the past, where the issue was the possible use of the land for a liquor store if rezoned, the applicant submitted a restrictive covenant on the land prohibiting the sale of alcohol. I told the applicant the City would not require any additional material, but he presented it to the P&Z and it made the protesters happy. I don't know the legality of it, but if the applicant initiates the process I don't see it as contract zoning if the City doesn't require it or make it contingent upon such record being filed..

    Interesting stuff, thanks for the comments everyone...

  20. #20

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    My approach to zoning districts is that they should be based in either

    a) natural features, including the obvious, like the floodplain, and the less obvious, like hydrogeology, and/or

    b) neighborhood character, which will quite frequently mean that the districts have multiple uses.

    I do not find use, per se, to be a particularly helpful basis for planning decisions.

  21. #21
    Cyburbian Big Red's avatar
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    I'll have to respectfully disagree Lee Nellis. I think use is one of the few helpful guides for zoning. As we can not with certainty determine the market forces that will drive development in any one particular area it would seem prudent to examine the long term effects of certain uses and the projected future needs of other land uses. The character and relative activism of the community will shape this use discussion over time.
    Your environmental concern is laudable but most municipalities have fairly strict conditions for wetlands development and use, and, if they don't, there are standard federal protections that exist.Your call for including the imperfect science of hydrogeology as a criteria is downright scary man. Prime Soil classifications would be a much more helpful and exact tool for the site identification of future land uses than sending people on a hydrogeological snipe hunt.
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

  22. #22

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    There are quite a few places where the local hydrogeology is not well understood, granted, but where it is well-studied there are few more important sources of data. If I had time to add up the millions and millions of dollars taxpayers and ratepayers could have saved if jurisdictions I know about had thought about hydrogeology, it would be a very large sum. And my etc. certainly includes soils mapping. although I must say that I don't find the important farmland classifications as helpful as a well-designed LESA system.

    Since I was commenting on zoning districts - about which I am happy to reiterate my earlier statement, that use is not a particularly useful basis for their mapping - I didn't add that a set of well-designed performance standards (not dependent on districts) will do far more to ensure compatibility among uses than any set of mapped districts.

  23. #23
    Cyburbian Big Red's avatar
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    So how are these performance standards codified?
    Are they written into the regular zoning code or do they stand on their own like "development agreements" and the dreaded contract zoning?
    I like the concept and think something like this would go a long way toward requiring more forethought before the development ball gets rolling but how can you put them into effect and reasonably enforce them?
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

  24. #24

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    Performance standards are not case-by-case, like development agreements or a zoning contract. They are codified into the zoning or subdivision regulations, as appropriate, or are part of a unified development code (performance zoners have a propensity to do unified codes, but it isn't necessary). Most, though not all of the performance zoning codes, use mapped districts, and the standards vary from one to the other, but the mapping is based on environmental factors and neighborhood character.

  25. #25
    Cyburbian Big Red's avatar
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    So, you could have performance codes hard wired into your MasterPlan?
    Maybe the most any of us can expect of ourselves isn't perfection but progress.

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