Change of zone procedures

[CDT]

Just a procedural question here.

We received a CZ request from AG to GC (general commercial). The director decided he didn't like that so he's recommending the planning commission approve MU (mixed use) a totally different zone.

I told the director that procedurally we've not given appropriate notice to the public (i.e. the legal advertisement said GC, the letters to the public said GC) I told him to get an opinion from the City Attorney. He asked the attorney, but in (our) typical attorney style (by the way, he's not a land use attorney and he primarily handles other types of law cases) he didn't reply. So the director interpreted that to mean it's okay. What's your take?

Does it need to be re-advertised or can it go forward with the legal advertising and letter noted as a different zone?

[mendelman]

As long as your recommendation for MU delineates why this is better than GC and your analysis is explained at the public hearing, I think you should be fine.

You're just noticing what the request is from the applicant, not what your recommendation is/will be.

[CDT]

I was really worried that if all the advertising said something different than people recieved in their notices and in the newspaper then we could be violating notice requirements.

If the zone itself doesn't matter then why do we post the specific zone anyway?

[mendelman]

Yes, all the public notices (newspaper, letters & signs) should say the same thing.

But that doesn't, necessarily, preclude you from recommending a different zoning district than is being requested from the applicant. It would be up to the planning commission to decide whether staff's agrument for one district is better than the applicant's argument for their preferred district.

[Joe Iliff]

You're just noticing what the request is from the applicant, not what your recommendation is/will be.

I don't mean to disagree with my esteemed colleague, but just to round out the thinking on this . . .

I have heard of things like this challenged. The challenge was based on the idea that the final approval could give the applicant less than what was applied for and notified about, but not more.

For example, let's say you had three commercial districts: C-1 Neighborhood, C-2 Community, and C-3 Highway, and they were described in increasing terms of intensity. If an applicant applied for C-2, and you notified the neighbors for C-2, but the Council only granted C-1, which is less intense, the notice was adequate. If no one showed up to protest C-2, it is assumed they were OK with that district, and anything less intense. Courts have said you can't always assume the opposite though. They may have not protested the proposed C-1 they were notified of, but would have protested C-2 or C-3, had they known that was a possible outcome. So, in a case like that, the notification was inadequate. Think if he'd applied for AG changing to 1-unit-per-acre residential, and walked out with hundreds of apartments per acre or heavy industrial, the public only finding out after the public hearing was closed. They would have a legitimate complaint of inadequate notice.

I often recommend people apply for more than what they want, because you can always get less. But, you can't get more, without renotifying. It can be hard to compare districts that are so different. Is high-density multi-family "more" or "less" than your neighborhood commercial? Would someone who was fine with GC suddenly have lots of comments and questions and concerns about MU? It could be argued either way.

If your MU is considered equivalent to or less than your GC, I'd say Council could grant it if just GC was announced in the notice. If MU is considered "more" or significantly different than GC, the public needs notification of that possibility before Council rezones to that.

[Richmond Jake]

Joe Iliff nailed it. If your Mixed Use zone is less intense than the requested zone, you're OK with the notification process. If it's more intensive, beware.

Oh, another thought: consider if the MU zone uses are compatible with the existing pattern of surrounding development. Could have a significant effect on neighborhood perception of what to expect with the new zone district.

[Joe Iliff]

Joe Iliff nailed it.

Thank you, RJ. I appreciate that.

[mendelman]

I see your point, Joe and RJ, but I just feel that's playing it too safe.

But really, CDT's boss is going about this the wrong way. If he doesn't think GC is appropriate, but MU is than the staff analysis should delineate the reasons why MU is better than GC, and then make a recommendation to deny the request.

That would let the applicant decide whether to amend their request to MU.

[Joe Iliff]

I see your point, Joe and RJ, but I just feel that's playing it too safe.

But really, CDT's boss is going about this the wrong way. If he doesn't think GC is appropriate, but MU is than the staff analysis should delineate the reasons why MU is better than GC, and then make a recommendation to deny the request.

That would let the applicant decide whether to amend their request to MU.

I absolutely, 100%, without question, wholeheartedly agree with everything you have said in the above. Staff should recommend whatever it thinks best, including yes to GC, no to GC, yes to MU, yes to something else, no to any change, etc.. The question, however, wasn't "Can we recommend rezoning to a district different from the applicant's requested district?". The question was "Can council grant MU zoning after notification of a public hearing to consider GC zoning?" If MU is considered equal to or less than GC, the notice accurately described the possible council actions, and a proper hearing was held BEFORE council granted MU. If MU is not equivalent to GC, then council gave someone MU zoning without first having a public hearing about MU zoning. That's the problem.

What if you notified the public about a hearing for 1 house per acre, and the applicant walked away with zoning for a shopping center or paper factory or FutureGen or an SOB? What if the notice said the subject property was 10 acres, but council ended up rezoning 100 acres? What if the hearing listed the wrong address for the location of the meeting, or said 7PM when the meeting was held at 7AM? Any of these would give someone the opportunity to say they were excluded until after the decision had already been made.

If it gets to the council meeting after notice for GC, and the council, staff, applicant, and city attorney all think MU zoning is great, I (me, personally) would recommend having notice and a hearing about MU, just in case there is anyone who ignored the GC notice, but would want to participate in a hearing about MU BEFORE the council's decision is final. That's being a bit extra careful that all the i's are dotted and t's crossed, but sometimes that's the best way.

[Seabishop]

I've got to take the legalistic view. The application is for a change to a certain zone - you can't change it to another without properly advertising it even if its a less intense zone. There are due process issues involved where the public needs to be able to speak to the issue of the change to the ultimate zone. The easiest way to appeal a decision like this is based on a technicality.

[mendelman]

Joe, I understand what you are saying.

The best course for CDT would be to simply recommend denial of GC to the planning commission, period.

The reason for recommending denial would be delineated by staff with the explanation of why GC is not appropriate and by making the suggestion that MU is.

Let the commission and council decide to amend the request to approve for somethin other than GC or (mostly likely) they will just vote to deny the applicant's request for GC.

Then it is up to the applicant to review staff's reasoning for MU over GC and submit an amended application (with new public hearing and notices.).

[Richmond Jake]

,,,[snip]... Then it is up to the applicant to review staff's reasoning for MU over GC and submit an amended application (with new public hearing and notices.).

IMHO, that's not a very efficient way to operate. Another staff report, another public notice, another public hearing....Why not just git r done the first time through the process?

[Joe Iliff]

Joe, I understand what you are saying.

The best course for CDT would be to simply recommend denial of GC to the planning commission, period.

The reason for recommending denial would be delineated by staff with the explanation of why GC is not appropriate and by making the suggestion that MU is.

Let the commission and council decide to amend the request to approve for somethin other than GC or (mostly likely) they will just vote to deny the applicant's request for GC.

Then it is up to the applicant to review staff's reasoning for MU over GC and submit an amended application (with new public hearing and notices.).

Sorry. I misunderstood. You appeared to be saying that you thought CDT "should be fine" notifying "what the request is from the applicant" and then granting MU zoning without renotification, and that I was "playing it too safe" by possibly requiring notice of MU before a rezoning to MU. I think denying GC and then starting all over with MU as you describe above would be fine.

[mendelman]

IMHO, that's not a very efficient way to operate. Another staff report, another public notice, another public hearing....Why not just git r done the first time through the process?

True, but I am simply responding to the situation that CDT appears to be in.

You appeared to be saying that you thought CDT "should be fine" notifying "what the request is from the applicant" and then granting MU zoning without renotification, and that I was "playing it too safe" by possibly requiring notice of MU before a rezoning to MU.

I did say that at first, but your and RJ's opinion made sense and I changed by position.

But it looks like CDT's boss is putting them in a tough situation.

[Joe Iliff]

that's not a very efficient way to operate

True. You could try to broaden the notice to include more than GC, but that can cause confusion. Maybe if you waived the applicant's fee for a second application, and hurried to get them back to City Council it's not too inefficient. Which is better is a judgment call.

But it looks like CDT's boss is putting them in a tough situation.

Agreed. Were I director or city attorney, I'd be concerned about bringing this item to council, suggesting MU, everyone thinks it's a great idea, then having to be wet blanket and say, "let's wait and do it next month," when council's ready to do it that night. But, that's why they get paid the big bucks, right?

[CDT]

I love the viewpoints, thank you!

Just to give more information. The change to MU would be more permissive than the GC district and thus could be interpreted to be more intense. The MU allows waivers of the Zoning Ordinance, which the applicant would enjoy.

The whole things seems like a bad way to do business, all around. It's bad for the public who may receive the notice and say "yeah, I think GC's okay" who comes to find out the whole thing was changed to MU (which is specific "zoning" only to that property so all of the details need to be reviewed individually, as I am sure you're aware). There would be the second hearing at CC, so they'd get proper notice for that, but often a citizen can have the most influence at PC.

Here was our City Attorney's opinion

Pursuant to your request concerning the development, one of the purposes of the Planning Commission is not only to review zoning applications, but also to make what it considers to be recommendations as to the appropriate land use. Therefore, in specific answer to your question, yes, the Planning Commission can recommend to the City Council a different zoning application than requested by the applicant and, yes, the City Council would be able to accept that recommendation, although it was not specifically mentioned in the public notices before the Planning Commission.

Honestly, it surprises me. But I guess I just have to go with their opinion.

[Kraehling]

I think the bigger problem is that the application got to this point before the planning director chimed in with a recommendation contrary to the application.
The application must stand or fail on its own merits. It is not the job of a planning commission to change the application. That may not stand out as significant in this change from CG to MU, but what if the applicant wanted to rezone to Industrial and the commission recommended Residential?
I recommend the following: Talk to the applicant and say you'll recommend nothing but MU. Hold the meeting as noticed and ask for a continuance; then, renotice the meeting with the new MU possibility (even though it's a continuance) and proceed from there.