COMMENTS ON ORDINANCE 7742, LIMITATIONS ON SUCCESSIVE PETITIONS
February 12, 2004
Comment on lack of public input on Ordinance 7742 at Planning Commission meetings.
The lack of public input at the Planning Commission stage was probably due to the fact that no draft was available. The first draft with the exact wording appeared in the minutes of the July meeting available to the public in late August. A response to this amendment was not feasible without seeing the proposed wording.
Background
The Ordinance 7742 “Limitation on submission of successive petitions” regulates the timing of the re-submission of a rezoning application or UPR that has previously been denied by the City Commission.
There is a current ordinance dating from 1972 that prohibits the re-submission of identical petitions sooner than one year. The one exception allowed by this 1972 ordinance would be a petition that is considered sufficiently different by the Planning Commission, i.e., is substantially changed enough, to constitute a new application when reviewed by the Planning Commission at a non-public hearing. Such an application will be re-advertized for a public hearing.
Because a number of petitioners had applied for rehearings recently and the determination of “substantial change” lacked guidelines, the Planning Commissioners felt that they needed to adopt standards. To serve this function, after much discussion, amendments were recommended for adoption by the Planning Commission, were approved by the City Commission on its Consent Agenda August 12, and are now up for first reading as Ordinance 7742.
Purpose of these Comments
The purpose of this discussion of the ordinance is to bring to the attention of the City Commission the deficiencies of the current wording so as to allow a more effective ordinance to be written that will not be in conflict with or create misinterpretation of our current zoning ordinance and proposed Land Development Code.
Ordinance 7742 with added comments in blue text (the wording is the same, but the line spacing has been changed to accommodate the comments).
20-1808 Limitation on Successive Petitions
This section shall apply to any petition that has been denied by the City Commission for a zoning text amendment, zoning map amendment, or a Use Permitted upon Review:
a. Withdrawal of an original petition, after it has been advertised for public hearing, shall constitute denial of the application as if the public hearing had been held and concluded;
b. A successive petition application shall not be accepted for a period of twelve (12) months from the date of City Commission denial of the original petition if:
1. The original petition was recommended for denial by the Planning Commission; and
2. A valid protest petition was filed within fourteen (14) days after the Planning Commission concluded the public hearing.
c. A successive petition application for an original petition denied by the City Commission [presumably for the same property by the same petitioner for the same rezoning] may not be accepted until 120 days after the date of denial and only if it meets one or more of the following criteria:
1. A different zoning category has been petitioned for; [What “category” means here is not clear. The zoning provisions of the proposed Land Development Code indicate the term “category” (20-1702, page 9), means uses similar in type and impact, although the term, itself is not defined; and therefore “category” would probably correspond to the “Use Groups” in the permitted use tables of our current zoning Ordinance 3500. If a different zoning district is requested it would seem to this observer that the application would not fall under this ordinance, and therefore “category” in Ordinance 7742 does not mean “district”].
2. The same zoning category or district has been petitioned for and the density of use is 25% greater or less than the original petition; [The term “at least” should be inserted if this is what is meant.]
3. The same zoning category or district has been petitioned for and the intensity of use is 25% greater or less than the original petition; [“Intensity” must be defined numerically in order for this to be applied.]
4. Specific responses to the reasons for denial set forth in the findings of fact by the City Commission are, in the opinion of the Planning Director, addressed in the resubmission; [Question: Does this mean that the resubmitted application has been sufficiently changed; or does it mean that the findings of fact have been sufficiently rebutted by the applicant? Again, there should be standards included here that the Planning Director must apply. This needs rewording.] or
5. The use in the Use Permitted upon Review has changed location, operators, or use type substantially from the original petition. Substantial change shall be determined by the Planning Director using the findings adopted by the City Commission for denial of the original application as the gauge for measurement. [The criteria here are clear.]
d. A new petition application may be resubmitted after at least 12 months have passed since the date of City Commission denial. [It is not clear what is meant here. You either have a new application, or re-submission of the same application. You can’t have re-submission of a new application. It would seem logical that a new application, meaning “different” would not fall under the provisions of this ordinance, because this ordinance deals with “limitations on successive petitions” of the same request by the same petitioner for the same property. A “new” application should not be required to wait for submission.]
Discussion
It is understood that this ordinance deals with the re-submission of the same zoning or UPR application. The point of this discussion is that there are relatively few, if any, circumstances where the same application could be changed in the manner described by Ordinance 7742 in order to qualify for resubmission.
The adopted standards for resubmission cannot apply to conventional zoning districts..
Two criteria for allowing resubmission are (1) a change in density or (2) a change in intensity from that requested in the original application. However, a conventional district has permitted uses and general requirements that cannot be restricted or separated out as exceptions for any one applicant. Nothing changes the potential of what property can be used for within a conventional zoning district, regardless of plats or site plans. The density or intensity of uses allowed is the same for all properties within each conventional district. This point should be made clear in Ordinance 7742. Simply changing a suggested category (Use Group) already permitted would not bind the applicant to that category in a conventional district. There is no way that re-submission of an application for the same conventional zoning district for the same property by the same applicant could be changed under the provisions of this ordinance without actually changing the requested district, thereby rendering the petition inapplicable to this ordinance.
The authority allowed to the Planning Director for permitting resubmission needs standards.
Section c, No. 4,allows the Planning Director in his/her opinion, to decide that the “reasons for denial... [based on the findings of fact]... are addressed,” thereby allowing resubmission. This could mean that the conditions causing denial in the opinion of the Planning Director have been corrected. However, the alternative interpretation of Section c, No. 4, could mean that the applicant has presented convincing evidence against the City Commission’s “findings of fact” that would also allow resubmission. The wording should be changed to make clear what the meaning is, or the situation could arise where the Planning Director could arbitrarily reverse a zoning decision by the City Commission. In any event, without standards governing his/her judgment, the Planning Director has no guidance.
This ordinance also cannot apply to PUDs or PDs.
The allowed changes for resubmission of a PUD request also would constitute a change in zoning. A PUD can be restricted to specific building types and specific uses within the permitted uses and use groups allowed each district. Changing the specific restrictions on a PUD zoning district could affect both the density and intensity of use. For example, a PRD-1 District permits any housing type; however, under article 20-2004.1, a PRD district can be restricted to allow only single detached dwellings, which could reduce both the density and intensity of use. These restrictions (use category changes) are treated as zoning changes in PUDs. The PRD-1 zoning designation on the Zoning District Map would not distinguish the change, but the allowed uses for the specific PRD-1 district on this property would change from the general district requirements to those incorporating the restrictions; and the zoning ordinance reflecting this change would be published as an ordinance rezoning the property. Therefore, a PUD or PD application that had been denied when resubmitted as an application that either increased or loosened restrictions should be treated as a different zoning request from the original application and should not come under this Ordinance 7742. To include category and /or density restrictions in PUDs as anything other than a different zoning application poses serious problems: (1) if not treated (as the staff now does) as a different district from the unrestricted PUD district would mean that restrictions on a PUD or PD district would not be binding, and (2) the legal status of all published restrictions on PUDs could come into question.
This is an important issue, I believe, that should be carefully considered because it has widespread ramifications, especially regarding use restrictions on Planned Commercial Developments (PCDs). Resubmitted applications that changed permitted categories, density or intensity by adding or loosening restrictions, but not treated as zoning changes, would also affect the rights of adjacent property owners to legally protest damaging changes.
A change in the approach to this ordinance is needed.
Because of the differences in these three kinds of land regulation, I suggest that these three types of zoning–conventional districts, PUDs, and UPRs–should be dealt with individually in any ordinance governing resubmission of petitions. Also, the uncertainties written into Ordinance 7742 could create later serious problems with interpretation of our current zoning ordinance as well as with the proposed Land Development Code.
Standards are needed to determine substantial changes, but this Ordinance 7742 needs major revisions before adoption.
SUMMARY
The wording of Ordinance 7742 using the standard of density or intensity of use to determine “substantial change” when limiting the submission of successive zoning petitions for the same property, same district, and same applicant could not apply to a resubmitted petition for the same conventional zoning district. The reason is that each conventional district allows a maximum (and sometimes minimum) of these standards within each district that applies to every property alike. To apply for a change to these standards would require petitioning for a different zoning district, which would then not come under the province of Ordinance 7742.
Ordinance 7742 could not use density or intensity of use for PUDs or PDs, either, to qualify as a substantial change. The reason is because each PUD district also allows the same maximum standards to each property unless the district is restricted. When a PUD district is restricted, it is treated like an application for a different zoning district with the restriction processed and published the same as for a different application. If each new restriction on the same general PUD district were not treated as a separate rezoning and republished, the new restrictions would not be binding, because conditions applied only to plans can be changed when new plans are submitted. If new restrictions applied to PUD districts are not honored in this ordinance as rezonings, this would throw into question the legally binding status of all restrictions applied to PUD districts, including restricted PCDs.
The consequences of ignoring these points challenges the validity of the zoning ordinance itself in terms of its conformance to State law.
The authority given to the Planning Director to allow resubmission of petitions that have been denied by the City Commission is vague enough to be misinterpreted in a way that could allow him/her to reverse a zoning denial by the City Commission. Notwithstanding the potential for misinterpretation, which requires rewording to correct, this authority given to the Planning Director to reverse zoning decisions by allowing them to be reconsidered should be limited to specific standards or circumstances, or this authority should not be included in the ordinance.
The whole approach of this ordinance to the problem of successive submission of zoning petitions needs to be reexamined and revised in major ways before it is adopted. The only circumstances to which this ordinance could apply would seem to be UPRs.
Respectfully submitted,
Betty Lichtwardt