Agenda - Planning Commission - 10/06/2011

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these growth strategies. The problem with redevelopment in some cases is that cities are simply replacing the old inventory of property with a new inventory of the same property (albeit better), without increasing demand or lowering maintenance costs. The failings of the growth strategy led to the "smart decline" (planning for decline) movement. The goal of planning for decline is to concentrate on improving the quality of life for the existing residents and to reduce the future infrastructure costs of the city. This can mean concentrating populations into smaller geographic areas and returning other land to its natural and more efficient state. To date, smart decline has generally been applied in cities that have already un- dergone significant population loss, such as Youngstown, Detroit, and Cleveland. Using these principles, cities have employed regu- latory, administrative, and market -based tools to target vacant property for acquisi- tion or reuse. Regulatory approaches include requir- ing owners to maintain unoccupied proper- ties, enforcing code violations, using tax foreclosure for acquisition, and creating land banks to facilitate reuse. Administrative strategies include instituting better moni- toring systems to manage the inventory of vacant property and fast -tracking the permit- ting process for temporary or permanent reuse. Finally, market -based approaches might focus on adaptive reuse or the cre- ation of management agreements between nonprofit organizations and landowners. Realizing that their populations are not going to return to previous levels, cities are increasingly acquiring vacant property with the intent of demolition. Detroit had demolished approximately 3,00o homes by the end of September zo1o, with the even- tual goal of reaching approximately 10,000 demolitions. Even though it is the last resort for a city, demolition creates an opportunity to remove excess supply and reuse the land for more productive uses, such as recre- ational facilities, agricultural uses, or even renewable energy systems. And as cold as it sounds, demolition also allows a city to plan its decline strategically, deciding the geo- graphic layout of the city in the future and determining which neighborhoods should be preserved. THE LEGAL PRECEDENT FOR THE RELAXED ZONING OVERLAY Federal and state courts have consistently upheld the constitutionality of zoning over- lays because the public benefit purpose satisfies the rational basis test. However, it is important to review certain legal concepts relevant to the RZO. These concepts include procedural and substantive due process and "void for vagueness." Procedural due process is satisfied during the community engagement process, where local planning officials hold work- shops and public meetings with residents. These meetings provide an opportunity for residents to gather information, share their opinions, and create a vision for the future of their neighborhood. There are two criti- cal reasons why the RZO depends on com- to the local governments in determining what is deemed a "rational relationship." Whether the RZO works in practice is not critical, only that it is rational to think that it would work. Considering the logical relationship between allowing more uses and reducing vacancy rates, and the well -researched relationship between vacancy and community disinvest- ment, the RZO should also pass the substan- tive due process test. To avoid "void for vagueness" the zoning language has to be worded clearly enough for a reasonable property owner to understand. The RZO passes the test of void for vagueness but is an area for caution. In O This ;singla-family home in Fresno, California, sat for over a year after foreclosure, during which time it eventually was subjected to arson and vandalism. munity participation more so than a typical overlay. First, the expanded list of permitted uses should not create intolerable nuisances to residents. If it does, the municipality may face resource -intensive legal challenges on the back end. Secondly, the purpose of the RZO is to fill a void in the market by allow- ing property owners or the city to bring in services that were previously unavailable. The expanded list of uses should reflect the needs of the community or the properties will continue to remain vacant. Substantive due process examines the public policy purpose of a regulation and its presumed effectiveness in achieving that pur- pose. The courts give tremendous deference adding flexibility to the zoning regulations, the RZO must be clear in defining its trigger mechanism and identifying the expanded types of permitted uses. In addition to the legal precedent for the RZO in overlay zoning cases, it is also useful to look to other land -use regulations that use trigger mechanisms. Donald Elliot's (zoos) dynamic development standards concept provides a solid legal ground for using standards that change over time in predictable ways. Another good model in land -use regulations are Oregon's urban growth boundaries. The UGB process allows the respective cities to move the boundaries that determine developable land and den- ZONINGPRACTICE 9.11 AMERICAN PLANNING ASSOCIATION Ipage 4