Agenda - Planning Commission - 04/01/2004

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that, as legally authorized evasions of other- wise appUcab~e ~onin§ ~imits, incentives such as greater bulk or bei§ht carry with them social costs of increased congestion and potential ~oss of light, if not air. 'Fo avoid this effect, some cities have proposed or utilized a two-step minuet in which they downzone first, then offer an incentive that returns the owner to the original zonin§. This dance is not only disingenuous as an exercise of incentive zonin§, but rosa raises legal difficulties under applicable constitutional law. What are the criteria for the "necessary, sufficient, but not excessive" test? Necessary means the developer would not voluntarily provide the amenity but ~or the incentive, and the public sector cannot Force the developer's hand. For example, a city cannot require an amenity whose cost would bankrupt the devet, opmenl:. A city may encounter legal objections if it requires an amenity whose connection to a harm or need generated by the proposed development is unproved, A city should not mandate the provision of public amenities if the creation of such mandatory climate would otherwise damage its econom- ic vitality. "Sufficient, but not excessive" means that an incentive must g'ive the devel- oper a reason, but not too much ora reason, to eh§age in the transaction. In reality, incentive zoning has often failed one or more of the test criteria. At times, the incentives have been far in excess of those sufficient to stimulate the desired. private behavior, resulting in a windfall for developers. At times, the pt~blic sector could have required the provision of the amenities without' incentives, thereby avoiding the social costs accompanying the excess bulk or height. At times, even when the incentive was necessary to stimulate the desired private behavior, its social cost, especially to neigh- bors next to the now larger building, has been excessive. At times, the quality of the ameni- ties themselves, provided and managed as they most often are by the private sector, has been disappointing' from the beginning, or over time. In 5hart, the bloom is off the incen- tive zoning rose. GETTING TO YES-OR AT LEAST SOMETHING In the early days of zoning, to the extent that regulators enjoyed discretionary authority, they generally had two responses to developers proposing a new buildin§: yes and no. Starting mid-century with the ~reater use of special permits, and now a standard feature of large proiect review, today's repertoire of regulatory responses has expanded by fifty percent: yes, no, and maybe. That last response is the opening' line in an extended discretionary review process that resembles a negotiation. The developer submits a development proposal from which she is prepared to negotiate downward and laterally. Her chits are. modi- fications to size, shape, use, and other tra- ditiona[ zoning concerns, as well as provi- sion of public benefits that lubricate the political environment For approval. Some of these public benefits ~enuinely mitigate harmful aspects of the proposed develop- ment and as such deserve the sobriquets of "mitigation" and "related amenities." For example, a developer agrees to build a tran- sit stop or added roadway capacity to accommodate users of her proposed devel- opment. Indeed, many of these mitigation measures might be required by parallei environmental reviews. Other proffered benefits, however, appear: less to be miti- gation and more to be "payoff" to secure approval from important constituencies. How about a nice community center, winks the dev.eloper, or perhaps a set-aside of lobs or housing for nearby residents? Such benefits may not even be described in the zonin§ ordinance or legal documents recording the public approval ZONINGPRACTICE oz.o, A~ER~CAN PLANNING ASSOCIATION J~o~ge 'J/