Agenda - Planning Commission - 05/05/2016

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PROPOSg CNCLOS, PORCH /I PROPOSED SIGN. BVG7FI4 S UT3 -_�98�t✓f3'7 COMMON Au.A Enclosed porches, likethe one in the illustration on the left, commonly trigger variance requests. If most of these requests are granted, it makes sense to modify the setbacks in the code. However, if a sign like the one in the illustration on the right were granted a variance, this may indicate that zoning; board members don't understan d the purpose of variances. mitigate the impact of potential nuisances on -neighbors. The zoning board also considers whether the site is suitable for the use and essential to the use's operation. Conditional uses expand the degree of control by imposing conditions rather than relaxing standards. Both variances and conditional uses required public hearings and a finding to be made in a quasi-judicial decision as to whether the subjective stan- dards were met. The conditional use, and in some cases special uses, became authorized processes in state statutes. In fact, there are three types of conditional approvals found in statutes: conditional uses, special uses, and special exceptions. While there are subtle differences in purpose, they all suffer similar problems. Planned Unit Development The PUD concept was developed to address the rigidity of Euclidian zoning, which did not permit a whole range of designs (e.g., cluster developments, greenbelt communities, mixed use developments, or traditional neighbor- hood development). The process of rezoning land into a number of districts to match the proposed uses did not make sense. A different procedure was needed because heterogeneous developments are very different from site de- velopment of a single use. PUDs required the submission of plans that presented alternative standards, and approval bound the developer to follow the approved plan. In essence a PUD approval has its own zoning that differs from the code. This complicates enforcement in fu- ture years. Like variances and conditional uses, public hearings are required. WHY CONDITIONAL APPROVALS FAIL The original idea of a conditional use was that an application would be denied only when the site was inappropriate, other sites could bet- ter provide for the use, or nuisance mitigation was not feasible. Initially there were very few uses designated as conditional uses. Overtime the number of uses designated conditional was greatly expanded. In some zoning codes nearly half the uses were designated as con- ditional. Itwas applied to many common uses that lacked a high nuisance potential. These included gas stations, fast food restaurants, banks with drive -through facilities, automobile dealers, multifamily residences, and large uses like discount stores. While citizens were often concerned about unsightly appearance, traffic, signs, or lighting, these problems were not significantly different from permitted uses. Instead of fitting difficult uses into residential districts, the conditional use distinguished between commercial uses. Often the result was an existing commercial district being divided into two districts, with the conditional use permitted in one but not the other. This forced landowners to request both a rezoning and a conditional approval. Instead of a process where the major focus was protecting neigh- bors, it became a process subjecting uses to a special process that was not based nuisance mitigation but control. The failure of conditional approval is caused by subjective decision making and pub- lic hearings. Everybody benefits if regulations are predictable. This requires objective stan- dards that are either met or not. Maximums or minimums fit this; a developer, citizen, or staff person can determine whether they are met. Variances, conditional uses, and PUDs do not use objective standards but subjective deter- minations and public hearings that make the process adversarial. There is no way subjec- tive decisions can produce predictability. For example, variances are supposed to be quasi- judicial, but often boards focus on solving the landowner's problem rather than determining whether the regulations impose a severe bur- den. There are communities where 90 percent of variances are approved when approval should be between one and five percent. A major factor for conditional uses and PUDs is that the public hearings took on a life of their own, adding greatly to unpredictability. Citizens come to hearings to prevent change in their backyards. Commercial land often abuts residential, so citizens come to oppose any commercial use that is conditional even though other commercial uses are permitted. Develop- ers end up in an adversarial hearing with citi- zens seeking denial or a reduction in intensity. These adversarial hearings often are a vehicle for negotiation. The first rule of negotia- tion is to have a position from which one can retreat to the desired result. Often the best plan is not submitted from the start because attorneys want room to negotiate. Decision ZONINGPRACTICE 4.16 AMERICAN PLANNING ASSOCIATION I page 3