Estilos de aprendizaje

A developer’s intentions frequently differ from the land use allowed by the zoning district in which the property is lo- cated. Consequently, the parcel’s zoning must be changed before development can proceed. To accomplish this, the developer must demonstrate, through protracted and com- plex analytic and legislative procedures, that the proposed zoning is suitable for the property and that the proposed use is appropriate for the community. Even when the com- prehensive plan recommendations support the zoning change, the developer must earn the support of neighbor- hood residents for a project that might dramatically alter their community, which can be a formidable task.

Success in the rezoning process depends largely on the technical analyses performed by the land design team. However, consideration of the rezoning proposal frequently takes place in a politically and emotionally charged atmo- sphere. Private sector motivations and public sector policies often come into conflict with each other and with residen- tial citizens’ concerns and desires. Therefore, the land de- sign team plays an important role in building strong community relations throughout the project. The rezoning process represents a major up-front expense to the land developer and comes with few guarantees that the goals of that investment will be realized. In view of the legal rami- fications of rezoning and constitutional concerns for due process, the development team relies heavily on its legal consultants throughout the process. Legal advice is impor- tant in ensuring that technical procedures are adhered to and that government actions are consistent with the re- quirements of state and local laws. During the rezoning pro- cess, it is typical for the legal advisors to take the lead. Reasons for Rezoning

From the land developer’s perspective, the most prevalent reason for rezoning is to increase the land use intensity for higher yield and greater profit potential. Developing a tract to the maximum density permitted by its existing zoning does not necessarily mean profits to the developer. In fact, in some instances development at existing zoning is not economically feasible. In a typical economic market, the

highest and best use of a property is a critical factor in setting land value and prices. This land value is established based on the scarcity of developable land in general and the demand for property of similar potential. The com- munity’s comprehensive plan and zoning ordinance play an important role in determining highest and best use. For example, a community’s comprehensive plan might suggest that a 20-acre parcel of ground located near a commercial area should be developed at a multifamily residential den- sity of perhaps 15 dwelling units to the acre. Although ex- isting zoning allows one dwelling per acre, based on the comprehensive plan recommendation, the land’s highest and best use becomes multifamily. Its value is based on the demand for multifamily development, the scarcity of multi- family zoned land, and the potential yield of the land.

Other motivations exist for seeking rezoning approval. As noted in Chapter 2, comprehensive plans often set a range of densities and uses, rather than a finite density. In evaluating the plan to determine potential uses, a feasibility analysis may suggest land uses for which there is consid- erable market demand in the area. The situation may exist where an intended use may be more compatible to the sur- rounding area than existing uses or uses permitted by ex- isting zoning. Further, the developer may wish to rezone because of a preference for or bias against a particular type of development.

Background Investigation

The development team’s initial step in preparing an appli- cation for rezoning is to conduct an analysis of the com- munity’s comprehensive plan. Many jurisdictions require a finding that the proposed zoning and subsequent devel- opment comply with the provisions of the comprehensive plan even if under the law of the jurisdiction the compre- hensive plan is a ‘‘guide’’ and not a ‘‘mandate’’ for specific development. Absent support in the plan for the new zon- ing classification, it is unlikely that the governing body would approve the rezoning application. Approval of a re- zoning that is inconsistent with the comprehensive plan in- vites legal action by enraged citizens against both the developer and the public officials who adopted the zoning change.

As noted in Chapter 2, adoption of the comprehensive plan is the culmination of extensive analysis and commu- nity participation. Consequently, findings and recommen- dations play a central role in defining the development program. Where the plan has recently been revised, it offers a strong perspective of current community opinion. These attitudes, towards both development in general and the cli- ent’s property in particular, will be raised during the review of the rezoning application by the approving authority. Neighborhood residents are extremely diligent in demand- ing that their elected officials apply literal interpretations of comprehensive plan language that they had a hand in de- veloping. The land design team must anticipate, respect, and accommodate these attitudes.

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Preparation of the rezoning application requires that the land design team conduct two levels of analysis of the com- prehensive plan: first, an analysis of jurisdiction-wide pol- icies, identifying the constraints and incentives imposed during the development process, and secondly, incorpora- tion of parcel-specific policies that address detailed require- ments into the development plan. Typical considerations are discussed below. Although much of this familiarity comes from experience with previous projects, the land design team should maintain an in-house reference copy of the comprehensive plan. This copy should be annotated to re- flect recurring issues and themes encountered in previous project plan reviews to aid the land design team in antici- pating future conflicts.

Each jurisdiction’s comprehensive plan is unique to that community, and a comprehensive listing of the types of pol- icies encompassed in a plan is not possible here. However, the land design team should refer to the following list, which can be referenced as a framework for identifying sig- nificant development issues, both jurisdiction-wide and parcel-specific, that must be addressed and resolved by the proposed development. Depending on local practice, these factors offer an indication of the types of studies and the level of detail of analysis required as part of the rezoning application.

䡲 Development patterns and ‘‘futures’’ scenarios: These define and distinguish areas where development is both desired and discouraged, usually identifying ranges of development density, intensity, and criteria against which development proposals will be mea- sured.

䡲 Adequacy of public facilities, growth management and

systems management programs: These often suggest the

commitment of financial and / or land resources to in- ternal and external improvements in order to accom- modate proposed development, including the location of such facilities, the timing or phasing of construction, and the impact of these factors on the development proposal.

䡲 Environmental and cultural preservation: The identifi- cation of the type of natural and man-made resources given priority by the community suggests the type of investigation needed to identify such resources and the method of protection and preservation to be used. Such criteria often affect project yield by reducing buildable land area and impact project design and con- struction.

The comprehensive plan’s geographic and functional components also provide information directly related to the client’s property. This information refers to specific circum- stances that must exist or conditions that may be applied in reviewing development proposals. The plan’s recommen- dations for individual parcels consider impact on the com-

munity and surrounding properties. Several factors play a role in assessing that impact and determining future use. Depending on parcel size, the ability with which develop- ment can be controlled by either the developer and juris- diction varies. As that control increases, usually with larger properties, the developer has broader opportunities for in- corporating features that make the project compatible with its surroundings. The comprehensive plan may recommend a range of land use intensities and establish conditions un- der which the jurisdiction considers different proposals. For example, the plan may call for a residential use range from five to eight dwelling units per acre, allowing the high range of eight DU / AC only with the satisfaction of specific de- velopment conditions.

As part of the background analysis, the land design team simplifies project design by assembling a checklist of com- prehensive plan guidelines. This checklist is instrumental in preparing the rezoning application, particularly so far as it raises issues of concern to citizens and community groups that must be addressed. Application format may vary sig- nificantly from jurisdiction to jurisdiction; however, typi- cally included is basic information as to ownership, location, existing and proposed zoning, and justification for the zoning change request. The planning staff, governing body, and civic groups will consider all issues during public hearing testimony. Early identification of these issues by the land design team provides the opportunity to consider and resolve potential conflicts and / or contradictions with the comprehensive plan.

The following list includes typical conditions and spec- ifications that the land design team can expect to find in the plan:

䡲 Base density or intensity recommendations for the client’s property.

䡲 Unique conditions imposed to reduce impacts, both created by or imposed upon the development. These may include:

▫ Screening, buffering, open space or landscaping, requirements beyond the minimum to protect pro- ject or adjoining properties

▫ On-site requirements for gradation of density; ▫ Special requirements for preserving on-site his- toric, heritage, geological or archaeological features ▫ Setback requirements from major roads, parks, or other features which exceed the minimum speci- fied in the zoning ordinance or other regulation ▫ Sound attenuation requirements

䡲 Conditions imposed to justify increases in allowa- ble density or intensity beyond base recommendations. These include:

▫ Parcel consolidation to bring small tracts into a larger parcel under a single developer’s control

▫ On-site improvements, intended primarily for occupants of the project, beyond those normally re- quired

▫ On-site amenities and services such as unique recreation facilities, open space, day care, public art ▫ On- and off-site improvements or dedication of land or contributions for public facilities and ser- vices, such as roads, schools, parks, utilities, and housing

▫ Innovation in plan design or a mix of uses in- tended to make the project less reliant on existing community infrastructure

▫ Innovations in layout and structural design to minimize the impact of off-site nuisances, such as noise

䡲 Criteria concerning the relationship between the proposed project and other land uses that would sup- port and serve the development.

Comprehensive Plan Amendment

Sometimes the comprehensive plan is outdated and the de- velopment team may believe that it no longer accurately reflects the community or reflects good planning principles. This occurs when a significant amount of time has passed since the adoption of the existing plan. In such instances, the land developer may have an opportunity to seek an amendment to the plan to reflect conditions that have changed since its adoption. Although the plan amendment process varies greatly from jurisdiction to jurisdiction, the opportunity to amend the plan will be available in some form.

Specific authorization to undertake a comprehensive plan amendment might require a vote by the governing body. Typically, the actual process is not unlike the one the community follows in originally adopting its plan with the primary difference being that it is focused on a very specific geographic area and is primarily land owner-initiated. It should be noted, however, that in some jurisdictions any- one can nominate a plan amendment whether or not they own the land subject of the proposed plan amendment. In undertaking a plan amendment, the land development team prepares an economic and demographic inventory of the vicinity. The proposed revisions to the plan, both maps and text, are prepared, along with justification for the change. When the proposed amendment is prepared, notice is given to the community through mailings, advertisements, and posted signs. The draft amendment is reviewed by the pro- fessional staff and will be the subject of meetings and public hearings before the community’s planning commission and governing body. Adoption of the amendment enables the developer to continue with the rezoning phase in accord- ance with the new plan recommendations.

This process is lengthy and uncertain and can add as much as a year to the development process. However, often the plan amendment and rezoning processes are conducted concurrently. Absent an expression of initial support from the staff and governing body, it is usually not a wise in- vestment of resources to proceed with an out-of-turn plan amendment. In such cases, it is prudent to wait for the community’s normal plan amendment process to introduce the proposed amendment.