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When Visions Diverge

When Visions Diverge: What Happens When Property Owners and Cities Want Different Land Use

The crack of the gavel thunders through the room over the buzz of hushed whispers. Alone at the podium, the property owner stands stunned by the city council action denying the vision for a property. The investment in preplanned designs, attorneys, consultants and engineering circles the drain.

Hanging above it all is the “vision.” A parcel of land, lines on a drawing, colors on a map and the ghost of a citywide vote. A document, called a general plan, presses down on the hope, the plan and the decision, “Motion to deny the development proposal passes. The council finds the project is not consistent with the general plan.”

Jordan Rose, founder of Rose Law Group

Jordan Rose, founder of Rose Law Group.

“During the recession, some investors looked at bargains and not zoning,” says Scottsdale land use attorney Jordan Rose, founder of Rose Law Group. “There was less diligence, and some acquired land without regard to what the general plan said about the property.”

Development plans have been stalled or blocked by recent Valley city zoning actions. Several cases―primarily in the East Valley―have brought the issue into greater focus. The recovery-driven interest in turning properties or resurrecting old plans causes some of the conflict.

In many ways, local governments are market-driven, but driven by a different market than commercial real estate. The Arizona legislature forces towns and cities to depend on sales tax for general fund revenues―the basic operating income for key community services. This in turn drives local governments to create retail and employment site opportunities through the general plan. Without revenue-generating undeveloped land, a city council is not going to have the wherewithal to fund future growth and the requisite public safety, parks and libraries.

The sales-tax dependence led to cities to be very protective of revenue-generating land set aside in the general plan. Retail business has significantly changed over the past decade, but local government funding mechanisms continue to use 20th century revenue models for a 21st century economy.

The General Plan
In Arizona, every city and county needs a general or comprehensive plan to provide a long-range blueprint of development patterns within current and future boundaries. Plans are supposed to be updated every decade and ratified by the voters. Several plans are slated for ratification this year―including Tempe, Scottsdale and Mesa.

“A general plan is a large and complex document, it carries a lot of implications that are not apparent when voting for ratification,” says Ralph Pew, member and manager, Pew & Lake, PLC, Mesa.

The comment “the plan can’t be changed because voters approved it” is often raised during a project hearing when there are proposals to amend the land use map. Pew says, “The plan itself contains the standards for approving major and minor amendments. Change is a planned part of the process.”

John Berry, founder of Berry Riddell & Rosensteel LLC, Scottsdale, says that preparation is the key, “When a client comes to us, we start with the staff, listen to neighbors and talk with elected officials to try to foresee any major issues. It’s incumbent on the developer to give the city the facts to support the project. Opinions and project economics alone are not going to gain an approval.”

Rose agrees, “We’ve seen clients with plans that just don’t fit with the general plan. This means a lot of work up front to move the project forward, but sometimes, we have to tell them, ‘it isn’t going to be approved.’”

Before the recession, development was moving so quickly that a zone change or general plan amendment denial just meant the developer moved on. “We don’t have a lot of land use litigation in Arizona,” says Pew. “Pre-recession, the pace of development and number of opportunities, made it possible for the developer to shrug off a denial and move on to the next project.”

It’s different in the planning pipeline now. “When the recession ended, we were tickled to get applications once again,” reminisces Mesa Planning Director John Wesley. “There was an appetite to make things happen, and most projects were approved. That’s different now.”

Developers are seeing the difference during the hearing process.

“Councils are busy and they don’t like controversy,” says Berry. “The key to success is to listen closely to any objections early in the process and eliminate as many issues up front. When I go before a city council, I want to be able to say we have many points of agreement and just a few points of disagreement, if any.”

Pew emphasizes that getting an approval requires more work on the facts up front, “The more information we can give a city with the application showing the need for change, the easier it is for the city council to ultimately say ‘yes.’”

All three attorneys say that they will provide economic analysis, traffic reports and other empirical facts to back up an application.

Wesley says that he’s seeing more of that too, “It used to be developers would come in and say the project doesn’t pencil without the changes being approved. That doesn’t show any benefit to the city, and today, the council is less likely to be persuaded.”

Converging Goals
Cities and developers are looking more closely at project and city objectives to see how the divergent goals can be brought closer together. “In Mesa, we had a pattern of putting commercial development on every major street corner. Recently, an owner showed us that the area was barely supporting existing commercial on two of the corners, and a third corner still had undeveloped commercial zoning. Their argument made sense and the city approved a residential rezone.”

Even with numbers and well-reasoned arguments, sometimes visions are irreconcilable. “There are some properties in cities where general plan amendments are just not going to be approved,” cautions Rose. “We see cities with long range plans for an area, and the council is not going to change their vision on a piece-by-piece basis.”

“In Mesa, we have some neighborhoods where there is flexibility, if an owner makes a case,” points out Wesley. “But there are some areas where we need to protect the city’s plans even if the land remains vacant for a while.”

A Need for Change
Some point to the success of the Price Corridor in Chandler where the city held firm on keeping land use for large corporate and single-tenant users. That is changing this year following a report by The Maguire Group the city commissioned. Changing economics and use patterns opened the door to maintaining the same corporate center feel, but now permitting smaller users and multi-tenant buildings. As soon as the amendment’s approval was imminent, the Douglas Allred Company filed plans for a hotel and mid-rise office on the Park Place campus.

Allred Park Place building five shell.

Allred Park Place building five shell.

“We’re starting to see cities, like Queen Creek, take a look at actual absorption rates and land use needs when considering general plan amendments,” says Pew. “Policy is starting to move away from the pre-recession rigidity that all commercial and employment lands needed to be preserved.”

Before the economy plunged, it was common for land owners to seek highest-and-best use zoning in order to better position the land for sale. The convergence of Internet shopping, the housing crisis and a push for infill development changed land use demand and affected patterns.

“Cities are becoming aware that we’re starting to run out of land area,” explains Wesley. “We’re looking more carefully at changes, because there is generally no going back.”

“As long as land remains undeveloped, it is possible and sometimes reasonable to change zoning again,” says Pew. “With the real estate market shift, owners start looking at what’s going to work. It’s possible cities are going to see requests to shift zoning to match market demand rather than market value.”

Finding Balance
Wesley talks about listening to developer ideas and goals, “Sometimes what’s wanted isn’t a perfect fit, but we’ve worked with owners to try and accomplish their objectives. We had a recent project where we mixed land uses so that both (Mesa) and developer goals were mostly achieved.”

“A lot of the time, the public is wed to the general plan,” reflects Rose. “The general plan is a vision for a community, it can’t just be simply dismissed. There are a lot of moving parts.”

In conversation with each of the three attorneys, one word is in their comments again and again: “understand.”

“Listen and understand what the neighborhood expects from a development,” Berry says.

Rose advises, “Understand what’s expected and be creative to bring ideas to the table.”

“Understanding the stakeholders and the project neighborhood is a big key to success,” counsels Pew.

Understanding city expectations can be the first step on the road to meeting an owner’s property objectives.

Planning and Zoning

Planning & Zoning: April 2014

City of Scottsdale
The City of Scottsdale is preparing a zoning ordinance text amendment and has invited the community for review and comments. Amendments to the text are proposed to update definitions and regulatory language related to terms used to describe a responsible party such as property owner, applicant and other related terms. General cleanup revisions are also proposed to correct section references, eliminate duplication of requirements and improve the overall consistency of the ordinance. The ultimate objectives of this proposal are to add consistency, improve the usefulness of the ordinance and to provide clarity in the language of the ordinance. One meeting, with the public invited, has already occurred in January but others are to be scheduled.

Town of Gilbert
As demand for multi-family housing continues to increase within the Town of Gilbert, town leaders are proposing to tighten restrictions for developers that are considering building apartment complexes in commercially zoned areas. These new restrictions would add a number of conditions that a potential apartment developer would have to meet to get an apartment complex approved in regional commercial zoning. Those conditions would include a requirement to provide a mixture of land uses, such as office or retail commercial, on the proposed apartment parcel or on an adjacent parcel; a requirement that the project be compact or dense by sharing parking with adjacent development; a requirement for pedestrian-orientation or to have pedestrian accessibility, convenience and attractiveness; a requirement to address local transit system connections with facilities for pedestrians, bicyclists and automobile drivers; and a requirement to incorporate attractive public spaces that might include public art and serve as public gathering places. The objective of these newly proposed regulations is to give the town council and the planning commission more flexibility in reviewing any proposed apartment complexes and allowing them the option of rejecting proposed plans if they don’t meet specific new requirements. The proposed new regulations went before the planning commission in January, and members were generally favorable to the new standards but suggested a need for some revisions. The commission will review the standards in a study session and eventually vote on a recommendation, after which the proposal will go to town council for approval or rejection.

City of Maricopa
Recently, the Maricopa City Council approved the annexation of approximately 850 acres of land owned by a partnership known as Anderson Russell LLC. The property is located south of the Maricopa-Casa Grande Highway and straddles both sides of Anderson Road while extending southward to the Teel Road alignment. This annexation is significant in that it now allows the city the capability to expand to the south by annexation. City officials are already contemplating the annexation of additional properties adjacent to the Anderson Russell property. A general plan amendment has also been approved, changing the property to a master-planned community. Although a portion of the newly annexed property was within the City of Casa Grande’s planning area, an agreement exists between the two municipalities that allow that private landowners within unincorporated areas of the county to be able to choose which city they wish to be annexed regardless of which city’s planning area they are located in.

City of Peoria
The City of Peoria has recently announced the initiation of a self-certification pilot program. Qualified applicants to the program must be active Arizona licensed design professionals who have attended the self-certification training offered by the City of Phoenix (phoenix.gov/pdd/topics/scp.html), and have successfully obtained a Building Plans Examiner Certificate from the International Code Council. Through this program, eligible building permits can be issued in as little as three business days. This self-certification program allows qualified professionals to quickly bypass the plan review and examination process by self-certifying a projects compliance with building codes, standards and ordinances. However, the pilot program does not include zoning clearances, parking, signs, fire, environmental services, landscaping, grading, industrial/utilities, floodplain or other land development codes. The program was initiated this past January. To learn more of the program’s details, visit peoriaaz.gov/selfcert.

City of Buckeye
As reported in the September/October 2013 edition of AZRE, the “Town” of Buckeye is officially now the “City” of Buckeye. In January, the transition was celebrated by more than 200 citizens and city officials as the “CITY” portion of the new City Hall sign was unveiled in downtown Buckeye. The city’s Mayor Jackie Meck thanked the generations of the community, as well as previous town officials whose work would be continued by future city leaders. Meck stated that the city was no longer in the shadows and in fact was working to create shadows of its own.

The P&Z column is compiled by Dave Coble and George Cannataro with Coe & Van Loo Consultants, cvlci.com

Planning and Zoning

Planning & Zoning: November 2013

City of Scottsdale
The Arizona Department of Transportation (ADOT) has proposed the widening of the Loop 101 Freeway from the Loop 202 to Shea Boulevard in Scottsdale. ADOT has hosted public meetings inviting interested parties to learn the details of this project. Construction for the freeway widening is expected to begin in late summer of 2014. Additional information is available by contacting Felicia Beltran with ADOT at fbeltran@adot.gov.

City of Surprise
In November, Surprise residents will be asked to approve a new general plan that, if the plan succeeds with the vote, will give the city a comprehensive guide for future residential and business development, transportation needs and parks & recreational improvements. The City’s General Plan 2035 is the result of extensive public outreach and puts a greater emphasis on sustainable living that would include public transportation and public street links throughout the city, along with bicycle and pedestrian paths with connections between neighborhoods. A City Council appointed citizens committee began a redo of the proposed plan in May 2012 with public meetings, surveys and field visits to local gathering spots to seek resident input. The new general plan also advocates creating a master plan to encourage the development of public art and cultural events, facilities and districts within the city and emphasizes the need for sustainable development. For more information on the contents of the plan, visit surpriseaz.gov/generalplan.

City of Goodyear
The City of Goodyear has been working on its general plan update. Drafts of portions of the plan were sent out to a citizen committee and to other interested parties for review earlier this year. Additional chapters of the plan have been posted on goodyearconnects.com for review by the general public. In addition, various public meetings have been scheduled throughout the year. The complete draft is to be presented to the city’s Planning and Zoning Commission and the City Council for discussion at a joint work session in October. The public is also invited to send comments on the plan. To contribute comments or obtain additional information, contact Katie Wilken at katie.wilken@goodyearaz.gov, or at (623) 932-3005.

Pinal County
In an effort to attract businesses, new development and jobs to Pinal County, the Development Services Department is proposing ways for easing the development review process. To accomplish this goal, the county has initiated a program to reduce the time it takes for permit approvals. This program includes changes in the concept review process and the addition of a Pre-Application Meeting, which will allow staff to review the essence of a development proposal before the formal application. The county claims these changes will save the applicant time and costs. In addition to these changes, the county also proposes changes to the rezoning and to the PAD process that will reduce the time needed for that process from the existing 15 weeks to a proposed 11 to 13 weeks. Processing changes include the dividing of PAD/rezone applications into required documents and background documents. The required documents would be specifically listed with approvals based solely on the information required on the list. Background documents would be intended as informational only and would not be a part of approvals. These changes are intended to shorten review times. A board of supervisors meeting has been scheduled to review and approve these changes. For additional information, contact the Pinal County Department of Planning and Development at (520) 866-6442.

City of Flagstaff
In July, the City of Flagstaff City Council agreed, in principal, to give applicants seeking a zoning change the option to submit a so-called “concept-zoning plan” in an effort to expedite rezoning requests and to make it less of a financial burden for the applicant. The city currently requires, as do most cities, a detailed site plan and a number of engineering studies, such as a traffic study, a drainage study and water and sewer studies, before considering a change to an existing zoning district designation. The concept-zoning plan would permit approval of the requested change in zoning without a detailed site plan or the studies. The site plan and the studies would still be required, but only after the request was approved. However, in recent meetings, some commissioners and citizens expressed non-support of this proposed amendment. The opposition to the amendment suggests that it could lead to “speculative” zoning changes, which in turn could lead to higher land costs and, eventually, to higher housing cost.

City of Avondale
Avondale has initiated comprehensive text amendments to its zoning ordinance. Drafted amendments to the existing ordinance include a new suburban residential zoning district; temporary sign amendments; a new historic Avondale infill overlay district; and landscaping requirement changes. These staff-initiated text amendments take place periodically to ensure the city stays progressive and responds to the development community’s needs and industry standards and changes. Scheduled public meetings have been held to give residents, business owners and other interested parties the opportunity to participate and provide feedback on the proposed text amendments. For further information, please contact Jennifer Fostino with the Avondale Planning Division at (623) 333-4022 or jfostino@avondale.org.

The P&Z column is compiled by Dave Coble and George Cannataro with Coe & Van Loo Consultants, cvlci.com

Test

Tiffany & Bosco Adds Zoning and Land Use Group

The law firm of Tiffany & Bosco P.A. announced that zoning attorney William E. Lally, and AICP certified land use planners Kurt A. Jones and Benjamin J. Patton have joined the firm.  Tiffany & Bosco’s Land Use and Zoning practice is dedicated to working closely with builders, developers, brokers, banks and design consultants; focused in the areas of land use, zoning and permitting throughout Maricopa County and the State of Arizona.  They are experienced in all aspects of land use entitlements which includes general and comprehensive plan amendments, rezoning, conditional use permits, site planning, subdivision planning, civil improvement plans, landscaping design, transportation, , drainage, utilities and any municipal, county or state permitting.

Michael E. Tiffany, Managing Partner and Shareholder of Tiffany & Bosco stated, “With the addition of the Zoning Practice to our distinguished core of real estate, banking and commercial legal professionals, the firm is well positioned to serve the growing needs of the real estate clients. The trio brings over 50 years of zoning experience to the firm, and we are most pleased they have decided to join our firm as we grow and expand our real estate services.”

Test

Tiffany & Bosco Adds Zoning and Land Use Group

The law firm of Tiffany & Bosco P.A. announced that zoning attorney William E. Lally, and AICP certified land use planners Kurt A. Jones and Benjamin J. Patton have joined the firm.  Tiffany & Bosco’s Land Use and Zoning practice is dedicated to working closely with builders, developers, brokers, banks and design consultants; focused in the areas of land use, zoning and permitting throughout Maricopa County and the State of Arizona.  They are experienced in all aspects of land use entitlements which includes general and comprehensive plan amendments, rezoning, conditional use permits, site planning, subdivision planning, civil improvement plans, landscaping design, transportation, , drainage, utilities and any municipal, county or state permitting.

Michael E. Tiffany, Managing Partner and Shareholder of Tiffany & Bosco stated, “With the addition of the Zoning Practice to our distinguished core of real estate, banking and commercial legal professionals, the firm is well positioned to serve the growing needs of the real estate clients. The trio brings over 50 years of zoning experience to the firm, and we are most pleased they have decided to join our firm as we grow and expand our real estate services.”