Recode Workshop 4: planned development and public input

Nick Della VolpeOur Town Leaders

Planned development is one of the many issues that deserves additional city council attention. Under Recode Knoxville, it is being reworked from three separate “zoning districts” into a “process,” administered mainly inhouse by the Knoxville-Knox County Planning staff, with less public scrutiny and participation. Conceptually, both approaches might allow for greater flexibility of design. But there are consequences from making the shift, and the details need to be examined.

Disclaimer: This is dry stuff. The unspoken question – who gives a hoot? – is that we all should. Our community will be affected.

Planned development, now and then: The existing code’s planned zoning districts of Planned Residential, Planned Commercial and Shopping Center (See Knoxville Municode, Appendix B, Article IV, section 3) will disappear in the current version of Recode.

Historically, such zoning districts could be requested by government or the owner. Contemplated interaction between property owner and government, as well as notice to the public, which could participate in the dialogue, helped shape the resulting development plan.

Typically, a planned zone would include a use-on-review public hearing with appeal to city council on the recommended plan. The target result is a development plan showing buildings and specific uses selected from a list of uses in the base zone. Hopefully, this would provide a win-win, meeting the developers’ needs and accommodating neighborhood protection.

What’s different? The proposed Recode planned development is a “process,” not a zone. It can be initiated only by the owner or his agents, not the government (see Recode Article 16.7). That eliminates the possibility of the planners and/or governing bodies nudging worthwhile development into a better layout with lesser community impacts. Recode, of course, also speaks of encouraging such flexible development with “compensating amenities and benefits.” It includes the possibility of modification of the district’s dimensional, design and use regulations.

But use of property is now up for grabs – “the process” could allow residentially zoned property to be developed commercially. What if that foreign use is placed next to you?

The new “pre-application meetings” are with the planners only. Until Recode Draft 5 was issued, even the “Optional Concept Plan” was done only with planning staff, without public notice or participation. As a result of public concern, Recode Draft 5+ now gives some form of notice to the public of the Optional Concept Plan, should the developer seek such planning commission guidance. The public is not invited to speak at that meeting, and any commission input on the concept plan is non-binding.

Thus, the first real engagement of the public would have to await planning commission action on a “Preliminary Plan.” At that point, the plan’s contours are virtually baked in. Later review of the “Final Plan” is a perfunctory check that it substantially complies with the Preliminary Plan.

W-h-a-a-a-t? We are deep in the weeds here. Let’s refocus at 15,000 feet.

Recode’s redesign of planned development appears to be twofold: a streamlined process that avoids legal pitfalls.

Streamlining: Only owner action (or desires) starts this new process. Early plan formation meetings are confined to planning staff. Pesky neighborhoods are kept out of the loop.

By contrast, when neighbors are allowed to participate, they tend to raise practical living concerns. That could slow the development pace. But it could bring a better understanding of what might work there because it is desired locally or avoids an unacceptable community impact. Arguably, a better plan can emerge.

Legal concerns: Zoning is a game bounded by rules – some set by the legislature, others by the courts.

Zoning is designed to group similar or compatible uses together to avoid disrupting another’s use and enjoyment of their property. Zoning affects the public interest, and thus, transparency and public participation help sustain a healthy society and protect property rights.

There are hurdles in Tennessee zoning law. For example, the municipality cannot openly negotiate with a zoning applicant to change a permitted use or impose conditions that exclude permitted uses, nor can it cut a deal to obtain public amenities in exchange for a zoning change. That is called “contract zoning” by the courts and is viewed as an abdication of government police power to private entities. See O’Dell v. Bd. Of Commissioners of Johnson City, 910 S.W.2d 436 (TN App.E.S.1995). But the government can unilaterally impose reasonable limitations or conditions on physical activities to protect the public interest (e.g. limit placement of entrance/exit near an intersection, require buffer plantings, limit intrusive lighting, establish setbacks, etc.).

How to avoid the pitfalls? Chattanooga convinced the Tennessee legislature to expressly authorize, by statute, its use of conditional or contract zoning (TCA section 13-7-201b). One wonders, where was Knoxville’s legislative delegation? Can we be added to that existing law?

Planned development seems to be Recode’s way around some of those legal limitations. Staff and developers thus work together at the outset, before formal application, to see what might work on a given tract as a part of developing a concept plan, to be fleshed out and presented later for preliminary plan approval. This makes practical sense, but will it pass muster if challenged?

Conclusion: Early public participation is important if the public interest is to be served. Any version of planned development adopted – whether using planned zones or the proposed planned development process – must recognize the people’s interest in these decisions. Planners may “know best,” but we will all feel better if they are listening to the people they have been hired to serve.

City council must understand the stated and unstated reasons for proposed changes from the current zoning law and their potential consequences.

Knoxville will continue to benefit from open and transparent government, including decisions on zoning. We are choosing our future path.

Nick Della Volpe is a lawyer and former Knoxville City Council member.

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