Planning Commission Joint Work Session with City Council   8/29/2023

Mr. Mayor, is counsel in order?

Mr. Wade will be joining us in a little bit.

Sure.

Yes, that's it.

So don't feel like you've got to wait for me to stop talking to jump in, with the permission of the chair.

On zoning, please.

If you are not, we have set aside additional dates for your use as necessary.

May I interrupt here?

Sure.

That is a listening session.

And as we discussed at a, I believe at a prior meeting, one of the things we're trying to set up is an opportunity for you guys to kind of collect all the public comment, all this feedback, so that you can introduce that into your deliberations, your questions, your concerns as you guys move forward and consider your recommendation that you would make to council.

and we should not be expected to answer questions and go back and forth with the public because there are a couple of things that will drive that in this document.

As we've done on a number of other topics, I anticipate in this meeting, given the anticipated volume of comments and people who will be in attendance, we'll probably go with the two-minute comment period.

Yeah.

Oh, so we've already advertised it that way, so I anticipate correctly.

reading their mail and trying to figure out what's going on.

Any questions up to that point?

Got it.

On the 19th, it was City Council Chambers, the 26th?

26th will be back in Chambers.

Also in Council Chambers?

Correct.

We're still working with council on what those range of topics will be and ultimately how many meetings those will be, but we're anticipating a series of work sessions focused on a range of topics within the zoning ordinance.

Are we anticipating to talk about this at our next regular second Tuesday on September?

So of course then we're anticipating that following the recommendations of the Planning Commission, following City Council's additional work sessions on specific topics within the zoning ordinance, that we will then make adjustments to the draft document and prepare a document to present to Council for them to then consider for advertisement and a City Council public hearing.

That'll be one of the tasks.

City Attorney's Office, our outside legal counsel and staff will look at everything that's proposed and make determinations based on what we're seeing as to whether it requires a re-advertisement or a new public hearing.

Mr. Freeze about that, but that's an important topic because you can't advertise a horse and adopt a camel, to use a sort of analogy, and so that's probably worth a brief discussion, and we'll make arrangements to do that in closed meeting and in a way that won't disturb your receipt of comments on the evening of the 14th.

That would be a very late night.

Thank you.

That's scheduled to go live in November, and then we'll need to update it based on the zoning ordinance, any changes reflected in the zoning ordinance.

Where is the cutoff?

And in the adoption process, we would basically identify those and allow them to continue forward under the existing zoning ordinance.

And those would be ones that have had like a first round of comments back from the city, or we could choose?

Because it's more fair because clearly each of those psych plans represents an investment by that applicant in a set of designs and plans that are based on the existing zoning ordinance, and to change course would be unfair.

That's great, David.

So do you anticipate that being a blanket amnesty for everything past a certain point?

Well, likely that will be how it actually presents, but we've been advised that we need to list each of those site plans.

I guess the question is, is there, I mean, that seems to open the opportunities, like picking and choosing which site plans.

I don't know that that's the direction I would recommend going in.

My only other concern is that we might get like a flood of applications right now to kind of get under the wire.

Even if you might feel like the new zoning might be beneficial to you, it gives you choice and options, right?

Some of this part of the tsunami is going to, once they see a new ordinance land, may drop back and say, yeah, never mind.

you know just recently I think we went through and changed the name of a state agency that had actually changed like a decade ago but hadn't been reflected in the zoning ordinance so it's a whole range of corrections or minor changes that we'd like to do on an annual basis and come forward and literally as that would be presented you guys can go through that list and as I said I've done this before and you might say we're ready to vote on these as a package deal except for item number five which we want to kick out for more in-depth discussion

Is this something you want to codify or add some language?

Yeah.

And just or announcing maybe at the beginning of every meeting we have that this is a living document that we'll be checking on it.

But the things that we learn right up front need to be sort of played with.

Yep.

I think that's a great idea.

Are we taking?

But I do believe that you would be insulated from any issue of a taking simply because this is part of a general rezoning.

the saving concept here?

I won't say that someone might not talk about a taking or threaten a taking, but I don't believe that those cases would lie because of the general rezoning the council's undertaking here.

And so each January, a person who chooses to do this activity has to be evaluated each year.

And if so, can that be conditioned upon them being properly licensed and registered and continuing to maintain that proper licensure and registration?

I believe the answer to that question is no, but let me, I would like the opportunity to do a little research and I'll provide a memorandum to Council and the Commission on that.

It would depend on what we end up doing eventually.

We ought to be able to structure a deal that allows this thing to be grandfathered to some degree.

But only if they're licensed and registered and paying their taxes and all the rest.

But I think we're at a point where we know this is, I don't want to say there are intractable issues, but there are things moving in four different directions on how to regulate this, and maybe Mr. Preece's suggestion that the trend is, well, let's extract that for now and come back to it as a separate, more, you know, sort of thoughtful.

So there is no issue if it is outside of a general rezoning, which it would be at that point.

latitude is fairly broad, but I do want to do a little research and provide you an answer, and we'll discuss this at the closed meeting that we have, I believe, coming up on the 12th.

So I think the question is, if we were not to do it as part of this zoning rewrite process and do it as a separate process next year, does that make us lose that protection, or does a general rezoning just mean anything that applies citywide?

I don't believe that that's going to hamper, but again, I think that's part of the question that we'd like to brief you on on the 12th.

Is that still, are we still playing, are we still dealing with the, if we reference that in the actual ordinance that these three matters will have to be dealt with by a certain date or something?

I think I understand the question and we'll be prepared to address those when we have your meet with y'all on the 12th.

But I think I did my I was getting based on nods a general consensus that this is an item we'd prefer to take out of the overall zoning rewrite and address separately independently post adoption of the new zone post adoption of the new zoning ordinance We all want to change something in it but we're not And I appreciate that because broadly this section of the ordinance does need some changes to it just for to ease our enforcement yeah

Is there a possibility of having some sort of, I guess it wouldn't be part of the ordinance, but not allowing any new licenses while we're considering it?

potentially taking value away, potential value away from those neighborhoods, particularly with the concern being if the displacement is a result of rising taxes, there are other ways of addressing that issue as well.

Actually, you're meeting with the HACC next week on that.

I am.

Second floor of the, I believe we're on the second floor of the new NDS headquarters.

It's not our office, it's OCS, but we can provide that information.

I know it was pretty integral into the original plan and strategy and the connection to the affordable housing strategy, and I know just in the past week or two this has been a particular interest to the Tenth and Page Neighborhood Association as well as the Fytheville Neighborhood Association, so I think this requires a lot more deliberation among Council.

And I look forward to that, absolutely, yeah.

So there may be some circle back that is needed.

That's going to be an option in the zoning ordinance.

What about the, so there's an issue of what happens in those neighborhoods and then there's the issue of what happens around those neighborhoods.

I believe is an absolutely integral part of that conversation.

Right.

Which is, again, why there's value, absolutely, without question, value in that conversation.

And I'll just note, at least one of the neighborhoods, 10th and Page Neighborhood Association, has a high degree of concern about this change.

Great.

I have been talked to by a number of people recently who have suggested that Tenth and Page be declared a historic preservation district of some sort, which may end up creating a bunch of other protections that maybe we don't entirely have figured out right now, but is that something that's moving forward?

I understand how that tool can be used towards the purpose, but I still recognize that that would need to be tailored.

I would add that a lot of the emails I've been getting in the past week complaining that the sensitive areas, sensitive communities discussion has been taken out have been coming from people who are not in Tenth and Page, not in a sensitive community, but are simply opposed to the plan.

And I also will continue to note that I think those types of tools and others, particularly those that get right at issues of land ownership, are important if not more important than zoning in terms of addressing the issue of displacement.

Or if the Planning Commission has thoughts, do we send them like a citizen would to the rest of council, or how does that?

I don't know that there's been any other decisions about the structure of those work sessions as we go forward as of yet, but certainly in your role as citizens and planning commissioners, you can continue to make recommendations.

So I can see deliberations going on and on and on about every line item, unless you guys structure that before we have had the meeting.

We have our structure that we need to put in place for the Planning Commission's deliberations, absolutely.

So you do have it or you will?

We will need to have it.

So is that structure not what we're here to talk about tonight to kind of lay out a general agenda for I guess the post public hearing work sessions?

Do you know where I'm going?

No.

That's all right.

can wait until after we begin our deliberations so I can bring them up now.

I mean, I guess what I'm encouraging is that the Planning Commission conduct its public hearing, get feedback, and then engage in deliberations.

That's fair.

Mr. Chair, it appears that there may not be any further questions.

Because they're not really part of the site plan process.

Which is also where we check height today.

Sad to have the final one.

Anything else on zoning while we're here?

I didn't see any clarification on that topic.

Sure.

So the more heads up probably the better.

because the height allowance is there to accommodate additional units in the building?

Which is, I just think that's.

Yeah, we can get clarity on that point.

What has substantively changed?

The critical slopes are defined the same way, and the standards of review are the same.

The thing I couldn't figure out, and it sounds like maybe there's not, but has there been any substantive change in terms of the zoning administrator's role in approval or evaluating critical slope waivers from our existing ordinance?

No.

Okay.

Can you speak to that change?

I'm not remembering that specific detail.

I believe in the current ordinance, you're allowed to do it in November and December, like that.

Is that the change?

It is a little bit odd, though, in the new wording where it, I think the intent is that it's, you know, for the parcel you own on the future land use map, but it just says comprehensive plan amendment, which could mean changing anything in the conference plan, arguably.

Okay.

So is that the way that somebody would try and get additional height if they wanted it?

I mean, it's the same process as we have today for rezoning, because that's pretty much defined at the state level, what a rezoning process looks like.

I guess I don't know what happens all behind the scenes, if it's more strenuous than going through an SUP, or if it's...

I would argue that the standard for review is more difficult, but I think it is more difficult today as well.

More difficult to do what?

But that's more my kind of philosophical feeling about it, that I feel like a rezoning ought to be more difficult than an SUP.

I don't, and maybe I missed it, but I don't see anything in the current version, the second draft here, that mentions the process or the standards for SUPs.

There is a process spelled out for SUPs.

I will admit that out of 400 pages I can't say that I've mastered them all.

Which is perfectly fair.

Right.

Yep.

I do see a reference to it, yeah.

You got to it before I did.

Okay.

buy-right allowances, just an SUP to maybe go above it in a special case.

It would have to be something that would be available to all property owners.

I don't want that to be the goal, but I still see there being some value to it.

Yeah, I mean, it could be just downzoning those corridors and having an SUP process, and that's our sensitive area portion of the zoning code.

You could say projects on these corridors at greater than five stories require a special exception.

So why is that better than just downzoning them to dash five and then saying you need a rezoning if you want something else?

And there's a process and there's a set of conditions that we're looking for.

I'm not thinking of a down zoning really from the existing zoning, but certainly a down zoning from the proposed draft in terms of the buy rate allowance.

I don't know what the X is, but there's an X there somewhere.

Or I guess what are you thinking would need that special exception versus a rezoning?

Let's say there's a non-profit, they need to have a lot of flexibility in terms of how they design, finance a project, but they might run into a situation where they need some flexibility in terms of density, height, and also physical design of some elements of the building, and I just want us to have flexibility for that potential.

I don't know if that... Yeah, so like Friendship Port needing the change to CX instead of NX so they wouldn't have to do the floor height thing, that sort of thing?

Things akin to that, and I just feel like a special exception process would have more flexibility for accommodating those concerns than rezoning.

We don't know what we don't know.

And I think building in an exception process to have that flexibility, just to have a relief valve to know how it works until it's tried and practiced for a while and we know where its limitations are, I think makes sense.

I want to be clear that's not kind of where I'm coming from.

And is that covering kind of, I think it's covering specific topics, but there is some wiggle room built in to approve stuff.

Yep.

I mean I don't know if it makes sense to change how that wiggle room is defined based on the standard.

But also those things where it's eight feet or five feet or whatever it is tend to be things that where seemingly small changes are a big deal where it's you know a hundred it's a different story.

Fair.

A lot of those small things that are de minimis

It's to present a pathway to simple solutions.

We'll have to take a look at that.

But as part of that broader range of environmental regulations, flood plains, our stream buffer program, critical slopes, storm water, we want to look at those collectively with the benefit of some environmental technical assistance.

And I understand, you know, doing that full deep dive is not practical, but I wonder if there's even a small change in terms of giving council a discretionary role in approving it that could kind of address some of that.

Yeah.

It looks like we're checking out the need for the developer to meet with the neighborhood.

And anything beyond what's in this, anything that's beyond the state code, we should establish this process.

That need does not go away, because I can see dairy market happening again and again.

All I can say is just review what we put into the manual, and if you feel it meets what you're looking for, then we've achieved it.

Does the need go away or is the need still there that they have to meet with the neighborhoods?

Yeah, so Dairy Market was a discretionary permit.

For example, they wouldn't have to meet with the neighborhood.

I'm sorry?

They had a huge job.

Yeah, that was.

They had a critical slope waiver.

Yeah, it had a critical slope waiver, so that would have triggered, yes, it would have.

Or are you talking about this?

Yeah, yeah, where the... Yeah, so I guess the waiver was the discretionary review, otherwise they wouldn't have had to have a meeting.

So we're requiring that conversation for any project that triggers the transportation demand management and then any project that triggers a discretionary review.

So that's more or less 50-ish units?

Probably a little less than that.

50,000 square feet total?

Yeah.

All right, I would recommend that we brace ourselves and these projects present themselves and they're by right and the developer hasn't had to meet with the neighborhood.

Did you guys take a look at that or I can re-up the email Does that sound familiar to you, Missy?

But I can't think of how to transpose that.

Yeah.

It is, but there's an exception for that sort of thing.

Okay.

I'll send it back to you guys.

And the other.

But anything between 0.1 and 0.5, they make a payment into the CAF fund proportional.

I know this isn't zoning, but Council, I think, needs to make an amendment to the Affordable Housing Plan to clarify that payments from inclusionary zoning are above and beyond our $10 million commitment and don't count towards that.

It's a policy question.

I just think that's an important thing we need to do in connection with this zoning.

Got it.

Oops.

I guess buy them a space in the garage or discount their rent for a space in the garage.

I mean I don't believe that's what we can clarify but I don't believe that's what that language is saying what that language is saying is that that any costs associated with the unit including a cost of parking has to be factored into determining what's 30% of household income.

Yeah so I guess if we could come up with some new language that says like if provided or something along those lines.

I wonder if those omissions were intentional and if they reflect some broader policy that we ought to be at least publicly acknowledging.

We certainly can look at that.

Those can be read and were used as dog whistles.

Yeah.

that it's a whistle either way.

I guess as a question, does it have any substantive?

I hope that the answer is no, we don't intend to say that.

Was that purpose statement in the overall of the entire zoning ordinance or tied to a specific section?

Page 1-2 in the new book, it was section 1.1.3.

Right.

But we can, I can take that back as a comment.

After all, I have a reputation to maintain.

Broadly, my sense on that is that the comprehensive plan is the introductory statement.

There's already 443 pages there.

See, how many times are we going to read War and Peace?

Is that true or false?

So we're not going to be doing like iterative changes to this draft.

Two of those were the math.

We could do some cutting.

It's about how long they are.

400 pages.

Four, so it could be.

There's a lot of pictures, at least, in this one.

Because by the time you finish reading the section, your brain is intentionally blank.

Should have used that when I was writing my essays in college.

My mind is intentionally blank.

So yeah, the intentionally blank and all of the pictures take up pages.

No, sorry, no public hearing.

We'll wait.

that we adjourn on that note.

Do you feel like you've gotten a sense from council topics for work sessions at this point?

I understand that that's a work in progress.

Do you feel like we've given enough direction or clarity tonight or is there something more you're looking at?

Yeah.

Okay.

All in favor, please say aye.