In 2007 responding to resident concerns about the building of oversized houses, "McMansions;" which were seen to detract from the character of established neighborhoods, City Council began to look at tightening zoning regulations to deal with this issue. Almost four years later Council, at its last meeting, voted, without comment, on first read to make those changes. What has occurred, or not occurred, in getting to this point is of interest on a number of levels. Beyond the obvious (property rights) other aspects to consider are the interaction between City Council and the public, the continuity of the process, the use of consultants, and making other changes not related to the original intent of the effort. We will touch on these points as we follow the process from the beginning.
The issue of out-of-scale housing came out of the City's Comprehensive Plan review process. The plan, which was approved in late 2007, was the culmination of an effort by the city to actively engage the public in the review process -- a novel approach in comparison with prior reviews which had only involved city staff. Public input brought the issue of oversized housing to the fore. In response City Council asked the Planning Commission, without specific recommendations, to come up with zoning changes to deal with it.
Working with staff the Planning Commission submitted a proposal to City Council in February 2008. The highlights were outlined in a February 23, 2008 story in the Free-Lance Star (FLS):
In residential districts, the maximum allowed height of a house would go from 35 feet (or 40 in the R-8 district) to 27 feet. In commercial-transitional districts, the height limit would be set at 27 feet for single-family homes, and 40 feet for all other structures.
A building footprint would not be allowed to cover more than 30 percent of its lot. Front porches and uncovered decks don't count as part of that footprint. For lots less than 40 feet wide, the maximum lot coverage would be 40 percent.
The FLS story covered the issues which lead up to the effort to deal with oversized homes and included comments from both sides of the issue. The story also came out well in advance of the Public Hearing before City Council giving the public an opportunity to weigh in on the proposed changes and to be prepared for the upcoming hearing.
This is how the local government process should work. The city actively engaging the public to define an issue -- information presented to the public to both familiarize them with both the details and differing views on the issue well in advance of any action being taken. Unfortunately, this was the last time the public was going to be engaged in this process.
What was lacking at this point was any clear policy direction from City Council. While some members of Council, myself included, felt the recommended changes were a good balance between property rights and dealing with oversized homes, a minority of members expressed reservations that the recommendations didn't go far enough.
As pointed out in an FLS story some members of Council felt, " the proposed height limit would still allow new homes or additions in some neighborhoods to be significantly taller than their neighbors," and why couldn't we, "craft an ordinance that put new construction in perspective with what's around it, instead of setting one rule for every neighborhood in a particular zoning category." But no specifics were provided. And no specific direction was given to the Planning Commission by the Council.
When the Council has policy differences on an issue that directly affects a large segment of the public there should be a discussion before the public to both inform, solicit feedback, and make a case for a particular policy. This did not happen in the case of the Planning Commissions' 2008 recommendations and, as we shall see, it has not happened in regard to the latest changes being considered by Council.
Those who spoke at the public hearing either took the position that the proposed changes were an infringement on the rights of property owners to develop their property or supported the ordinance changes. No significant changes or alternate proposals were proposed by the public or City Council. Council took no action sending the proposed changes back to the Planning Commission without any instructions to either modify or change what they had proposed.
The issue would not come up again until August when a joint meeting between the Council and Planning Commission took place to discuss the next step. Again general reservations were expressed by some Council members that the proposed changes didn't go far enough but, " council members seemed OK with bringing the Planning Commission's original proposal back up for a vote." The proposed changes were to be brought back up the following month. They did not come back to Council until February 2010 and that was only due to an e-mail inquiry received from the press.
On February 2, 2010 I received the following e-mail from Emily Battle of the Free Lance Star:
"The last time I see this ordinance on the public schedule is August 2008, when the council had a work session with the planning commission about it. It was said at that point that it would come up on the agenda the next month, but from what I can tell it just dropped off the face of the earth after that. If you can think of a more recent time it came up, let me know, I've been looking through the agendas."
I didn't have an explanation as to why the proposed changes to deal with oversized housing, "just dropped off the face of the earth;" but I did have staff added it to the agenda for a public hearing in February. While most of the public comment was supportive of the changes on this ocassion, some Council members still wanted, " to explore different kinds of zoning tools that could take existing home sizes into consideration in specific areas of town."
At this point It should be pointed out that the concern expressed regarding, "taking existing home size into consideration," was addressed in the Planning Commission recommendations. Below is the wording taken from the proposed ordinance:
"A Special Use Permit may be approved by City Council, in accordance with Division 31, that permits the principle structure to exceed the 27 foot height limit and/or the maximum allowed lot coverage, so long as the City Council determines that the proposed structure will be compatible to the existing structures located in the established block in which it is to be located, in terms of mass, scale and height, and will not have an adverse effect on the neighborhood in which it is to be located."
This change would allow houses to be built, irrespective of zoning regulations, if the home conformed to the houses in the existing neighborhood. This change acknowledged the differences between city neighborhoods.
A motion was made to pass the ordinances as drafted but failed for a lack of a second. Instead, per the Council Minutes, " Councilor Solley made a motion to revisit the setbacks by themselves at the March 9 meeting and a review of the overall ordinance by a committee to include Planning department, Planning Commission, City Attorney and a council member; motion was seconded by Vice-Mayor Devine." A request to at least put a time line for the committee to report back to Council was ignored.
This vote marked the end of the Planning Commissions' 2008 recommended changes. What comes next is the hiring of a consulting firm, a different approach to the oversized housing issue and the inclusion of commercial development in neighborhoods. It also marks the end of any public involvement or information on the process beyond the required public hearing notices.
Emily Battle's blog post of February 23, 2010 would be the last story on this issue until the FLS story on July 18, 2011 announcing the first read on the new zoning changes. Even a review of both City Council and Planning Commission minutes provide little insight into the process Council followed or the basis for the current ordinance changes. For those who don't visit the City website on a regular basis here are the latest recommended changes:
For properties that are located within the 100-year regulatory floodplain, structure height shall be measured from existing grade.
Maximum building height for single-family residential is 35ft.
No off-street parking is required for residential infill lots.
For sites of record on or before April 25, 1984, or sites in developed areas where a pattern of building height has already been established by existing residential dwellings, the maximum building height of 35 feet for single family dwellings shall be reduced by a percentage that corresponds to the ratio of the actual lot area to the minimum lot area for the district. The formula for calculating the maximum building heights for structures on such lots shall be as follows: Size of lot (in square feet) divided by standard minimum lot size (8,400 square feet) multiplied by the standard height of 35 feet equals the new maximum height. In no case shall the new maximum height be set lower than 25 feet.
Whenever the residential building on a lot equal to or larger than the minimum lot size covers more than 20% of the total lot area, the side setbacks shall be no less than 10 feet.
Specific commercial uses to be allowed in neighborhoods by Special Use Permit that meet specific guidelines.
These latest changes were drafted by Clarion Associates of Colorado, LLC. This firm has provided consulting services on planning issues in the past. The contract, signed on July 20, 2010, at a cost of $18,000.00, was to provide the following services:
This scope of services proposes a review of all residential zoning district regulations in the Zoning Ordinance, followed by recommended revisions to address the permitted mix of limited non-residential uses in single family residential districts; the allowed height and scale of houses; setback requirements; limitations on heights located within the 100 year floodplain; and off-street parking requirements for infill parcels particularly where established neighborhoods do not have or have very little existing off-street parking.
The contract provides for a presentation to Council during a work session but no public presentations.
It has been confirmed with City Planning staff that the request for outside services was not the result of Council action. In reviewing the Planning Commission minutes from March through July of 2010 there is no mention of hiring outside services, nor for that matter, any discussion at all on the oversized housing issue. As to who made the decision to hire Clarion, why was it necessary to do so, and why was commercial development in neighborhoods added, these are questions that will have to be answered by others. In any event, this step effectively by-passed the Planning Commission.
Based on a review of the Planning Commission Minutes from April 2010 through April, 2011 their involvement in these changes was rather limited. Their first discussion was held on March 30, 2011 as a work session on the revisions drafted by Clarion. These changes do not show up again on the Planning Commission agenda until the public hearings held on May 11th and on June 8th. The Planning Commission seems to have gone from active participants to passive observers.
Based on a review of the minutes of the Planning Commission, the City's planning staff's involvement in drafting the latest ordinance changes was also diminished. While one may have issue with the changes recommended by the staff and Planning Commission back in 2008, a review of the supporting documentation that accompanied those recommendations showed a good grasp of the issue and provided a thorough explanation of the basis for the changes. From what can be found in the public domain the same cannot be said of the Clarion changes.
Trying to determine why commercial development in neighborhoods became interjected into the oversized housing issues is also hard to determine. Planning staff and a member of the Planning Commission I talked with both said that mixed-use development, to include neighborhoods, is part of the Comprehensive Plan. But at the March 30th Planning Commission work session staff, "stressed that this amendment was something new, a plan to promote walk ability and sustainability. For the first time the city was opening up neighborhoods for some commercial uses."
There are no specific recommendations in the Comprehensive Plan regarding commercial development in neighborhoods. One reference under Corridor Issues which calls for," Achieve mixed-use development patterns as redevelopment occurs within Fredericksburg’s designated corridors, blending retail, office, and residential uses." Under Neighborhood Issues the plan calls for preserving the character of existing neighborhoods. Both the Planning Commission and City Council expressed concerns about this change in their respective work sessions but neither body pushed the issue or express their concerns outside the confines of the meetings..
There are pros and cons on allowing the possibility of limited commercial development in neighborhoods. However, the City's past experiences with this issue has not gone smoothly As a Council member I dealt on a number of occasions with neighborhood concerns about commercial encroachment. This issue has been the basis for litigation.
In 2007-08 there was public input to deal with oversized houses. Now an issue, commercial development in neighborhoods, is being considered without a public input. It is also unfortunate that the City was not more forthcoming in the Public Hearing notices which only mentioned, "expanding uses permitted by Special Use Permit." There is no mention of commercial development. This change has nothing to do with the issue of oversized houses and there is no deadline looming that requires immediate action. The issue of commercial development in neighborhoods should be pulled and dealt with as a separate issue.
As for changes related to oversized housing a Council member that was not involved in this issue in 2008 stated that at the one work session held on this issue on January 25th that they were not made aware of the original Planning Commission proposals. One would expect that Council members would have at least compared the two proposals, and why one addressed the issue better than the other. When a decision is being made like this that affects residents' property rights one would expect a similar presentation to the public. But this has not been the case. Even when Council voted to approve the latest changes they did so without comment. An additional and troubling question is raised: where has the public been?
Some would say that because no one has spoken at the scheduled public hearings that there is obvious support for these changes and no explanation is necessary. I would again point out that since February 2008 there have been no stories, OpEds, or interviews on this topic. No effort has been made to educate the public on the latest changes beyond posting changes on the city website and the obligatory public hearing notices which are not always easy to understand or read in small print:
Ordinance 11-__, First Read, Addressing the Issue of Out-Of-Scale Houses in the R-4 and R-8 Zoning Districts; Removing the Requirement for Off-Street Parking for New Residences on Infill Lots; Expanding the Uses Permitted by Special Use Permit in the R-4 and R-8 Zoning Districts; and Amending the Definition of Building Height for Buildings in the 100-Year Floodplain; by Amending City Code Chapter 78, “Zoning, Planning and Development,” Article III, “Zoning,” Sections 78-1, 78-112, 78-242, 78-245, 78-273 and 78-276
Even if you go to the city website, check City Council and Planning Commission agendas and minutes you will find very little information, or explanation, of the ordinance changes passed by Council.
I asked some of the people who spoke on the 2008 Planning Commission proposals why they did not attend the Public Hearings on the latest zoning changes. Most said that they were unaware of the hearings. One person said that while he also missed the notices he stated, "why bother?"
Not all expenditures, or decisions to hire outside consultants, require Council approval. The city has met all legal requirements regarding advertising and holding public hearings. The process followed by the city in dealing with oversized houses, for the most part is probably typical of how such issues are dealt with by local governments. The question is whether, only doing what is required is enough?
Because an issue such as ordinance changes to deal with oversized housing impacts most every property owner in the city, should we expect more from City Council than only doing what is required? Or should they be doing what is necessary to inform the public solicit their input, answer their questions and address their concerns? In regard to the latest ordinance changes Council decided to only do what was required . Council needs to explain the process they followed, why hiring a consultant was necessary, and the rationale for choosing one set of changes over the other before they take the final vote.
How far should local government go to infom the public?