REZONING AND RELATED APPLICATION PROCESSES
by Bill Bardenwerper
NEIGHBORHOOD MEETINGS AND PLANNING
Meeting with Neighbors and Early Planning
Sophisticated zoning applicants (principally developers, homebuilders and commercial real estate interests experienced in planning, zoning and development) often spend as much or more time in the preapplication planning process as they do in the official rezoning process. The official rezoning process generally lasts between six and nine months, sometimes longer. But there have been cases where we have spent periods of one, even two full years in the preapplication process of initial land planning, plan revisions, and neighborhood meetings.
Historically, except in rare circumstances, sophisticated applicants would meet with adjoining property owners and neighborhood interests before any official filing of a rezoning application, and often times even before the unofficial process of preapplication review. Now at least one neighbor meeting prior to official filing of a rezoning, subdivision or conditional use permit application, is regulatorily required. There always have been plenty of good reasons for those meetings, not the least of which is to demonstrate an interest in neighbor concerns, but equally as well also to better understand the kinds of technical concerns (like drainage, flooding, lot line disputes, etc.) that may exist which the applicant and his professional representatives might not be able to determine on their own. Normally we set up a meeting at a convenient time and place, like a church or community building, and invite a minimum of two tiers of adjoining property owners. Usually we go well beyond the two tiers of adjoining property owners to avoid complaints from people not being invited, and we always invite neighborhood interest groups as well. Sometimes we walk the site as well with these adjoining neighbors and/or interest groups. Not infrequently we meet more than once before a filing and maybe several times overall. Every case is different, but the goal in each is the same: to reach accommodation, if at all possible, on as many, if not all, issues that will come before the Planning Commission and applicable local legislative body.
I have often said that my time in a rezoning case is divided approximately 40% working on planning-related issues, 40% working out issues and concerns with adjoining property owners and neighborhood interest groups and 20% actually presenting a case to the Planning Commission and applicable local legislative body. Obviously, those percentages change depending upon the controversy of a given case. But given that most cases are controversial, at least at some level, those percentages are not uncommon.
Different Planning Approaches
Different applicants try different approaches. Some, it is said, like to start with a plan showing as much development as they can possibly cram onto a site. I recommend to my clients that their first plan always be a good plan, if not the best plan possible. That is not always the selected approach because some neighborhood interest groups and some decision-makers assume that a developer always starts with more than he expects to get. But that isn’t always the case, and it certainly isn’t the case with sophisticated professional representatives and their more sophisticated clients. We try to get things right from the get-go, with the objective being one of not starting on the defensive. The point is, if you start with a good plan from the start, you may end up with little or no controversy once everyone understands what it is that you are proposing how you arrived at that plan and see that you are developing a site correctly.
Plan Revisions and Binding Elements
Whatever the approach, invariably there are lots of plan revisions along the way, along with lots of conditions of approval (generally called “binding elements”) drafted and redrafted and sometimes even side agreements (of no particular interest to the Planning Commission) with different adjoining property owners or neighborhood interest groups.
Costs of Plans and Studies
Nowadays it is not at all uncommon for a developer to prepare (in addition to the required development plan) traffic and air quality analyses, geo-technical analyses, detailed landscaping plans, drainage and wetlands mitigation plans, detailed building elevations, even specific floor plans– all in advance of even a preliminary approval. As a consequence of this, it is also not uncommon for an applicant to spend significant sums of money with land planners, architects and various types of transportation, geotechnical, environmental and civil engineers in preliminary planning. While applicants often complain about this, much of this is ultimately unavoidable because the community as well as the Planning Commission and local legislative bodies have come to expect a high level of preliminary planning prior to the grant of any rezoning. The same is true of many conditional use permits and even subdivisions.
Also, because of the high level of preliminary planning and give-and-take involved in many development cases, a high percentage of cases that finally reach the point of an ultimate decision are, in fact, finally approved. But that is, as I often explain, because of the “winnowing process” that goes on. When a case first arrives in my office, for example, that does not mean that it is a case that will ever even reach the point of an official application. Perhaps half the project ideas or sites I review I recommend against further development consideration or that certain significant changes occur. . Sometimes an applicant begins the process but falls out along the way, either because the applicant and his/her professional representatives make a joint judgment that the plan isn’t going anywhere or because staff of the Division of Planning and Development Services (DPDS) may recommend against rezoning.
Occasional Early Meetings with Local Legislators
Sometimes before an official application is filed, people take the opportunity to meet with a local small city may or or a key member or two of the applicable local legislative body or their staffs to advise them generally of what we are proposing to try to determine whether we are generally on track or are simply “beating our heads against the wall.” Although local legislators (the final adjudicators in rezoning cases) can’t prejudge their ultimate decisions in advance of reviewing the evidence, arguably they may still be free at least to give preliminary recommendations as to whether applicants might be wasting their time. These meetings can be helpful and can serve to save an applicant lots of money and neighbors lots of grief.
REZONING VS. DEVELOPMENT PLAN REVIEW
A lot of what is said here also applies to development plan, as opposed to rezoning, cases. Sometimes the zoning already exists but the development plan simply has to be approved by the Planning Commission. Other times proper zoning may exist and a development plan may previously have been approved, but a revised development plan or amended binding elements are in order. In more complicated development plan cases, much of the same process described above may be involved.
As indicated above, prior to filing of the official rezoning application, a preliminary development plan is filed for preapplication review by DPDS staff and by applicable agencies such as the Metro Works Department and MSD. The preapplication conference in a rezoning case is attended by DPDS staff, the applicant and the applicant’s professional representatives. Information is distributed, questions are answered and suggestions are made. This used to bea confidential process and should have remained that way because it is only preliminary and nothing official has yet been filed, or, for that matter, may ever be filed. But recently required to be open to the public, the result is less candor and less willingness on the part of neighbors to show an open mind, because they now assure that preliminary plans are final plans, and they often make their minds up based on a developer’s preliminary ideas instead of more fully thought out and well-engineered much later work. Still, pre-apps are important because they help with the “winnowing” of applications as explained above. That is because, as explained above, sometimes the project dies at that point in time and doesn’t proceed further. Other times the application proceeds, first with changes to the preliminary plan as recommended by DPDS staff or applicable reviewing agencies, and, only after plan changes are made, then with preparation of the official rezoning application, normally by the applicant’s land use attorney.
It is not necessary for a land use attorney to be involved in a rezoning application, but land use and development cases have grown so complicated in recent years that attorneys, as well as a host of other professional representatives, are now frequently involved. Usually a good land use attorney is the development team’s quarterback, as he sees and understands the entire field of play, not just one position. Land planners, landscape architects and engineers are technically proficient at certain things, while attorneys are more experienced in the preparation and presentation of evidence, which after all is what forms the basis of a rezoning decision: compliance with the local Comprehensive Plan through evidence presented in the official rezoning and development plan review process.
After the preapplication process and assuming official filing, the official application involves completed application forms, which include information about the size and location of the property, density (in the case of a residential development), use and, of course, the applicable zoning district. Ownership information, including signatures of the property owner (s) must also be included, as well as the filing fee, which now ranges from $500 to several thousand dollars, depending upon zoning category and acreage.
Sometimes an application will also include an application for a conditional use permit, dimensional variances (such as height and set back) and for the subdivision of land. All of those applications also include separate filing fees.
Compliance with Comprehensive Plan
Perhaps most importantly, an application should include a detailed statement of compliance with all applicable guidelines and policies of the local comprehensive plan; in Metro Louisville’s case, of course, the new Cornerstone 2020 Comprehensive Plan. Because the Comprehensive Plan is a lengthy document, so, too, the compliance statement must also be lengthy. Those that I typically write are 5-10 single-spaced pages in length explaining how every applicable guideline and policy has been addressed by the development plan and associated binding elements. That compliance statement and development plan, binding elements and other plan studies and information submitted along the way, serve as the basis for the ultimate zoning decision. That compliance statement also serves as a basis for preparation of the findings of fact proposed by the applicant and ultimately considered by the Planning Commission, which must adopt findings of fact whether making a favorable or unfavorable rezoning recommendation to the applicable local legislative body. Of course, if the application does not comply with the applicable comprehensive plan, then State statute still permits zone changes to occur if there have been major changes of social, economic or physical nature since adoption of the Comprehensive Plan.
Technical Studies in Support of Application
Along the way other materials are often prepared by the applicant, as indicated above, in addition to the official rezoning application. Again, those materials may include studies pertaining to traffic and air quality, geo-technical issues, soils, landscaping, building design and so forth. It has become typical nowadays for an applicant to summarize everything in a bound book of evidence submitted to the Planning Commission before and at the public hearing. The reason for this is because hearings are limited in terms of time, and these evidence books have proven to be the most effective way to present a case given the time limits involved. These evidence books are also then officially forwarded by the Planning Commission to the applicable local legislative body so that every member of the local legislative body has a set of minutes and at least the principal evidence presented by the applicant. This is true, of course, of any opposition evidence presented as well.
CASE MANAGEMENT SYSTEM AFTER OFFICIAL FILING
After the initially neighborhood meetings, the regulatorily required neighborhood meeting and official filing of a rezoning application (and also after filing of a conditional use permit application), the official application enters what is now known as the “Case Management System”. Sometimes known to practitioners as the “black hole”, because applications seem to get lost and meander for long periods of time without official docketing before a review committee, applications are assigned to a DPDS Case Manager so that agency comments and the initial and revised plans and studies from the applicant all get funneled through a central person. Agency staff meets on the initial plans and studies, as well as revised ones and notify applicants via email of changes that need to be made. There is a specific schedule that is prepared each year showing all the dates by which plans and resubmittals of plans are due, as well as comments from agencies. While it is theoretically possible for all of these dates to be met, they seldom are. But the Case Management System schedule is a good place to start for determining how long it will take for plans to be processed to the time of docketing for official public review.
Because of the current local Land Development Code divides cases into Category 1, Category 2, Category 3 and “Plan Certain” types of review, the levels of review (and ultimately the official review bodies) vary for each type of case. Obviously, the more complicated cases take more time and are sent through more rigorous levels of review.
The Case Management System review period should take about two months for some form of official public review of a given case. That time period can take longer, sometimes several weeks or months longer. Normally, one can expect that, from the date of official filing until a DRC or LD&T review, a minimum of two and more likely three months will pass. If a case moves to public hearing following a Committee Review, that usually occurs 6-10 weeks following that committee review.
LAND DEVELOPMENT AND TRANSPORTATION (LD&T) COMMITTEE and
DEVELOPMENT REVIEW COMMITTEE (DRC)
The LD&T committee has been around for many years. A new committee called DRC now splits the workload with LD&T. Both serve very important functions. LD&T meets on the 2nd and 4th Thursdays of every month, and DRC every Wednesday, both at l: 00 P.M. Presently, meetingsare held in the courtroom of the Old Jail Building at 6th and Liberty Streets. In prior years meetings were held in smaller, less friendly meeting venues. The present meeting venue seems adequate for the purpose of accommodating often times large numbers of people and processing relatively large numbers of cases. Both LD&T and DRC usually hear 5 to 10 cases on their dockets. The complexity of cases and the mood of committee members tend to dictate the length of discussions.
Routine matters such as street name changes, road closings, minor subdivision plats and so forth generally take very little of DRC’s time. Revised development plans sometimes take more of DRC’s time. Rezoning cases and appeals of major subdivisions often times consume more time and attention, and those cases are sent to LD&T.
Both committees tell people present that the meetings are not public hearings. Rather they are opportunities for a technical review and comment by agency people present, such as representatives of DPDS and MSD, the Kentucky Department of Transportation (KDOT), and Metro Works Department, and by the applicant and concerned citizens.
Committee members (five Planning Commission members each) sit on one side of the table, and the applicant and other interested parties stand on the other side of the table. DPDS staff present their Staff Report first, followed by comments from the applicant and his or her professional representatives, followed by comments, if any, from other interested parties, such as nearby property owners and neighborhood interest groups. The Committees can only act unanimously. Therefore, any case that does not receive a unanimous decision is forwarded to the full Planning Commission.
The Committees also set public hearing dates in rezoning cases and occasionally in subdivision and even development plan cases.
The Committees sometimes schedule multiple reviews of a particular matter. Public hearings are not automatic, although all applicants in rezonings are ultimately legally guaranteed a public hearing, even on a bad application.
Sometimes the Committees express their views clearly and candidly. Other times they are less expressive. The more that Committees members say, the better for all involved because, good or bad, in that way people better understand what Planning Commissioners are thinking and expect or may have decided. It is never good for an applicant to walk away from “the table” not knowing for sure what was really said or decided.
Public hearings are normally only scheduled in rezoning and conditional use permit cases. Rezoning cases are sent to the full Planning Commission. Conditional use cases are normally sent to the Board of Zoning Adjustment (BOZA). However, if a conditional use permit is filed with a rezoning case, then the Planning Commission statutorily has jurisdiction over both the rezoning and conditional use permit decisions. (Variances, which have to do with dimensional issues, also are sent to one committee or the other, depending again upon whether the variance is filed alone or whether it is filed in conjunction with a rezoning.)
Public hearings are only finally held after a considerable amount of staff, agency and applicant work. They are usually viewed as the culmination of events or where everything finally comes together and a decision is made. Applicants wait to “get their act together”, so to speak, until right before the public hearing. I prefer to do as much preliminary work as possible, so that the public hearing becomes an “anti-climax”, rather than a climatic event. Sometimes that is difficult to achieve, particularly with highly controversial cases, which are often times scheduled for night hearings, lasting for several hours, located in the neighborhoods close to where a project is located. But for most rezoning and conditional use permit (as well as variance) cases, if the project is prepared properly along the way, the public hearing is an opportunity for a final presentation, the applicant knowing pretty well that it is a matter now of simply picking up his approval. Again, this is in large part because bad cases seem to fall by the wayside and never make it to the final public hearing. It is also often because enormous amounts of work and various levels of compromise occur along the way, so that the final public hearing becomes less than what it might have become had everything been left to occur at this final culminating event.
In addition to the public hearing exhibit books mentioned above, we now present all of our public hearings in PowerPoint form. Normal public hearings are only scheduled for 10 to 15 minutes of time, although Planning Commissioner questions often take considerable additional time to answer. Evening public hearings will often last for hours. Whatever the allocated amount of time, it is extraordinarily important to make certain that every image and every word is concisely and effectively presented. Time is too short and thus too valuable to waste wandering through a presentation. Public hearing presentations that we make are usually mostly presented by the attorney, partly because of the severe time constraints normally placed on presentations, and partly because that is local practice, and those of us with years of experience doing this know who the decision-makers are, what they want to hear and how to say and present evidence in the most effective manner possible.
LOCAL LEGISLATIVE BODY REVIEWS
In rezoning cases, following a decision by the Planning Commission, that decision, which takes a form of a recommendation, is forwarded to the applicable local legislative body. In Metro Louisville, most cases are forwarded to the Louisville Metro Council. But because Metro Louisville is a form of government that also contains nearly 100 local small cities, many of those small cities also contain zoning authority. While nearly all operate under the same Land Development Code, and while all operate under the same Comprehensive Plan, as Metro Louisville, each has different ways of processing the cases that come before them.
At the Louisville Metro Council, which has final decision-making authority in rezoning cases, a first reading of the rezoning ordinance is normally held a week after minutes of the decision are approved by the Planning Commission. Thereafter, the Metro Council Zoning Committee reviews the application in public session. They discuss the case following a brief presentation by DPDS Staff. The applicant and other interested parties are only allowed to speak if asked a question. The new practice is a major departure from the way the old Louisville Board of Alderman handled cases. The Board of Alderman used to allow the applicant to make a summary presentation in its Zoning Committee. The new Metro Council Zoning Committee has been advised by the County Attorney’s Office to be very careful about allowing any additional commentary because new public hearings are never held (even though they legally could be).
Following a recommendation by the Zoning Committee, the rezoning ordinance (for or against) is returned with recommendation to the full Metro Council. Usually a final decision is made a week or so following the meeting of the Zoning Committee. It takes a majority of the full local legislative body (in this case, the Metro Council) to override the recommendation of the Planning Commission. In other words, because of our 26 members of the Metro Council, it takes 14 members to overturn either a favorable or an unfavorable recommendation of the Planning Commission. The Planning Commission’s decision becomes final and effective by operation of law if the local legislative body (in this case the Metro Council) does not act to overturn the recommendation of the Planning Commission within 90 days of the Planning Commission’s vote (not approval of its minutes, but actual vote).
Each of the small cities with zoning authority (i.e., Anchorage, Douglas Hills, Graymoor/Devondale, Hurstbourne, Indian Hills, Jeffersontown, Lyndon, Middletown, Prospect, Shively, St. Matthews, and St. Regis Park has a different way of processing recommendations from the Planning Commission. Virtually none of them ever hold new full-blown public hearings. The City of Jeffersontown, for example, usually holds a new “argument-style” hearing. Most of the rest allow the applicant and interested parties to comment, but the commentary is not taken in the form of new evidence. Everything said at any of these City Council or City Commission meetings must be evidence already in the record. Otherwise, a new public hearing will be required. All of the small cities, like the Metro Council, must have two readings of an ordinance on separate days. Each small city council or small city commission, just like the Metro Council, must follow State statute with respect to obligation of meetings, meeting dockets and so forth. Just as with Metro Council, small cities with the Council-form of government, do not allow the Mayor to vote. In the “Commission” form of Government, a small city mayor has a vote the same as fellow city commissioners. The Mayor also does not have veto authority in any of these cities, including Metro Louisville, when it comes to rezonings. Just as with Metro Council, it takes a majority of the full small city council or commission to override the recommendation of the Planning Commission.
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