(Introductory Note: this article was written in 2002 and
presented to the Mayor of the new consolidated Louisville Metro
Government. Some of the advice was
followed, such as better zoning enforcement, and some predictable results
occurred, such as fewer illegal signs.
Also, “sprawl” finally now seems to be better understood by local
government decision-makers, as growth outside of Metro Louisville in surrounding
counties, not outside of
1. INTRODUCTION
This “White Paper” is written to provide those involved in the local land planning, zoning and development processes with a few thoughts from someone who has spent his entire career working in this subject area, both inside and outside government, on various committees and task forces and on all sides of the debate. Although I currently devote my private practice to the representation of homebuilders, developers, land owners and real estate investors, I know and both fully understand and absolutely respect the positions of “the other side”, to the extent that there are two sides to the land use and development debate. Truth is, there are many viewpoints, and the overarching goal of Cornerstone 2020, which began about a decade ago, was to reach community consensus among these varying viewpoints on the issues of long-term growth and development of this community. Having been involved every step of the way at the highest levels of that project, I know firsthand that everyone’s input was heard many times. Serious research and analysis were done. Discussions and debates involved every walk of life, point of view and area of the community. Detailed discussions and heated debates occurred both at the esoteric and nitty gritty levels.
While no one is probably totally happy with the final work product, that probably reflects more than anything else the fact that the Cornerstone 2020 Comprehensive Plan and Land Development Code are compromise documents. With all of the continuing talk about how to grow our community while protecting it from the adverse effects of growth, the truth of the matter is that, whereas the discussion must continue, all of the hard work is now done. Ten years of tedious communitywide effort has just concluded. It is now time to move forward to implement the new 2020 Plan and Code and to follow its guidance. At the very least, the new Metro Government should give the Plan and Code time to sink in and be tested before launching any new large-scale planning initiatives.
2. IT’S NOW ALL ABOUT QUALITY GROWTH, NOT GROWTH PER SE
Cornerstone 2020 recognizes that for a community not only to survive, but to thrive, it must continue to grow. Like most everything, you either move ahead or fall backward. It is hard for anyone or anything in life to simply balance in between and just maintain the status quo. And with all the complaints from everyone about the status quo, why would we want to maintain it anyway?
If Cornerstone 2020 focuses its attention on one thing more
than anything else, it is quality -- quality growth and development through
better design, through better utilization of our diminishing resource (which is
land), through more attention to, and better use of, in-fill development sites,
through greater respect for the environment, through better planned improvement
and use of our public infrastructure, through greater sensitivity to air
quality by use of such things as reduced commuting distances and a focus on
development in and around activity centers, through a recognition that sending
everything to outlying counties is not the answer to our greater community’s
concerns about growth, through a recognition that our world and lifestyles are
changing (for example more households with higher disposable incomes, more wage
earners, and, unfortunately, many families breaking up), and, perhaps more than
anything else, through a commitment to Greater Louisville’s fundamental role in
this Commonwealth as the economic engine that drives the State. All depends elsewhere in
3. WHAT’S THIS ABOUT SPRAWL?
When the Louisville Area Chamber of Commerce (now Greater Louisville,
In
In terms of the central city itself, only two of those 18 competitor
cities (
In terms of central county, only six of those 18 competitor communities
have a more concentrated population than
In terms of Metropolitan Statistical Area (MSA), perhaps the most meaningful comparison, only two of those 18 MSAs have a greater population concentration (that is, population per square mile) than the Louisville-Jefferson County MSA.
The fact is,
Assuming the truth of these facts and figures (which are not difficult numbers for experts to crunch), then, given the fact that we are also experiencing no significant population growth in this community, why all the new subdivisions and other commercial growth springing up outside the Snyder Freeway? Why not closer in? Everyone asks these questions.
The answer to the first question (that is, if there has been no significant population growth in this community, why the growth in housing and commercial development that accompanies rooftops?) is easy. While we are not experiencing any remarkable population growth in this community, we are experiencing more households. Homes are splitting up. Divorces. Single parents. Later marriages. Rising incomes. Better jobs. All of these things and more contribute to more households. More households, more houses.
The answer to the second question (why not closer in?) is more complicated. Here are three contributing factors. There are others. First, housing and other development in our community are already heavily concentrated, as noted above. There really aren't many in-fill opportunities left. Look around. Just try to purchase a good, even semi-affordable new development or redevelopment site. It’s darn near impossible. Second, in-fill development confronts neighbors who are fed up with congestion and concerned about the density and intensity of already existing development around them. Third, development within built-up areas is extraordinarily difficult because of the resulting active neighborhood opposition to in-fill development in almost all cases and because of the consequent added scrutiny, increased regulation and bureaucratic review that goes with such development. Development, therefore, is much more difficult and expensive in in-lying areas.
One piece of good news is that the ability to afford a home in this
community, still more so than elsewhere nationally (although we are steadily
losing ground), reaches down into lower income levels. More people still are able to realize the
American dream of home ownership here in Greater Louisville than elsewhere in
the country. Nearly three out of four
households in the seven-county area around
The other good news about this is that
New houses in
So where does this leave us with respect to sprawl?
First, sprawl does not exist here in
Second, those concerned about future sprawl should support efforts to
make in-fill development and redevelopment more financially, bureaucratically
and politically less cumbersome and more attractive. Also keep in mind, though, that home buyers
are both fickle and generally conservative.
People won't be forced to live where they don't want to live in homes
they can't afford to pay for. Also
remember that, if every single vacant lot in the current city of
Third, understand this: homebuilders are building homes that people want to live in, in communities where they want to locate. No one puts a gun to anyone's head. The demand is for 1.3 to 1.5 million new homes nationally each year. Most of the demand is for suburban style homes and increasingly for the maintenance free living environment of condominiums.
Fourth, developable land is a shrinking resource. What land is available is generally over-priced. Some is not for sale. It is hard to build moderately or affordably priced housing on over-priced land. It is even harder when the permitted density yield is low and government assessments are high.
Fifth, protection of the environment is extraordinarily important. Environmentally important resources should be
protected. But the preservation of
farmland (which is an entirely different matter) for the sake of farmland
preservation only contributes to sprawl.
It pushes development farther and farther out into surrounding counties
where infrastructure and services are not always available. It erodes our
Sixth, if we wrongly assume that everything is sprawl (which it is not) and that in-fill and downtown development will accommodate all our community’s growth needs, in no time we will lose our ranking as the 16th largest city in the country because opportunities will either bypass Louisville for our competitor cities or, just as bad, will leap-frog into surrounding counties where, as indicated above, infrastructure is not always available, the environment may be more fragile and the commute to work is often much longer. The former (development that bypasses Greater Louisville), of course, will have saved us (although not necessarily other communities) from our fears of sprawl, but at what cost to the future wellbeing of our community and of our state? The latter (leapfrog development into surrounding counties) is what sprawl really is -- not growing our own community by more intensively utilizing the little remaining land that is available, both inside and outside the Snyder Freeway.
Cornerstone
2020 correctly interpreted, will mean that Greater Louisville should emerge in
the year 2020 as an appropriately, fully developed and redeveloped community
bustling with economic activity and high quality development from west end to
east end to south end and into the central city.
4. ZONING
ENFORCEMENT IS THE REAL KEY TO A BETTER COMMUNITY, BUIT IT’S NEVER BEEN THE
PRIORITY THAT WRITING NEW PLANS AND REGULATIONS HAS BEEN
As opposed to stopping growth and development by incorrectly
assuming that development can work, just not in the backyard where it happens
to be planned, Greater Louisville’s best bet to achieve the majority of what
citizens expect of their new metro government in the areas of land planning and
development is if government simply does a better job of enforcing the zoning
laws already on the books.
As to this issue of zoning enforcement, binding element violations are not the major problem. After all, in the quarter century of the "Plan Certain" regulation, which is the basis for development plans and binding elements in this community, there probably have been well over 25,000 binding elements negotiated between the Planning Commission and zoning applicants. Every now and then, we read about one or a few of those many thousands of binding elements being violated, which everyone assumes is the rule, not the exception. The truth of the matter is, however, that binding element violations are the exception, not the rule. The relatively recent "Binding Element Enforcement Act," authorized by the General Assembly and then passed locally, was a very important piece of legislation, supported by developers as well as neighborhood activists, because it gave the Planning Commission the enforcement authority it needed to make certain that, even though binding element violations may be relatively rare, (1) binding elements are taken seriously by all applicants and developers, not just the good ones, because of stiff penalties for violations and (2) the Planning Commission can finally hold people's feet to the fire.
The real “problem” with zoning enforcement (which is not, as stated, with some supposed lack of binding element adherence) is with (a) the difficulty of enforcing zoning regulations generally and (b) the general lack of enforcement of sign controls.
a. Difficulty of Zoning Enforcement
As to the first issue (the difficulty of enforcing zoning
regulations), there are hundreds, perhaps thousands, of various small zoning
violations out there (probably mostly uses that have been in existence for
years but do not quite rise to the level of legal nonconforming uses or that
neighbors and enforcement authorities simply ignore, perhaps because of the
nature of the area of town where they exist).
Whereas the Binding Element Enforcement Act works well for binding
elements, other types of zoning violations are almost impossible to enforce
because of long-standing difficulty in convincing District Court to take zoning
violations seriously. I could elaborate,
but former Planning Commission Director Clark Bledsoe is probably the best
resource to explain the problem because he faced it for years. Suffice it to say that a number of solutions
exist, with different opinions about how to solve the problem. But a new Metro Code Enforcement Board,
perhaps like the current City of
b. Lack of Enforcement
of Sign Controls
As to the second issue (lax enforcement of sign controls),
outright illegal signs combined with signs that remain legal but unnecessary
are a significant blight on this community.
A good place to help understand the problem of signage is to stand on
Bottom line here, as we look at this whole subject of local land planning and development, we should not ignore zoning enforcement, which offers perhaps the quickest and most significant fix to what most people agree is a local problem -- the aesthetic quality of life.
5. MAKE
THE SYSTEM BETTER, DON’T CHANGE IT AGAIN
a. Evolution of 2020
and Its Focus on Planning, not Process
For nearly a decade, our community worked on the Cornerstone 2020 project. It began with much hullabaloo and great media fanfare. For years many committees involving hundreds of people from all across our community, representing all points of view, debated various land use topics. Over time, the process got a bit off track. For a while it even looked like the years of significant effort might end in total failure. That is, in part, because what had begun as Chamber of Commerce Chairman Larry Leatherman's vision of a strategic plan for growth quickly became something much different in the eyes of many people, notably those who grabbed control of the 2020 project when Larry suddenly passed away. In time, Chamber interest faded because local business volunteers couldn't continue to devote the kind of time to the project that full-time community activists could. A very small group of Chamber volunteers and staff ended up with the enormously time-consuming job of representing the business and development community in the 10 years of subsequent, ongoing 2020 discussions and debates which helped ultimately get the 2020 project back on an acceptable track.
One particularly important point here is that, when you get into planning, especially extended planning of the kind described, a sizeable percentage of the affected community of interest is not going to be able to devote the sustained effort to a planning project of this magnitude that others with more time on their hands, and often of a much narrower perspective and much different set of objectives, may be able to devote.
Interestingly, if there have been more than a few months
since I left
Despite the fact that the process of planning and zoning has improved little over the years, even though planning may have greatly improved, I believe it is a waste of everyone's time from this point forward to spend one more day discussing either how to remarkably shorten or completely overhaul these processes. Tweaking things, however, may be worth some effort. Here is why.
b. Process: Length and Timing Issues
As to length of the process, applicants have long complained about the length of the process. I certainly sympathize with them. However, the fact of the matter is that, far and away, most of the time spent in the plan review process, in most instances, is prior to any official documents even being filed with the Planning Commission. The official process really begins (from a zoning standpoint) with a plan filed for preapplication review by staff of the Division of Planning and Development Services (DPDS), which only takes about 30 (usually less than 30) days to circulate the plan among the various agencies and hold a preapplication conference with the applicant and its professional representatives. Not bad. After the preapplication conference, a final plan, in most instances, can be revised, receive stamps of preliminary approval from applicable agencies and officially be filed within 30 more days. Again, not bad. LD&T normally meets on the plan within two weeks, which is as quick as it can meet. LD&T meets twice a month. Right now public hearings are being scheduled about 60 days after the LD&T meeting, sometimes up to 90 days depending upon caseload. Oftentimes this is even quicker than the applicant is prepared to be able to present its case. Statutorily, 30 days notice is required, and that really is the minimum that neighbors should expect. After the Planning Commission holds its public hearing, it normally acts on the same day as the public hearing. In those instances in which it doesn't act, oftentimes it is not something to which anyone even objects. Local legislative bodies by statute have 90 days to finally decide following a zoning recommendation of the Planning Commission. I don't think that that time period can be shortened. Minutes have to be approved. Transcripts have to be typed. Records have to be copied. Files have to be transmitted. And it takes time for local legislators to review the evidence, meet and vote twice on an ordinance, as required by law.
Consequently, in light of the foregoing, there really isn't
any time that can be saved in the official rezoning process. The pre-filing time that is spent is really a
function mostly outside the control of government. In most cases, applicants take a lot of time
prior to official filing (sometimes years) because there are lots of bases to
touch, often including many different constituencies to meet with; there are
market, traffic, air quality, et
About the only thing that government can do to shorten the process is to avoid the kind of costly delays often caused by moratoria and studies.
c.
Process:
Impacts of Never Ending Plans and Studies
As respects the subject of the small area and corridor plans
and studies, no doubt there are differing points of view on this subject. However, having closely monitored many and
served on several study groups appointed over the years, my experience has been
that planners are often prevented from doing honest planning. As importantly, it is nearly impossible,
among other things, for planners to predict the many market trends that come
and go, to anticipate the various successes and failures in business that
influence those trends, or to foresee the many changing community design
standards that occur over time. Also,
some of the small area plans, as written, are just plain difficult to interpret
or, worst of all, inconsistent with the new Cornerstone 2020 Comprehensive
Plan, which legally they can't be.
Many believe that the guidance of a relatively broadly worded Comprehensive Plan implemented in accordance with contemporary community standards (which is what the Cornerstone 2020 Plan is) probably represents the best planning that we have done over the years in this community and can ever really expect. Even the old 1979 Comprehensive Plan, considering the evolution of the community's and the Planning Commission's interpretations and implementation of that plan over the years, is pretty good evidence of how a flexibly worded plan granting relatively broad discretionary authority to a Planning Commission can result in positive change over time. Drive around this community and look at developments, not just in the context of where they are and what they look like, but more importantly in the context of when the land use decision was made and what the community's standards were at the time the land use decision was made. Projects approved in the early '80s look dramatically different than projects approved in the mid to late '90s and especially since adoption of the Cornerstone 2020 Plan when, for example, the Planning Commission started growing in confidence and delving aggressively into issues of specific site planning and building design and thus started taking much different views, than previously, on how to address compatibility, how to provide for more effective long-term utilization of our diminishing resource, which is land, and so forth.
d.
Process:
Better Use of LD&T
One of the things long advocated, but not yet realized, is
better use of the Land Development and Transportation (LD&T) Committee
process. At various times in the history
of LD&T, LD&T has served a fairly useful function. Even today, some LD&T days are better
than others. Depending upon the LD&T
chairman and such things as whether there is a ball game scheduled that
evening, LD&T may or may not take the time to seriously review and discuss
a case while it is still in an early stage of the development review
process. LD&T can and should offer
helpful suggestions, even going so far as to suggest that an application stands
little, or alternatively a good, chance of approval. That type of helpful information is
beneficial to all concerned.
Unfortunately, the current zoning process in
e.
Process:
Consider Delaying Decisions in Many Cases for Two Weeks
Following the Public Hearing in Order to Evaluate the Evidence
Other communities (even smaller, seemingly less
sophisticated ones) sometimes do a better job than we do locally of reviewing
and evaluating the evidence and making certain that decisions are based on the
evidence submitted, not which way the wind might be blowing on a given
day. For example,
f.
Process:
Four Specific Ideas for Improvement
Here are four ideas. Number 1, cases should seldom be docketed for LD&T until all the many, technical details are fully addressed. This will shorten LD&T’s review of meaningless small stuff best left to DPDS staff and will allow LD&T more time to deal with more important stuff. Number 2, demand that LD&T meet as long as it takes to conduct a meaningful preliminary review of cases. If LD&T is just going to set public hearings and primarily just hear perfunctory comments and do nothing more, then it is not doing its job of commencing the process of a deliberate meaningful review, of setting the stage for future decision-making and of providing meaningful feedback to the applicant and objectors, if any. Number 3, continue to appoint polite, appreciative, open-minded decision-makers who are willing to devote the time necessary to this extraordinarily important step in the development review process and who understand and are willing to be better educated about their legal responsibilities and the legal importance and meaning of the new Land Development Code and Comprehensive Plan. A healthy respect for the law is essential, not optional. Number 4, consider the use of hearing officers and perhaps even mediators to try to resolve as many issues as possible in advance of a public hearing.
6. EXTRAORDINARY COST
OF PRELIMINARY PLANNING
One of the things that government and others seem relatively
oblivious and unsympathetic to is the high cost of preliminary planning. The same number of cases that we handle today
requires many times more the amount of effort than of even a few years
ago. This is due to a number of factors,
not the least of which is increased neighborhood involvement which is
understandable and completely appropriate as our community becomes more crowded
and the pressures of development encroach into both more already built-up and
more formerly unbuilt areas. But the
demand by planners and the Planning Commission for more and more technical
information and more and more detail up-front about a project requires more and
more costly front-end planning. Costly preliminary planning, while probably
unavoidable now as a consequence of the greater regulatory imposed impediments
to develop brought about by Cornerstone 2020 drives up the price of an eventual
product, for example housing. It may
also drive more and more movers and shakers, who have built this community over
the years and who, as a community, we largely count on to finance and build our
future, out-of-town or into retirement.
We are certainly seeing high levels of frustration.
Developers from around the country and local developers who
also work in different communities generally agree that
7.
CONSIDER
THE EVIDENCE
The Planning Commission in a zoning case sits in an adjudicatory
capacity, meaning that, by law, it is not allowed to simply look which way the
wind is blowing. Planning Commissioners,
oftentimes, do a good job of thinking seriously about things. But too often too many of the Planning
Commissioners appear to pay far too much attention to the unfounded, often
frivolous hearsay testimony of opponents, which, by law, simply stated, is
against the law. The opinion testimony
of neighbors, while important because it may help the Planning Commission
understand issues that sometimes the applicant/developer might not fully
comprehend, is often inadequate to serve as a legally substantial basis upon
which to base a quasi-judicial zoning decision. There is not a case that
serious-minded applicants submit anymore where their professional
representatives don't go to extensive efforts to try to inform neighbors, well
beyond the two tiers of adjoining property owners who, by statute, must receive
official notice. As land use professionals,
we send letters, we hold meetings, we make ourselves available for follow-up
calls and meetings, and we often take technical experts and public officials to
these neighborhood meetings to address, not only the concerns that opponents
and neighbors might have of our clients' projects, but also the larger concerns
that may exist in the subject area, such as those involving stormwater drainage
which are prevalent countywide.
Planning Commissioners need to be better educated about their legal responsibilities to review the evidence, including all of the evidence, before a decision is made, especially in light of the extraordinary costs referenced above.
8.
POLITICS
VS. THE COMPREHENSIVE PLAN
Understandably, politics periodically plays a part in
these cases. Neighbors understandably
use every occasion they can to twist the arms of elected officials,
historically especially in the City of
But because of the quasi-judicial nature of zoning decisions, politics should have little place in the process. Planning Commissioners should be good, solid, independent thinkers willing to become educated about the law and about planning before they begin making decisions. They should be dedicated to the job that they are supposed to do, which is to base decisions, not on which way the wind is blowing on a particular day or on political considerations, but rather on the Comprehensive Plan and what is right for this community in the long term. After all, that is why our new Comprehensive Plan is called the "Cornerstone 2020 Comprehensive Plan", not Cornerstone 2002 or 2003. In other words, it is the long term that the Comprehensive Plan is concerned about.
The same should be expected of Metro Council members. Elected officials should rely on the record
that the Planning Commission establishes.
From that record, they are empowered by law to reach the same or
different conclusions than the Planning Commission. But it is the Comprehensive Plan alone which
is to serve as the basis for both Planning Commission and Metro Council
decision-making in rezoning cases and the non-ministerial review of other
development plan cases.
WBB-NOV2002/Personal/ZoningWhitePaper-2.doc
JTR Rev. 10/21/2003 3:53 PM