Re: [RCAC] RCAC presentation by Ken Bowers

Paul, Somehow I think that your questions could be more efficiently answered in a phone or face-to-face conversation. However, since you wish to keep the entire RCAC in the loop, I will respond by email. I would suggest, however, that we follow up on this with a conversation, and then memorialize that conversation with the RCAC. Let me address each of the key paragraphs in your email individually, setting aside any discussion of specific cases in Council committee: "My concern for the impact of the Guides on some of the Overlay Districts stems from the term "prescriptive" which by definition carries more weight than mere suggestion. The term prescriptive means "establishing or adhering to rules and regulations". That being the case it seems the Comprehensive Plan Policies that are prescriptive are framed as mandates but currently only the Code is a legally established mandate." This paragraph contains three claims: 1. The use of the word "prescriptive" in the Quick Guides gives those policies more force than they otherwise would have. 2. The word prescriptive only refers to laws and regulations, and therefore is improperly used. 3. The "prescriptive" policies have been framed as mandates. With regards to the first claim, the Quick Guides are not adopted policy document, and have only been produced as an aid to the public. Therefore, they cannot have the impact that you are ascribing to them. However, is the use of the word "prescriptive" a poor word choice? The definition you has quoted is not the sole definition of this word. Here's another: "1 a : to lay down as a guide, direction, or rule of action : b : to specify with authority." (Source: Mirriam Webster). The policies in question are intended to provide directions. These directions are consulted when reviewing development plans under the standards set forth in Section 10-2132.2. Staff gave considerable thought to the word choice, and feels it is appropriate. Lastly, have the policies been framed as mandates? Turning to the Comprehensive Plan text in Section 1.2, it states that these policies have been written "utilizing the word 'should' to distinguish the policy statements in the Plan from the legal requirements found in the City's codes, where the word 'shall' is the norm." Moreover, the Quick Guide itself states that strict accordance with a specific policy may not be required, if there are mitigating circumstances or if many other policies are advanced. Therefore, I cannot see how to proceed from a single descriptive word (prescriptive) in a Quick Guide to the broad conclusion that these policies are legal mandates. "Therefore I assume from your clarification that a case which is Code compliant would not be denied because it fails to implement one of the prescriptive policies of the Comprehensive Plan. That being said, it appears from the Quick Guide that the case would likely be deemed inconsistent with the policies and therefore most likely be denied solely on that basis. That seems to suggest that the Comprehensive Plan prescriptive policies carry more weight than the actual Code even though you suggest the code standard would control." This paragraph appears to be confusing the two Quick Guides, which cover very different types of cases--rezoning petitions and development applications. Turning first to rezoning, inconsistency can be a reason for denial of a rezoning petition by the City Council, but it does not automatically lead to a denial. A rezoning is a legislative decision. It is not an entitlement. The City Council, under State law, has the power to deny or approve inconsistent cases depending on their judgement regarding the overall merits of the case and whether the rezoning is reasonable and in the public interest. With regards to develompent review, the Comp Plan policies only carry any weight by virtue of site plan standard #2 (10-2132.2), which states that the Planning Commission and/or Council must find that development plans reviewed under this standard are in "accordance" with the Comprehensive Plan. The need for this finding is not new to the 2030 Plan, but was in force under the prior plan. A finding that a development plan is not in accordance has been, and remains, grounds for denial of the case. However, it has been the interpretation that the use of "should" statements in the Comprehensive Plan grants the PC and Council some discretion in determining whether the accordance standard has been met. Therefore, I do not see how the policies can be interpreted as having more weight then the code, when (1) they only are invoked when such direction is given in the code; and (2) the use of "should" statements provides some discretion in the application of the standard. "Somehow, that statement "the code standard would control" does not reflect a recent analysis from the Planning Department that claimed our NCOD case TC-3-09 was inconsistent with the Plan policies even though it now meets all the current Zoning Code and Overlay District requirements. Are you suggesting then that while a case might meet all the Code requirements it should be denied on the basis that it is inconsistent with the Comp Plan Policies? That seems to put significantly more weight behind the Comp Plan than you suggest in your response." You are quoting from the Quick Guide on development plans and applying that language to the rezoning process, where the language is not applicable. A rezoning is an amendment to the code--how can a code amendment be said to meet, or not meet, code requirements when it is changing the code itself? The application of the Comp Plan to the evaluation of rezoning petitions is a fundamental mechanism by which the Plan is implemented. Surely you are not suggesting that a rezoning petition to go from R-6 to R-15 in an area designated for Low Density Residential on the future land use map is automatically OK because there is nothing in the code against it? "...As I see it, no NCOD or Historic Overlay Districts will ever be approved since it will almost always differ from the specific requirements of the underlying zoning district acknowledged by the Plan for that area and probably violates at least one prescriptive policy for which it will be deemed inconsistent with the Comprehensive Plan and mostly likely be the basis for denial by the Planning Commission and/or Council. " Whether or not an overlay district differs from the specific requirements of the underlying zoning district is irrelevant for the consistency analysis. Further, violating a single policy does not automatically result in a determination of inconsistency. Lastly, inconsistent petitions may still be approved if they are reasonable and in the public interest. Regardless, based on a preliminary look, most if not all NCODs on the books today fall within the ranges specified on the future land use map, and would not be considered inconsistent were they to be evaluated today. "That is why I am concerned that your recently published Quick Guides place an unjustified burden on Overlay District requests to fit the strict intentions of the Comprehensive Plan Land Use and Policies when there are no such requirements demanded within the City Zoning Code for Overlay Districts. " Again, the Quick Guides do nothing more than summarize (1) the role of the Plan, as set forth in state or local law, and (2) the policy guidance found in the Plan. They do not place any additional burden on any decision. "I believe Overlay Districts such as an NCOD and HOD are special cases and the guidelines need to reflect an appropriate method for evaluating them. " Overlay Districts are specialized zoning tools, but they are still zoning districts, and are subject to the same analysis as any other rezoning, including Comp Plan consistency, compatiblity, public benefits and detriments, etc. There is nothing in Section 10-2012 that would argue otherwise. I look forward to continuing this conversation in a future meeting. Thanks, Ken Ken A. Bowers, AICP Deputy Director Department of City Planning City of Raleigh One Exchange Plaza, Suite 304 Raleigh, NC 27602-0590 919-516-2633 fax 516-2684 kenneth.bowers@ci.raleigh.nc.us<mailto:kenneth.bowers@ci.raleigh.nc.us> www.planningraleigh2030.com<http://www.planningraleigh2030.com/> ________________________________ From: Paul Brant [mailto:paulbrant@mindspring.com] Sent: Saturday, November 28, 2009 12:52 AM To: Bowers, Kenneth Cc: Silver, Mitchell; RCAC Subject: Re: RCAC presentation by Ken Bowers Ken, Thanks for the references and clarification and yes Thanksgiving was good. My concern for the impact of the Guides on some of the Overlay Districts stems from the term "prescriptive" which by definition carries more weight than mere suggestion. The term prescriptive means "establishing or adhering to rules and regulations". That being the case it seems the Comprehensive Plan Policies that are prescriptive are framed as mandates but currently only the Code is a legally established mandate. Therefore I assume from your clarification that a case which is Code compliant would not be denied because it fails to implement one of the prescriptive policies of the Comprehensive Plan. That being said, it appears from the Quick Guide that the case would likely be deemed inconsistent with the policies and therefore most likely be denied solely on that basis. That seems to suggest that the Comprehensive Plan prescriptive policies carry more weight than the actual Code even though you suggest the code standard would control. Somehow, that statement "the code standard would control" does not reflect a recent analysis from the Planning Department that claimed our NCOD case TC-3-09 was inconsistent with the Plan policies even though it now meets all the current Zoning Code and Overlay District requirements. Are you suggesting then that while a case might meet all the Code requirements it should be denied on the basis that it is inconsistent with the Comp Plan Policies? That seems to put significantly more weight behind the Comp Plan than you suggest in your response. I believe NCODs and HODs are supposed to be judged differently as indicated in City Code 10-2011 (b) below. "(b) Enumeration and Descriptions of Zoning Districts. There are three types of zoning districts: General use districts are those in which a variety of uses are permitted; Conditional use districts are those in which limited uses are permitted and other regulations are imposed; Overlay districts are those which overlap one or more general and/or conditional use districts. Overlay districts involve additional regulations on some or all property within underlying general and/or conditional use districts." Likewise 10-2054 (e) 4 states; "The regulations contained in §10-2054(g) for the specific adopted Neighborhood Conservation Overlay District zoning may contain standards which are more stringent or less stringent than the underlying district; in the event of any conflict, the regulations contained in §10-2054(g) for the specific adopted Neighborhood Conservation Overlay District zoning shall control." Having reviewed all of the existing NCODs currently codified in the Raleigh City Code I find many instances where several of the existing Neighborhood Built Environmental Characteristics and Regulations for these NCODs establish minimums and maximums that differ from their underlying zoning district and often overlap the regulated minimums and maximums of more than one general and or conditional use district as the NCOD regulations permit. In fact the NCOD creates its own unique set of minimums and maximums based on the as built environmental characteristics of the neighborhood studied, which by their very nature are not likely to fit any one underlying district's regulations. By forcing an NCOD to fit a particular zoning districts minimums and maximums through the new Comprehensive Plans Land Use designation and Policies you are undermining the well established and codified norm for NCODs. How then will the guidelines for analysis of a NCOD Text Change and subsequent rezoning case be done? The current Quick Guides for evaluating Zoning Map Amendments and Preliminary Development Plans against the new Comprehensive Plan, you provided to us at the RCAC meeting, do not consider the allowable deviations of an NCOD from the specific requirements of its underlying zone. Therefore the Planning Department's analysis will most likely find that the NCOD Text Change and future rezoning case is inconsistent with the Land Use guidelines and prescriptive policies contained in the Comprehensive Plan. That in fact has been our experience as TC-3-09 NCOD for Holly Ridge Farms was evaluated and reported to Council by the Planning Department concerning its inconsistency with the new Comp Plan Land Use and Policies. As I see it, no NCOD or Historic Overlay Districts will ever be approved since it will almost always differ from the specific requirements of the underlying zoning district acknowledged by the Plan for that area and probably violates at least one prescriptive policy for which it will be deemed inconsistent with the Comprehensive Plan and mostly likely be the basis for denial by the Planning Commission and/or Council. That is why I am concerned that your recently published Quick Guides place an unjustified burden on Overlay District requests to fit the strict intentions of the Comprehensive Plan Land Use and Policies when there are no such requirements demanded within the City Zoning Code for Overlay Districts. In fact the Overlay District is viewed as a higher order set of regulations than most as stated in 10-2012 (l) as follows: "(l) General use districts and conditional use districts with one or more overlay districts shall be higher in classification than corresponding districts without overlay districts." I believe Overlay Districts such as an NCOD and HOD are special cases and the guidelines need to reflect an appropriate method for evaluating them. Otherwise you are defeating the whole principal on which these Overlay Districts were established. That is, to determine the as built environmental characteristics of the neighborhood and establish a unique set of regulations that will preserve and protect that environment (in spite of its deviation from the underlying zoning district) based on the will of the majority of property owners in the designated NCOD area. If that intent is to be protected then the new Comprehensive Plan and its Guides for evaluating these applications needs to reflect that unique overarching principal. To date that is not the case or our experience with the first NCOD evaluated under the new Plan. So, all that to say, I would definitely like to see the current Guides revised to better reflect the uniqueness of Overlay Districts such as NCODs and HODs, and the the Guides ultimately Codified or become part of the Comprehensive Plan so they are not changed without public comment or debate. This would provide some stability in the process rather than leave them open to administrative revision without debate. Since these are critical documents influencing important land use and rezoning case decisions it would give a measure of confidence to applicants and citizens that the basis for evaluation is firmly established. Thanks for your time and attention to this important matter. Sincerely, Paul paulbrant@mindspring.com<mailto:paulbrant@mindspring.com> ----- Original Message ----- From: "Bowers, Kenneth" <Kenneth.Bowers@ci.raleigh.nc.us<mailto:Kenneth.Bowers@ci.raleigh.nc.us>> To: "Paul Brant" <paulbrant@mindspring.com<mailto:paulbrant@mindspring.com>>; "Silver, Mitchell" <Mitchell.Silver@ci.raleigh.nc.us<mailto:Mitchell.Silver@ci.raleigh.nc.us>> Cc: "RCAC" <rcac@eastraleigh.org<mailto:rcac@eastraleigh.org>> Sent: Friday, November 27, 2009 10:29 AM Subject: RE: RCAC presentation by Ken Bowers. Paul, The terms "guiding" and "prescriptive" policies do not appear in the Plan, but the concept they describe is taken straight from Section 1.2 of the document. Here's the relevant passage, quoted verbatim: "Based on the specifics on a particular policy, it may apply exclusively to City actions, or it may set forth an expectation regarding private sector activities. The former policies are typically worded as an ongoing aspiration or intent, using active words such as "encourage", "promote", and "provide". The latter such policies are typically worded as a statement expressing a desired state or outcome, utilizing the word "should" to distinguish the policy statements in the Plan from the legal requirements found in the City's codes, where the word "shall" is the norm. In any specific case where the application of a Comprehensive Plan policy conflicts with a use, height, or density standard in the zoning and development code, the code standard will control." When we were developing the Quick Guides, we were looking for a shorthand method of referring to the concept embodied in the above paragraph. Referring to the "shoulds" as prescriptive policies, and the remainder as guiding policies, seemed to be a useful rhetorical device. However, it has no adopted policy implications beyond the language quoted above. Whether or not to introduce this shorthand description into the text of the plan is something that could be considered as part of the next update. Let me assure you, however, that how policies were written during the drafting of the Plan was done mindful of how those policies should be applied. Note that Section 1.2 of the Comp Plan has a footnote that reads as follows: "The City has available a stand-alone guide highlighting those policies most relevant to rezoning petitions and preliminary development applications." The Policy Guide referenced in the Quick Guides is that document. The words "Effective November 1" refer to the effective date of the Comprehensive Plan. The Quick Guides are only intended to provide guidance to the public--they do not substitute for the Comprehensive Plan, and any conflict between the two would be resolved in favor of the Plan. I am unclear what statements in the Quick Guides would serve to diminish the ability of citizens to apply for overlay zoning. The Comp Plan has several policies promoting the use of NCODs and HODs. Regardless, the Quick Guides are informational documents, and not policy documents. Hope you had a happy Thanksgiving. --Ken Ken A. Bowers, AICP Deputy Director Department of City Planning City of Raleigh One Exchange Plaza, Suite 304 Raleigh, NC 27602-0590 919-516-2633 fax 516-2684 kenneth.bowers@ci.raleigh.nc.us<mailto:kenneth.bowers@ci.raleigh.nc.us> www.planningraleigh2030.com<http://www.planningraleigh2030.com/> ________________________________________ From: Paul Brant [paulbrant(a)mindspring.com] Sent: Wednesday, November 25, 2009 9:02 PM To: Bowers, Kenneth; Silver, Mitchell Cc: RCAC Subject: RCAC presentation by Ken Bowers. Ken & Mitchell, At the RCAC meeting November 18th you provided information about two Quick Guides for Rezoning Petitions and Preliminary Development Plans. In the information are statements that the new "Comprehensive Plan draws the distinction between "guiding" policies, intended to guide City decisions; and "prescriptive" policies, which are intended to influence private sector actions and are typically worded as "should" statements." As the complete plan is available on the web site in PDF form I did a word search on those two terms and found 0 references to prescriptive policies and only 4 references to "guiding" related to policies. Am I missing something? If this evaluation process is so fundamental to the Plan and Code why is there no mention of these terms in the Plan document. I also notice that the date on the handout says "Effective November 1, 2009. Was this ever brought forward to Council as a City Policy recommendation? Will the new Comprehensive Plan be amended to capture this rezoning case and development plan evaluation policy and in so doing provide a forum for public input to the process similar to a Text Change? It seems to me that several of the statements in the Quick Guides will significantly diminish the ability of citizens to apply Overlay District Zoning be it Historic or Neighborhood Conservation since by intent these overlay districts are most likely to be more restrictive than the underlying zoning districts within a land use category. Your guide would suggest that since such Overlay Districts would differ from the intended future land use they would be considered inconsistent with the Plan and recommended for denial. How will you reconcile these differing objectives? Paul paulbrant@mindspring.com<mailto:paulbrant@mindspring.com<mailto:paulbrant@mindspring.com%3Cmailto:paulbrant@mindspring.com>> "E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties by an authorized City or Law Enforcement official." <mailto:paulbrant@mindspring.com> “E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties by an authorized City or Law Enforcement official.”