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.

Ken A. Bowers, AICP

Department of City Planning

One Exchange Plaza, Suite 304

Raleigh, NC 27602-0590

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

----- Original Message -----
From: "Bowers, Kenneth" <Kenneth.Bowers@ci.raleigh.nc.us>
To: "Paul Brant" <paulbrant@mindspring.com>; "Silver, Mitchell"
<Mitchell.Silver@ci.raleigh.nc.us>
Cc: "RCAC" <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

www.planningraleigh2030.com
________________________________________
From: Paul Brant [paulbrant@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>
“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
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