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.uswww.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>
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