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HomeMy WebLinkAboutMinutes - Planning and Zoning Commission - 1/27/2005 APPROVED MINUTES PLANNING COMMISSION AND GENERAL PLAN UPDATE REVISION COMMITTEE JOINT STUDY SESSION JANUARY 27, 2005 —6:00 P.M. TOWN COUNCIL CHAMBERS 11000 NORTH LA CANADA DRIVE STUDY SESSION AT 6:05 PM CALL TO ORDER ROLL CALL PLANNING AND ZONING COMMISSIONERS PRESENT: Chair Don Cox Vice Chair John Anning Commissioner Pete Bistany Commissioner Ken Kinared Commissioner Doug McKee Commissioner Don Manross GENERAL PLAN UPDATE REVISION COMMITTEE PRESENT: Bill Adler Carl Kuehn Teree Bergman Melanie Larsen Rosalie Roszak Robert Delaney Don Chatfield Also present: Brent Sinclair, Community Development Director Bryant Nodine, AICP, Planning and Zoning Administrator Excused: Pat Spoerl Ed Taczanowsky Carl Boswell 1. GENERAL PLAN UPDATE: MEETING PRIOR TO SIXTY-DAY REVIEW Chair Cox briefly outlined what he hoped to accomplish at the Study Session. The meeting was not called for a discussion of issues. According to the schedule that was laid out the Planning and Zoning Commission was to review the recommendation prior to going to the 60 day review. If there are recommendations from the Commission, he would like them to the Revision Committee and ensure that the Revision Committee is very clear exactly what the Commission is talking about, but no response is necessary. In the next 60 days the Revision Committee may meet and discuss what changes the Commission presents. Mr. Sinclair distributed the latest revised version of the Draft General Plan book. This book January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 2 has everything as recommended, reviewed and revised by the Revision Committee, including the "shall" statements. This will be called the "baseline" from here on. Everything else should be discarded to avoid confusion. Any changes hereafter will be done in a different color. The book is ready for the 60 day review. No changes are anticipated until after the 60 day review is completed and public comments have come in. This is also posted on the website. Mr. Adler stated that the Study Session's purpose was to try to understand not only the revisions but any questions the Commission has with regard to the revisions. He would want to respond to questions or objections the Commission might have to anything proposed by the Revision Committee. • Findings of Fact, page 13, #1: Achieving community and environmental compatibility is difficult to comprehend and measure. Chair Cox suggested putting a period after the word "community". Commissioner Kinared pointed out that on page 29, Table 2 identifies different land uses. If a column were added stating whether those uses were revenue producers or revenue consumers, it would help answer how to measure community and environmental compatibility. Mr. Adler stated that sustainability requires a consideration for the environment. Sustainability is defined as being equally made up of the social, the economic and the environment. Community compatibility is a blending of the proposed use with the existing use. Mr. Chatfield had feedback from an HOA meeting that they would like to see the Town do a better job of assessing economic impact. The perception is that the Town is one-sided in thinking about economic impact to the exclusion of community fabric and environmental implication. Economics, livability of a community, and environment need to be balanced. Ms. Bergman said that socio-economic does not encompass environmental. It is important to include environmental. Many land uses are not consumers or producers per se. Overall economic health of a community encompasses things that may not be of immediate economic benefit. Commissioner Bistany thought this was okay, but not understandable. Citizens have to comprehend the plan. Say what you mean so the citizens will understand. Vice Chair Anning agreed with Commissioner Bistany. The Town Council will ultimately make the decision based on the 4 findings of fact based on their own interpretation. The plan should be cleansed of buzz words and jargon. It is important to be careful how terms are used because there may be many different meanings. Ms. Roszak stated that she has heard the word compatibility used in conjunction with surrounding land uses in many jurisdictions. January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 3 Mr. Adler said the word sustainability has been used consistently through the General Plan Update process starting with the Future Search Conference. It is a term that was used freely by citizens. • #3, Page 13, Conflict between market demand and community acceptance: How can the conflict be worked out. How can the subjectivity be taken out of this conflict? Mr. Chatfield said that the intent of this language is that market demand and community acceptance is essentially one and the same. The finding is not intended to be a test as to what type of business, but whether there is sufficient population and demographic indicators that the use will be used by the people living there. Chair Cox pointed out that there may be a great market demand for a specific use, but the community may be totally against that use. He felt that the sentence should have a period after "viability". Through natural progression he will vote and put as much weight on community acceptance as he sees fit, as will each Council person. Terms like "community acceptance" provides an instant out, is not necessary and does not help. The goal should be to have market demand and viability in the community. Mr. Kuehn said that there was a prior finding that was always problematic, that if something exists somewhere else in the Town, you can't do it. Everyone should be able to come forward to make a plan amendment being a private property owner. Commissioner Bistany asked if community acceptance is based on a percentage. Mr. Kuehn stated that these findings of fact are what an applicant has to achieve in his documentation when he brings a proposal forward to the Commission to see if it would be considered. By having the language of community acceptance in there, it puts him in a position to actually open a line of discussion with the people who would be impacted and promotes a dialogue early on. If the applicant has to document community acceptance, perhaps if this language is in the plan, it would encourage him to approach the people and open a dialogue early in the process. Commissioner Bistany asked if one of these factors is not there, does it mean it is automatic grounds for turning the amendment down. Ms. Bergman felt there were two different things: The applicant has to satisfy all four findings, but it doesn't say "reflects market demand and must assure viability and must have community acceptance. It says market demand is for the purpose of assuring viability. Chair Cox strongly disagreed with what Ms. Bergman was saying, because it says to assure viability and community acceptance. If what Ms. Bergman is saying is right, a period must be put behind market demand. Mr. Adler said that the purpose of findings of fact is to force discussion of considerations that are relevant to judging whether the proposed amendment should be approved or January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 4 denied. Terminology is in here so that the applicant is required to bring these subjects forward. Meeting them (the requirements) is a subjective thing that each of the Commissioners and Council persons will decide for themselves, whether they are met or not met. The applicant needs to address them. The purpose of the findings is to suggest words which trigger disclosure and brings the applicant to a position where he needs to provide what he considers to be evidence that there is market demand which will lead to viability and community acceptance. The problem in the past was that the findings were too ambiguous. To fix this, terminology should be used which will trigger disclosure by the applicant so a dialogue and exchange of opinions can occur at the Commission level, the Council level, and with the community as a result of these words being in the plan. Market demand is linked to the other two considerations, but eliminating those two considerations removes the opportunity for the applicant to be engaged in a dialogue about viability, what is going to bring about success of his project, and community acceptance, what is going to bring about patronage. Commissioner Bistany said assure is a word where you have to be absolutely certain. "Which leads to" market demand would be better than "assures". Chair Cox said the problem is the word "assure". There is no way anyone can assure viability. Vice Chair Anning said that a market demand means that the community will patronize whatever the business is. A different community acceptance is the neighbors, i.e. "not in my backyard." If we are not talking about the neighbors, the wording is okay. Mr. Kuehn said the wording is to stimulate the dialogue early on and make the applicant present an effort to document that he is taking concerns, whether they are local or global, into consideration. The argument Mr. Adler brought forward could equally be applied to the words community and environmental compatibility in finding #1. These specific words are in here to bring documentation forward by the applicant at the early stages for you to consider. If you leave out all these words, anything that comes before you meets the plan. That was the problem with the last findings. Ms. Roszak said if there was not enough demand on existing businesses, it would not make sense to build additional, similar businesses. Also, market demand could be demonstrated to be needed for specific types of businesses, but the community may not accept that type of business. Mr. Chatfield pointed out that the central question is how community acceptance is defined. As discussed, he did not interpret the recommendation to be that this is a response to "N I M BYism". This is not a tool that if anybody opposes it and there is community opposition, that the project gets shot down. Mr. Delaney said if you want people to understand what the plan is saying, it needs to be expanded. Have a paragraph or page explaining each finding in terms as discussed here tonight. Chair Cox agreed and thought it might be good to have examples after the findings. Staff should not write substantive language regarding this. At the end of the 60 day review January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 5 words could be added to clarify the terms and examples provided either in the appendix or outside the body of the document. • #4, Page 13, "community as a whole, or a portion of the community". The concern is that the community as a whole or a portion of the community pits two groups of people against each other. There will be disagreements. The wording is all contained in the word community. Leave out "as a whole, or a portion of the community". Mr. Adler stated that as said before in connection with the other findings, some of the words are there for the applicant's purpose, to force the applicant to address, what may to you be obvious and what you would routinely consider. But we need to hear from the applicant whether he is satisfactorily addressing any adverse impacts for the broader community as well as for that portion of the community that may be immediately impacted. If this is not in a finding, the applicant may not feel he needs to address it. One of the purposes of the findings is to bring to the attention of the applicant the things that are important to the community that he must address. Whether he addresses them satisfactorily is for the Commission and Council to decide. The applicant needs to understand that he needs to address the findings in his presentation, so that the public, the media, the Commission and everybody hears how his proposed change is for the improvement or betterment to the community. The applicant needs to be directed by this information. Commissioner McKee said that the first sentence before the findings says that the applicant needs to meet all of the following findings. If interpreted narrowly, it makes it difficult for any applicant to meet all of the findings. Could the wording be softened to allow judgment on the part of those making decisions? As you expand the definitions, it makes it tougher on those who have to judge. Commissioner Bistany suggested leaving out the word "all". Commissioner Kinared said by using the words "a portion", you are giving a dictatorial authority to a few. Any one person can say they are being adversely impacted. Ms. Roszak said a General Plan amendment process should be difficult. This is a document the whole community has agreed upon. The applicant has the burden of proof to show the Commissioner, Council and community as a whole why an amendment is a good thing. Ms. Bergman said part of the job of the Commission and Council is weighting the evidence that the applicant presents. In cases where there is a possibility of adverse impact, the developer has some responsibility to acceptably mitigate that. Chair Cox agreed that the process for amending the General Plan should be difficult, but it should not be impossible, and it should not be held up because a very small group of people do that (say they don't like it) and it is going on right now. The words are unnecessary. Community includes "a portion". It is an all inclusive word. January 27, 2005 Jt. Study Session P&Z Commission& GP Update Revision Committee 6 Mr. Adler said the Commissioners should listen to the concerns of the people and use their opinion if the findings are met because the efforts of the landowner or developer are sufficient to meet this finding. Chair Cox did not disagree with Mr. Adler, but said from a practical standpoint, the amendment may get turned down because of the political structure. People say they have got to take care of the 4-5 people over here, etc. It happens routinely and is unfair to the community and unfair to the developer. He felt the findings of fact as written in the 1996 plan are better than those in the current draft. Mr. Kuehn said the language is to stimulate the applicant to bring information forward early in the process. The way the findings of fact are generally dealt with, is that they are ignored. These are not designed to make it impossible, but to make it a challenge and to stimulate the applicant to present ample documentation to all of you (the Commission and Council) to make an informed decision. If these are generalized and taken out the language, then any application that comes forward moves through the process. Chair Cox strongly disagreed with Mr. Kuehn. Taking out those words (as a whole or portion of the community) does not change the meaning. Those words are redundant and redundancy is dangerous in this particular case. Mr. Delaney reminded the group that this is being written for the general public and needs to go into detail. Commissioner Bistany said he would change the language at the first of the findings to say "All proposed General Plan amendments must address the following findings". Whether the findings are met is a subjective opinion. Mr. Kuehn said it is calling for the applicant to present facts and other material to support the conclusions that these findings have been met. Mr. Adler said that during the process of discussing the proposed General Plan in 2003 with the community at large and contrasting it with the 1996 Plan, the "shalls", the discrepancy in the definition of policy, and this (findings of fact) probably generated more negative opinions about voting for the plan than anything else. A concern heard time and again was that they wanted the applicant to bear the burden and that is why the last sentence is important: "The applicant for the amendment shall have the burden of presenting facts and other materials to support these conclusions by clear and convincing proof." It is not the Commission's burden to prove that the findings are met. It is the applicant's burden to present evidence that meets the Commission's satisfaction. We (the General Plan Update Revision Committee) are trying to respond to what we heard from the community when they voted the plan down. Mr. Chatfield clarified what he was hearing, was that the Commission has a concern that the way the plan is written now could create conditions in which a tyrannical few could drive the results. Commissioner McKee said the statement saying "meeting all" implies that each of the conditions is either 100% on or 100% off. That is never the case. This implies that it January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 7 would throw out the applicant. That is where the concern comes in about a small group being able to stop this. There needs to be a better way for the judges to know how to weight these. This implies that the findings are all weighted at 100% or 0%. • Shalls: Use of the terms "The Town shall" on all policy statements. Chair Cox also had an issue with the "shalls". There are very strong legal ramifications to the word shall. In a discussion with at least one of the Town attorney's, to paraphrase, it is scary, because with all the shalls it is starting to carry the weight of code. This not intended to be a municipal code. This is not a contract. This is not a legal and binding document, but is a planning document. Mr. Adler said in 1996, the Planning Commission attempted to give weight to the 4 findings of fact. The issue came up whether some of the findings were more important than other findings. It is impossible, without getting into specific cases and sites, to try to give weight to make the Commissioner's job easier. The Commissioner's job is to make the judgment. Regarding the "shalls", one of the issues is that there are two different definitions of policy. One indicated that a policy is a statement which carries an implied commitment and the other was an action the Town shall take. The Revision Committee chose the definition that it is an action the Town shall take. Removal of the shalls was an interpretation by the general public that the Town did not intend to follow and apply the goals and policies of the Plan. Mr. Chatfield said he has struggled with this, because he has been taught that when you are writing Code you use shall. When you are writing policy you don't use shall. This language is largely symbolic. Arizona case law around council interpretation of general plans is well established that council's have wide latitude. This can't be used, since it is a policy document, as a mechanism to force the Council to do something. The challenge is to assure the citizenry that this is a plan the Town will take seriously, without giving them the false impression that it is a tool they can use to bring action against the Council. Ms. Bergman agreed with Mr. Chatfield. As a planning professional, it is not what she would have picked were she writing this from scratch, but as a practical matter it doesn't make any difference. The elected officials can do whatever they want whether you word it this way or not. If you look at most of the statements, they aren't ordinance type, regulatory statements, i.e., "encourage", "promote", etc. Chair Cox said if the Town attorney's say they are fine with the shalls, he is also. Ms. Larson said she has raised this concern on several occasions. She thinks it will be used to force recalls, etc., down the way. She looked at it as a PR marketing and global sense way. This is a planning and guiding document for the Town. People will hang their hat on (unintelligible) something wrong by not going to the letter of this thing. It has happened in the past many times. She hates to put something in that creates something like that again. Chair Cox said the word "shall" creates a playing field for litigation. January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 8 Mr. Kuehn asked if there was a problem with the definition of"policy". Policy is something the Town shall do. Chair Cox said if the legal staff has a problem with it, he has a problem with it. Commissioner McKee said if the previous plan was voted down, one of the reasons was all the discussion about the shalls being taken out. In the Council meeting when they were taken out, it was because one of the Council members misinterpreted how that would apply to their power to interpret the General Plan. If that person knows they have the power to interpret however they want, you will get over that hurdle. The legal issue was never brought up at that time. He has not seen any case law where that has ever been the basis for a lawsuit. He thinks the shalls should be kept the way the Revision Committee did them. Ms. Roszak said it was brought up that this is not a legally binding document. The problem is that the community as a whole believes it is legally binding and wants it to be. It doesn't make sense to the general public that it is not. Commissioner Bistany asked if the word "shall" should be defined. Vice Chair Anning said his concern about the word shall is where it is used. For instance, the sentence "The Town shall ensure the development of neighborhood commercial areas." The Town can't do that. We also need to be careful about where we use the word ensure as opposed to encourage. He hopes this will be reviewed one more time to address the wording. • Page 37, Revenue Generation, second sentence: Vice Chair Anning suggested prefacing the second sentence to read "Other revenue streams, such as, but not limited to, development fees, user fees, and annexations are other methods to pay for services. This would leave the door open for other revenue streams that may not be out there today to come on line and be useable. • Page 38, #3.1.9, Adequate notice: Mr. Adler commented on the last sentence of the paragraph, that adequate notice is not defined. The general public is not adequately informed with regard to an agreement once it is finalized. There doesn't seem to be enough time for the public to learn and gather information and send comments in to the appropriate people in a timely fashion. Does a time period need to be specified? Chair Cox said that he understands what the Committee is trying to do, but in practicality of making that happen is very difficult. Mr. Kuehn said that the Town Manager, Mr. Sweet, was asked to explain how an annexation takes place, and sometimes it comes down to the eleventh hour and notices are running back and forth, etc. The problem is that sometimes a pre-annexation agreement is negotiated in special emergency sessions at the last minute. If it gets to the last hour it is because the process has not been managed properly. If the language has to January 27, 2005 Jt. Study Session P&Z Commission & GP Update Revision Committee 9 specify a time line so there is an adequate time to make an informed decision by the public, then that is what the public needs. Chair Cox questioned the wording "will strive toward annexing these areas without creating negative impacts to the safety, views, or integrity of existing neighborhoods." How can any annexation have a negative impact on views or the integrity of an existing neighborhood? Mr. Adler used an example of B.P. McGee. The people on Northern Avenue complained that they were going to have their view obstructed. The annexation agreement and translation zoning that followed, and our Town attorney at the time made an interpretation that the conceptual plan could not be altered. As a result the residents had to accept questionable proximity to a commercial development which inadequately addressed some of these issues. Mr. Nodine said the issue wasn't the annexation itself. It was the structure of the pre- annexation agreement that was the problem. • Page 40, 4.1.3 Make the last sentence "The Town reasonably wishes to be satisfied that sufficient demand exists before authorizing higher land use intensity than present zoning permits." Make this policy 4.1.4 and change the rest of the number on page 42 accordingly. Next Steps: There may be an open house late in February. The 60 day review period will start next week and was sent out to about 30 agencies. At the end of the 60 day period comments will have come back, and that would be a good time for the Revision Committee to meet again before getting back with the Planning and Zoning Commission. ADJOURN STUDY SESSION Meeting adjourned at 8:50 p.m. Minutes accepted by the General Plan Update Revision Committee at the April 7, 2005 meeting. Respectfully submitted, Diane Chapman, Recording Secretary