Our broken planning system strikes again

First of all I have to give credit to outstanding members of the Planning & Zoning Commission and the city attorney’s office for finding and addressing this failure. However this is yet another failure. This is the latest error in a disastrous planning process that leaves developers and neighborhoods exposed, delivers vast inconsistencies, and culminated in the city council choosing to break the law in order to approve the Oliver development project.

At Wednesday’s CPZC meeting, I was working off of a hard copy version of the LDM that is supplied to my office by the Planning Department.  The front cover of my version states “Updated February 5, 2014.”  I also have access to an electronic version of the LDM that is also supplied to my office by the Planning Department.  The electronic version states it is valid as of 1/22/14.  Both the hard copy and the electronic version of 62.901 reflect the following language:

62.901 Purposes: The further specific purposes and conditions supporting the establishment

of a special district are:

A: The existence of a special and substantial public interest in protecting the existing

or proposed character of an area or unique geological, ecological, archeological or

social characteristics of an area; or

B: The existence of a special and substantial public interest in protecting areas

surrounding an individual building, group of buildings or man-made features and

their environs; and

C: The need to establish modifications to or to supplement existing zoning regulations

to accomplish a special public purpose that is supported by the goals and policies

of the Comprehensive Plan and that support pedestrian, bicycle, and transit

friendly design.

In reliance upon these resources, I responded to your question by opining that one must satisfy A or B and C in order to obtain approval of a Special District application.  The Commission concluded the applicant failed to meet this burden and, as a result, recommended denial of the Special District application.

After receiving your message and the Planning Department’s different version of this ordinance, I checked with the City Clerk to see how the Council ordinance adopting 62.901 actually reads.  Attached you will find the relevant pages of Ordinance No. 2785 as adopted on December 19, 1991.  If you turn to the second page of the attachment, you will find 62.901 as originally adopted by the Council.  In comparing the original version of 62.901 with the version that was supplied to me by the Planning Department, you will find a critical discrepancy.  The word “and” that appears after the semi-colon in (B) is in error.  That word should be “or.

I checked my computer system to see if 62.901 has been amended since the time of its original adoption.  The City Clerk also checked to see if this ordinance had been amended.  We could not find any subsequent amendment to 62.901.

Bottom line:  The staff report’s version of 62.901 presented at Wednesday’s CPZC meeting was accurate.  My opinion in response to your question was inaccurate as it was based on an inaccurate hard copy version and electronic version of 62.901 provided to us by the Planning Department.

Where do we go from here?

As I was present for the discussion of this matter, I realize the importance of “and” and “or” in the Commission’s discussion and recommendation concerning the Special District application.  The Commission meets again on June 10 and the Special District matter will come before the Council on June 15.  I would suggest that this issue appear on the June 10 CPZC agenda and that the Commission decide whether to ask the Council to remand the matter back to the Commission so that the Commission can revisit its recommendation in light of the clarification as to the correct wording of 62.901.  If the Commission were to make such a request and the Council were to grant such a request, the only issue that would come back to the Commission would be its recommendation.  There would not be another public hearing.  The hearing has already occurred.  Instead, only the recommendation that resulted from the public hearing would be remanded to the Commission.

If this matter is remanded to the Commission, the Planning Department will need to extend the 60-day shot clock to 120 days.

I did check the online version of the LDM available through the City’s website.  The online version of the LDM’s version of 62.901 is the same as my hard copy and electronic version.  In other words, in the LDM online version the word “and” appears where the word “or” should appear.

Finally, I would ask the Planning Department to provide this office with an updated hard copy and electronic copy of the LDM with a corrected version of 62.901.  The Planning Department may also want to update the online version of the LDM with a corrected version of 62.901.

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