For nearly 30 years, the pages of City & Town have included articles by Jim von Tungeln. Over that span, Jim has shared planning wisdom collected from a 50-plus year career in a colorful style unique to him with fictional characters like Mayor Furlow Thompson of Pot Luck. It has been an immense benefit for so many public officials across the state. I have personally benefited from that wisdom, leading to where and who I am today both personally and professionally. It is a great honor to be able to follow Jim’s footsteps with the privilege of contributing my thoughts to the pages of this publication.
A common developer question heard in city halls across Arkansas is, “Now will this require planning commission or city council approval?” Developers want to determine what kind of gauntlet they may be about to face and what risks to project approval might exist? Will the approval process be predictable enough to make an investment?
For developers, a city’s development requirements are often a secondary concern to the issue of uncertainty in the development approval process. They’ll often directly say, “I’m not so much concerned about what you require, assuming everyone has to meet those requirements. I just don’t want to spend a lot of money only to get turned down because of the neighbors.” This is for good reason. Approvals for development often require plans to be drawn by numerous design professionals. There is the surveyor for the boundary survey and plat. There’s the engineer for developing the civil engineering plans for drainage, streets and utilities. Don’t forget the architect for developing blueprints for the structure. The list goes on.
All these design professionals and plans cost money, and a lot of it. That said, they are a necessary part of the process. Where would one want a developer to skimp? Not having an accurate survey to ensure the development isn’t on someone else’s property? Not properly designing the streets so that the city and taxpayers become burdened with fixing a street as soon as it is turned over to the city? Not adequately designing a structure so that it potentially falls in on its occupants or catches fire? No one, including the developer, wants any of those things.
Development plans are necessary. Code requirements must be met. Protecting life, health and safety is a fundamental requirement. This is where zoning for predictability enters the picture. Predictability means ensuring your regulations are structured to properly protect health, safety and welfare while also allowing for public input and providing a fair process for developers. It means reducing the number of places where unforeseen factors can affect approvals. Here are some places to start.
Unnecessary public hearings
For all the right reasons, public officials often want to make sure residents are heard when a proposed development might impact them. This is why statutory public hearing requirements exist. However, many codes go well beyond the state’s requirements. These codes often require public hearings for administrative elements like site plan and subdivision approvals, not just legislative elements like rezonings. Such requirements reduce predictability. Rezoning a property is about determining what land uses are allowed, whether it’s for a house or a hot dog stand. Once that is determined, development rights are established. The site plans and subdivisions that follow help ensure the development follows the rules. Allowing public hearings on these items may feel proper, but they can increase the chance that an angry crowd influences decision making at the wrong point in the process. Put another way, those public hearings can turn the process from ensuring compliance with codes to ensuring the neighborhood is happy.
Standards of approval
Developers often want to know what they have to do to get to “yes.” In other words, “How do I make the planning commission or city council like my project?” The idea that a project should be “liked” is often a result of either a lack of understanding of the approval process or a nonfunctional process itself. Planning commissions and councils don’t always have proper guardrails to help them determine when a project should be approved or denied. This means approval can again fall back on whether or not the neighborhood is happy with the project.
Establishing standards of approval outlines exactly what is required so that the developer, the planning commission and the city council know what is expected for granting approval. Standards should vary based on application type. However, they can require maintaining consistency with the city’s comprehensive plan, meeting all code requirements or obtaining variances/waivers before approval, and mitigating any negative impacts on adjacent properties. The more clear and objective the standards are, the better.
Standardized use requirements
Conditional use permits are a planning commission and city council favorite. They are the ultimate tool for flexibility. In essence, a conditional use permit allows the governing body to impose certain conditions on a use to obtain approval. By now you might be able to guess the reason why: yes, keeping the neighborhood happy. Conditional uses have their place, especially for rare, high-impact uses or those types of uses that may be appropriate in some locations and not others. They can also be overused.
An alternative can be predefining conditions for would-be conditional uses. This means setting the exact standards the use in question is required to meet. An easy approach is to analyze all the approved conditional use permits over the last five to 10 years. Where do patterns emerge? What are common conditions of approval? From there, consider making those common conditions of approval the predefined standard. This approach can save lots of headaches in the approval process for the developer, planning commission and city council.
Beyond these examples, there are many other ways to make the development approval process more predictable. A commitment by everyone involved to ensure processes are fair and regulations are followed can go a long way. We’ll never be perfect, but that shouldn’t keep us from striving to be better.
