Paul's Note - November 9, 2018

There are always a lot of new development projects going on in Ward 2, which means that many of you have questions about how the process works. While the issues associated with particular developments are different, the process works much the same.

If a property owner has a new use for a particular parcel, and that use is not allowed by its current zoning, they can go through a rezoning process. For example, and this one is probably the most common in our area, let’s say someone wants to build houses on a place that is zoned SR or RX1. Those are both considered “rural” zones that allow for very low density housing. If a developer wants to build more than a handful of houses, then the parcel will have to be rezoned which will require a public process and notification of neighbors.

One thing to keep in mind is that a change in use of a particular property doesn’t need to go through a rezoning process. For example, take a certain property zoned C1, which would be low intensity commercial. For years, it’s a bookstore. The old owner retires and the new owner wants to sell latkas and pierogis. Both of selling books and selling latkas are allowed under C1 zoning, so not only do they not need to go through the rezoning process, but they don’t need to inform neighbors. I wouldn’t get a notice of it either.

By the same token, new construction on an undeveloped parcel wouldn’t go through a public process if the zoning already allows that sort of development there. Just because a parcel doesn’t have a building on it or is in an isolated area doesn’t mean that it can’t have the zoning to allow an apartment complex or shopping mall. It may have been zoned to allow that for decades.

The process starts with a property owner of developer consulting with personnel from Development Services. After an official submittal, the developer has to have a neighborhood meeting. Notices for the meeting have to be mailed out to every property owner within 300 feet of the development. The city provides mailing labels to the developer. Also, notices go out to any neighborhood association within one mile.

The notification rules are the ones I most often get complaints about. A development in a dense area like midtown could have dozens upon dozens of residents in the notification area, but we have neighborhoods in our part of town with large lots and open space so the notifications go out to a much smaller group of residents. The notification rules work that way because of state law, a similar one works for who can file official protests.

After the neighborhood meeting, the proposal goes to the zoning examiner. The zoning examiner is considered “quasi judicial.” The examiner is like a judge, in fact the current one is an attorney. He hears testimony from the developer as well as neighbors. Sometimes, the zoning examiner will continue the hearing and allow the parties to talk on their own, so this part of the process can happen over the course of several weeks.

I will often send staff to zoning examiner hearings so I can get a feel for the testimony. However, I have to be hands off on this part of the process. I will work with neighbors and developers before the hearing, and listen to them after. While the hearing is open, I do not get involved. I don’t want to leave the impression that I can, or will, interfere with the zoning examiner’s process or deliberations.

After that, the zoning examiner has a finding. If he recommends a rezoning, he will often have a set of conditions attached to it, often reflecting concerns of nearby property owners. These can include new height restrictions, preservation of plant life, traffic mitigation or even a color scheme to match the existing neighborhood. The report is submitted to mayor and council, where we have a chance to say yes or no to it.

Whatever the zoning examiner says, it is up to Mayor and Council make the final choice on the rezoning. The Mayor and Council can reject or modify the findings of the examiner, which we have done in the past. Usually, I only will do so if I have heard of new conditions agreed to by the developer and neighbors.

The vote comes after a public hearing. Most of what comes to us is non-controversial, but sometimes it can be a bit heated. Occasionally, we will have to have a “supermajority” of five votes instead of four to pass a rezoning. This happens when 20% of the property owners by lot and 20% of property owners by area within 150 feet of the development (again, by state law) file a protest.

Sometimes, a development requires a change in the neighborhood plan. The process for that is almost identical except it goes to the planning commission rather than the zoning examiner. There is a near identical process for what are called “special exceptions,” which are usually for things like cell phone towers.

I hope that this is a little clearer for you. My office is currently fielding questions on five proposed developments going through the process. Always feel free to call if you have a question.