Frank Cassidy & Andrew McGuire - PowerPoint Presentation

Slide1

Frank Cassidy & Andrew McGuire2016 ACAA Summer Conference

ACAA Case StudiesSlide2

Scenario 1: Snake in the weeds

Developer owns 20-acre site zoned SFR (4 DU/AC); seeks rezoning to allow 360 apartments (18 DU/AC)

Staff recommends approval subject to a condition requiring construction of a

decel

lane that is required by the traffic studies; the catch: there is an

SRP tower encroaching into City ROW that must be moved to construct decel laneDeveloper fights staff on the condition, argues SRP tower makes the decel lane an unfair burden for the apartment complex, but ultimately accepts the condition of rezoningThe City Council Rezones the property subject to the rezoning condition, and developer says nothing about the condition at the rezoning hearingSlide3

Scenario 1: Snake in the weeds

31 days after the rezoning is approved, developer sells the property with a clause requiring the developer to pay for the tower relocation if the new buyer is forced to move it to get permits

City staff refuses to issue permits for the apartment project unless and until the

decel

lane is built (and the tower moved)

Developer sues the city for an illegal exactionThis happened prior to Prop 207; would a 207 waiver save the City from the taking (unconstitutional exaction) claim?Don’t forget the extremely broad Koontz language; Court would not distinguish cases where the City could choose not to grant the “benefit”Slide4

Scenario 2: Translational zoning

Developer owns a 40-acre parcel zoned “CB-2 General Business zone” in Pima County

The property owner signs an annexation petition for Marana to annex

the property

Marana’s most similar zoning category is “VC Village Commercial”

Marana VC zoning doesn’t allow apartments and hotels; County CB-2 zoning doesMarana adopts annexation ordinance including original Marana zoning of VCAfter annexation is effective, developer submits a development plan for a hotelSlide5

Scenario 3: Granny-flat variance

John Smith owns a home on one acre in a zone where the minimum lot size is 36,000 sf

The zoning allows only a single dwelling unit, and prohibits bedrooms or cooking facilities in any building other than the primary structure (i.e., the home)

Smith requests a variance for an accessory building with a bedroom and a small kitchen for his ailing 88-year old mother

Nobody appears in opposition to the variance, and the board of adjustment passes a motion to approve itSlide6

Scenario 3: Granny-flat variance

After the Board of Adjustment meeting adjourns, four of the five members remain in their seats, chatting

The Board’s Chair turns to you and says the applicant is the brother of the Board Member who is no longer in the meeting room

One of the other Board members says to the rest: “We shouldn’t have granted that variance. Since enough of us are still here, let’s reopen the meeting and fix our mistake”Slide7

Scenario 4: Major routes dedication

Developer owns a 160-acre parcel along 124

th

St, a two-lane road in a 60-foot right-of-way

The City’s “Major Streets & Routes Map” (incorporated into the general plan) shows 124

th Street as a future major arterial six-lane roadway in a 250-foot right-of-wayDeveloper seeks to rezone the property from 1RAC to 2RACThe rezoning is approved, subject to a condition requiring Developer to dedicate upon demand an additional 95-foot strip of land along 124th Street—the ultimate half right-of-way widthSlide8

Scenario 4: Major routes dedication

18 months after the rezoning is approved, City demands Developer’s dedication of the

95-foot strip of right-of-way

for its 124

th

Street projectDeveloper is not yet ready to develop and refuses to make the dedicationCity engineers insist upon moving forward with the projectHow do you get the property?Slide9

Scenario 5: Administrative zoning relief

City establishes an administrative process allowing the Planning Director to issue building height and setback variances in certain circumstances

Landowner requests a setback variance and contends that the circumstances meet the requirements of the administrative process

The Planning Director disagrees and refuses to grant the variance

Landowner files a lawsuit challenging the Planning Director’s decisionSlide10

Scenario 6: Neighborhood cell tower

Provider files an application for a 180-foot communications tower in a residential area

City’s zoning code allows towers upon City Council issuance of a

C.U.P

.

The C.U.P. is in the discretion of the City Council—the zoning code lists no standardsProvider submits technical reports showing a service gap without this towerHOA holds a meeting to discuss the HOA’s position; four City Council members (of seven) attendHOA President attends Council meeting re C.U.P.; submits HOA’s

position that the tower will cause cancer and reduce the value of homes in the areaSlide11

Scenario 7: Rezoning violates CC&Rs

Developer seeks rezoning of 40 acres from one home per 3.3 acres to one home per acre

Neighboring property owners attend the Council’s hearing on the rezoning, and present evidence that Developer’s 40-acre parcel is included in

CC&R

s

that restrict development to one home per 3.3 acres The City approves the rezoning despite the neighboring property owners’ objectionsAfter the rezoning is approved, the local newspaper reports that Developer owes a large sum of money to one of the council members who voted for the rezoningSlide12

Scenario 8: Church Daycare

First Church is a well established local church attended by four of the City’s seven Council members

First Church would like to establish a daycare that would--

operate seven days a week

be available to the public at large (not limited to church members)

Not require staff to be church membersInclude mealtime prayers but not involve any other religious study or trainingSlide13

Scenario 8: Church Daycare

First Church is located in a zone that permits single family residences and churches, but not daycare or commercial uses

First Church is in financial duress and argues the daycare is critical to its fiscal health

First Church submits an application for permits for the daycare