Many Ways to Weigh-in on “Development”

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Change is inevitable, and healthy growth requires informed citizens. Any member of the public who takes an interest in the physical cultivation of Arizona’s cities should learn its processes. Living in a republic style democracy means people make decisions on your behalf, and in your name, every single day. Still, there’s a lot you can do to effect what gets done, or at least be heard. You can get involved as an individual, as a member of an official committee, or by participating in a local neighborhood association.

When they happen, public hearings and other types of “discretionary approvals” can seem complicated and tedious, to the point of bewilderment for those not familiar with the process. Nonetheless, decisions made by appointed or elected officials become or otherwise enforce the law, and are therefor worthy of public inspection.

The truly best way to learn is to observe or participate in the process first-hand.

As you are about to read, there are numerous ways in which the public can effect private development. Each involve understanding why we bother to pay attention to such things, the processes of law, and the rights of private property owners versus the public-at-large. 

Though lengthy, this article barely scratches the surface of the legalities of land use. It is not intended to be a comprehensive explanation of property rights or regulatory systems – so don’t take anything written here as legal advice – but rather as a spotlight on the interpretive, often fluid nature of Arizona development.

We’ll take it step by step:

  • Introduction: “So many ways to weigh-in on development!”
  • Part A: Perspectives of Development
  • Part B: Public vs. Private Rights
  • Part C: Neighborhood Associations
  • Part D: Village Planning Committees
  • Part E: City Planning Commission
  • Part F: City Council
  • Part G: Special Situations, Staff Interpretations, Use-permits, and Variances
  • Part H: Historical buildings and areas
  • Conclusion: “Show Up or Shut Up!”

Part A – Philosophies Based on Perspectives: The “Highest and Best Use” of land.

Even in the most efficient of systems development is rarely a linear process free of complications or disagreements. Rather, development requires balancing naturally competing physical, economic, and political forces.

Evaluating the value of land is a sensitive discipline that requires identifying the marketable needs of an area, its demands and desires, as well as its challenges, and its existing resources and amenities. Such evaluations require comparing commonalities with other areas, and identifying connections that may may or may not be obvious to end users.

Whereas financiers measure “development” in terms of profit, engineers see calculations of physics. Architects and engineers design buildings that are attractive and functional, while governments strive to ensure they are safe and not unduly burdensome to those nearby. Development is a repeating process of investigation, interpretation, and explanation. 

The economic principal of “scarcity” illuminates the truth that no spot of Earth is exactly the same as any other, so neither will its potential use or value be exactly equal. Businesses may operate on formulae, but responsible development must respect the unique character of individual sites. This is especially true in highly populated areas where many components depends upon others.

Responsible developers execute strategies beyond just building something for its own sake. Success, economic or otherwise, is not achieved with data, money, or law alone. Rather, developers should work to bring each of these pieces together in relative harmony. According the Urban Land Institute (a preeminent development think-tank) the “highest and best use of land” is that which is:

  1. Physically possible (architecture, engineering, & environmental considerations)
  2. Financially feasible (economics & capital)
  3. Politically achievable (legality and community support)
  4. Practically marketable (it serves a demand, even if just to make money.)

Though private profit is not explicitly the purpose of government  – politicians typically avoid public conversations of the value of private property – municipalities nonetheless depend upon profitable businesses. Usually, the relationship between time and profit is inverse for private property owners. That is, the longer a project takes, the less profit will be shared.

That’s the conventional wisdom, anyway. 

Often times, the more public scrutiny a private project receives, the less it seems worth doing to private developers. This is an unfortunate reality of the modern age that often results in unwarranted secrecy by developers, which can then exacerbate further suspicion, scrutiny, or prejudice. It takes more than money or good intentions to succeed in a democracy. In an attempt to clarify this process to the public, and in turn encourage healthy development, this article emphasizes element 3: political perspectives.

Part B – Balancing  Public vs. Private Property Rights in Arizona (“Entitlement” & “Zoning”)

Controlling and profiting from one’s own private property is the foundation of both law and cultural identity in the United States. So, the cultivation of our lands is a sensitive legal balance between freedom, safety, economic and natural sustainability. As both public and private interests change, so do markets, building trends, technology, design aesthetics, safety standards, public perception and even the land itself over time.

The explicit right for government to regulate the use of land resulted over time from legal and legislative proceedings throughout the U.S., mostly in the early part of the twentieth century. Jurisdiction was specifically designated to the states by Congress in the Enabling Acts of 1928 in response to conflicts between corporations and citizens in many U.S. cities. Since then, each state has practiced its further discretion to divide regulatory powers among counties, municipalities, and other special districts.

It’s crucial to understand that the public sometimes has a right to be heard on what other people build around them, though almost never a right to interfere with private property owners directly, nor the decisions of those elected to represent the public in government.

“PUBLIC ENTITLEMENTS”

In Arizona, general land-use regulation is the jurisdiction of city councils and county boards of supervisors for unincorporated areas. Generally, property owners are “entitled” to use property as elected representatives have already voted to explicitly allow, and usually any use that is not explicitly prohibited (often a grey area in itself.)

Those who already live or operate their property in an approved way have rights to continue living or operating their properties without undue disturbance. The scrutiny is therefore placed on the new guy, or whoever wants to make a change to what already exists. Uses that were allowed before a prohibition was passed in law are usually allowed to continue as “non-conforming-uses,” but only for the life of the current use. As soon as that specific use terminates, the property must be brought into conformance. When active uses appear to contradict current zoning, this is most often the reason why.

“ZONING”

Modern zoning ordinances are extremely complex and regulate both general and minute details of development. Codes address not only the use of property, but also the size, height, density, orientation, lot coverage, appearance, parking, safety, and functionality of both internal and external systems, in addition to building codes that are also law.

Day to day, city staffers interpret and enforce zoning regulations by issuing planning, building, and occupancy permits. In effect, they act as decision makers, but the legal  authority remains with elected officials. If a project is a use that conforms to written ordinance, fewer government permissions will be required to proceed. However, If City Staff believe a project deviates from the law as it is written in code, several processes may result which require public input, and approval by the elected representatives.

Remember, it is the choice of the property owner to proceed with public “discretionary approvals.” It is also the option of the property owner to request to be heard, usually first by appointed officials, and then next by elected representatives. Often times these choices are communicated as requirements, but the property owner may also change their plan to fit the law exactly as written. Conformance is not always the most attractive solution, and also why many homes and buildings tend to look similar or mirror each other in design. Public approvals can be very expensive.

Some approvals are pro-forma (a matter of due process) while others can be quite elaborate, requiring multiple presentations, research and debate. Such public hearings are relatively rare in comparison to the total number of approvals issued per day by Staff, nonetheless they occur frequently. Discretionary approvals, in one form or another, are heard by appointed or elected representatives weekly in the City of Phoenix.

Public hearings may result when:

  • There is a proposal to change zoning district designations or other ordinances.
  • A proposed project deviates from zoning or other ordinances as currently written.
  • An owner disagrees with an interpretation of the Zoning Ordinance by City Staff.
  • An owner requests an “adjustment” to, or “variance” from the Zoning Ordinance.
  • A specific use requires case-by-case permission per the Zoning Ordinance.

Suffice it to say, Arizonans have strong interest in educating themselves  before they engage in development actions. In most situations, the local permitting process prevents legal challenges by negotiating with the public or their attorneys about their rights. Negotiation, however, is usually only after applicants have invested significant time, money, and effort to secure ownership of their land or project, and paid application fees. For these reasons, it’s best to consult both public and private professionals before initiating this process.

It cannot be overstated: Owners have a right to reasonable profit from their property, and Arizona law (“Prop. 207”) allows property owners to recover damages if government unduly inhibits a private property owner’s rights. Under these rights (and others), the decisions that are made by municipalities can be appealed to the courts. However, such suits are extremely rare in Arizona because courts generally recognize that primary authority for land use decisions rests with local lawmakers. Effectively, a developer may choose to conform to law as written, attempt to get the law changed, or fight the applicability of the law.

The entire entitlement process operates under this axiom. 

The rest of this article summarizes the processes that occur when Phoenix City Staff, specifically, determine that public discretionary approvals are required for a project, or if a change of zoning is required. Though Phoenix is unique (in Arizona) for its use of a “village planning” system, the design of the process conforms to the same state laws that apply in every other jurisdiction. It may be useful to understand how the nation’s 5th largest city regulates its private development.

Part C – A Solid Foundation for Approvals: Neighborhood Associations

Though rarely an “official party” in any legal decision, the opinion of a registered neighborhood association carries a lot of political weight with the City of Phoenix. If there’s any type of discretionary approval needed, most likely a neighborhood association will be informed. That’s because the City requires property owners to demonstrate an effort to notify those who may be affected by their project, or if there is a proposed change to the zoning law. 

Depending on the scope of the project, the City often allows notification of your neighborhood association in lieu of those required door-to-door in state law. Posting signs for hearings on a specific property are usually required, but these signs can vary in size depending on the scope of the public. Actual notification (person-to-person) is almost never required, as Arizona law recognizes that the public have some responsibility to inform themselves on public legislation.

Developers and their lawyers have different strategies for satisfying the notification requirements. The purpose of these requirements is to provide a forum for those who will be affected by a project to be heard, not to necessarily secure their support. In areas where there is no registered neighborhood association, developers may be able to defer to Home Owners’ Associations or to host neighborhood meetings on their own. 

Note: If few or no individuals write letters, speak in hearings, or contact the City directly, then the decision makers (Council) will most likely defer to the opinions of the registered neighborhood association as a fair representation of all public opinion in the effected area. Without feedback from an association, the City will most likely make a decision based on policy, trends, theory, and what’s worked in the past. To be clear: a neighborhood’s decision to support, oppose, or to take no stance has no legal effect on the City’s development decision itself, but counts for a lot. 

The ultimate authority for development rests with elected public officials. While most Arizona development schemes require elected and appointed officials to consider public opinion, they are not required to obey it. Elected officials have every right to go against popular opinion, in favor of private developers. Only extremely rare situations require neighborhood property owners’ explicit support, and these usually involve potential risks to public health and safety. 

Part D – The Ground Floor of approval: The Village Planning Committee

To navigate development within the huge swath of terrain that is legally “Phoenix,” the City is subdivided into 15 “urban planning villages” that overlap 8 City Council districts, almost all of which are larger than the majority of American cities. Phoenix uses a model that was developed in other states and countries as a way to shape and refine the physical development of the City.

The concept was implemented in the 1980’s when it was recognized that Phoenix lacks a traditional urban core as most American cities. The solution was to create boards of volunteer representatives who live in each area who should be included in the evaluation of public and private proposals in their respective areas.

“Village Committee” members range in number, experience, professions, and training. All must reside within the area they represent. These are most often property owners who have demonstrated active interest in their community, or know people in City government. They are not allowed to be actively employed by the City, though some serve on multiple committees.

The “Village Meeting” is intended to flesh out public concerns that may have been discovered during neighborhood meetings or conversations with local residents or business owners. The purpose is to determine possible solutions before projects are considered by city-wide representatives. Village meetings are usually held in the evening once a month in a community room within the respective village.

City Staff report their investigations of the applications, findings of fact, and interpretation of zoning laws to the Village Committee. The private property owners (“developers”) also often  explain their own research, interpretation, and design. Often developers are represented by lawyers, architects, or other members of their design teams. Like neighborhood associations, Village level approval is not legally binding in itself, but support is almost politically essential in order to obtain further discretionary approvals.

By law, any member of the public has a right to speak to Village Committee members before they vote their recommendations. Public statements may become part of the public record in minutes, transcripts, or recordings if any are made. Staff and Committee members will most likely ask speakers to provide their identification information and address, however technically, the public is not required to do so per law. Remaining anonymous is an individual’s right, even when speaking publicly, but doing so may also distract or weigh against a speaker’s credibility.

If recommended for approval by the Village Committee without significant objection, the recommendation will most likely be – but is not always – accepted by the Phoenix Planning Commission and passed to the City Council to be approved without further discussion. If significant concerns arise at any time in this process, however, or if the committee deems it prudent, public hearings may be planned for the next two levels of approval.

Part E – Climbing up stairs: The Planning Commission

As with the Village Planning Committee, these unpaid volunteers are appointed by the Mayor and Council. However, this 9-member board represents residents from different areas of the City, and different public interests such as public safety and economic development. Several “Commission” Members have previous experience at the Village level, but none are required to be experts in any given discipline. One of these nine people represents all the Villages as a whole, and another all the Council districts as a whole. 

This formal hearing is held once a month, and almost always occurs in the City Council Chambers during the evening. The Commission will consider accepting or rejecting the recommendations for or against any project or law change that was presented to the Village Committee. They are not required to conform to the Village recommendation, and the Commission can recommended or stipulate changes to the project. The Commission may also send it back for further consideration to Staff or Village before issuing its own recommendation. As with the Village Committee, these assessments do not become law in themselves, but are critical to securing final support by the elected officials.

Part F – The Top Floor: City Council

The vast majority of project specific discretionary approvals will be voted upon without public discussion by Council Members at a regular City Council Meeting, during the work day. By the time an item has been listed on a Council agenda, it has been studied at the very least by City Staff, The Village Committee, and the Planning Commission, if not also special committees, City department heads, and Council advisors. There may be an offer for discussion by the Council Member in whose district the project resides, but they often choose to waive such an offer.

HOWEVER, it takes only one member of the public to request a formal public hearing during a Council Meeting on any project scheduled for a vote. If a member of the public files a formal “appeal” of the decision issued by the citywide Planning Commission, or a formal request for a hearing, then time must be reserved for discussion on that specific proposal in front of the City Council.

Furthermore, any member of the public has the right to address the City Council on any matter at any formal meeting, before any voting takes place, during the Open Call to the Audience. An individual must fill out a speaker card and submit it to the City Clerk (or usually any Staff) and is usually allowed up to three minutes to address the Council. The Mayor usually leads this part of the meeting, but neither the Mayor nor any Council Member may discuss or respond to the member of the public directly on any issue that is raised. Per law, the Council is not allowed to respond to a speaker during the Open Call. It for the City government to listen to the public.

In Arizona, the city council (or county board) has the final say regarding projects within their jurisdiction. Even when special districts are created (Rio Salado, Rio Nuevo, areas surrounding the stadiums, casinos, or Grand Canyon) authority to create discretionary approval boards remains with municipal level elected officials.

Municipal decisions can be appealed to each county’s superior court, but plaintiffs in such cases must prove that legal errors or gross deviation in the established processes occurred. Plaintiffs can also allege a decision occurred without correct jurisdiction, that there was unfair bias or corruption, or that a zoning regulation itself causes burdens or damage to a property owner that violates their rights. 

These cases are difficult to prove.

Courts typically defer to the legislative intent of those elected by the public, and prevailing in a zoning lawsuit does not guarantee a property owner will receive the discretionary approvals they want. Rather, a courtroom “win” may result in initiating the public approval process a second time, effectively a re-do. Such could be extremely time consuming and expensive. So, while fascinating, zoning court cases are relatively rare in Arizona.

Part G – Special Situations: “Interpretations, Use Permits and Variances

Given the scope and speed by which Phoenix has developed over the last century, many projects neither conform to the law as written, nor necessarily require a change of zoning. If Staff believe a general type of use may fit within a proscribed zone, but the specific way that use will be carried out maybe conflicts with the code or otherwise presents a concern, an interpretation may be requested by a City Staff Zoning Administrator. The Administrator will issue an interpretation of what steps, if any, are required to proceed in conformance with the existing law. Such recommendations may be appealed to City Hearing Officers for further interpretation.

“CONDITIONAL USE” PERMITS:

If Staff or a Zoning Administrator determine that a proposed use does not conform to the zoning law as written, the full approval process explained in the previous sections will most likely occur. However, there are several adjacent processes that may also be utilized to determine if a specific use that is approved merely creates an adverse condition to the public.

A perfect example is outdoor music played at restaurants in residential neighborhoods. Such is allowed in many zones, but the Zoning Ordinance also may specifically require a “conditional use permit” on a case-by-case basis. While the use itself is not a deviation from the zoning law, such permits still require notification of those who live and work nearby (the range depends on the scope of the project) and public input may be required. 

In Phoenix, an appointed and unpaid Hearing Officer usually presides over these types of hearings which are usually held once a week at City Hall during the work day. The Hearing Officer usually hears multiple proposals over several hours. Applicants, their design staff, and often their attorneys present the plans and information, and listen to public comment.

Permits may be issued outright, or on the condition the property complies with certain stipulations. In the case of restaurants and music, it is not uncommon for limits to be placed on the decibel level of audio, and the times it can be played. If repeated violations of these conditions occur, the City may pull the permit to play music without violating the property owners “entitlement” rights to run a restaurant on his or her property in that specific zone. Appeals of these decisions can be made directly to the City Council.

“SPECIAL USE” PERMITS:

There are some uses that are explicitly allowed in zoning, but by default require “special” public approval on a case by case basis. Perfect examples include storage facilities and auto shops in non-industrial areas. Though commonplace in urban environments, and often quite convenient in commercial and residential areas, these uses introduce many activities that may annoy or inconvenience residents and other businesses.

Storage facilities, for example, may invite many people who may have no other business or purpose in an area, and auto shops may present significant noise and hazards if not run properly. Even though such a use may not require a full zoning change, an application for a “special use” permit requires notification of and a hearing of the public in the affected area. These permits may be issued during the same public hearing as conditional use permits, and may also be appealed directly to the City Council.

“VARIANCES”:

If an applicant can demonstrate the property itself contains specific, unique conditions that prevent it from conforming to the Zoning Ordinance, and also prevent the property owner from enjoying reasonable (and profitable) use of the land, the applicant may be awarded a “zoning variance” by a Zoning Administrator or Hearing Officer. 

This is a relatively rare method by which the City can permit property owners to continue uses that violate the zoning law, but for conditions beyond their control. The situation could not have been created by the applicant property owner, and the applicant must show how the unusual situation or property itself is unlike any other in the current zoning district. In effect, the applicant for a variance must prove the situation is not their fault, nor can they fix it. 

Perhaps the most difficult criterion to prove, the applicant must also demonstrate the property cannot reasonably be enjoyed by any other use that is already allowed in the current zoning. Owners have a responsibility to research entitlements before they purchase, so this is often why many properties remain vacant. Ignorance of the zoning limitations is not justification for a variance. Finally, the applicant must prove that deviation from the Zoning Ordinance will not adversely affect the surrounding properties or property owners. While not legally required, actual community support is almost essential.  

In Phoenix, appeals from a variance decision made by a Zoning Administrator or Hearing Officer may be made the Board of Adjustment, a 7-member panel of unpaid residents who meet regularly at City Hall, usually during the work day. If still displeased by their decision, the applicant for a zoning variance can then appeal directly to Maricopa County Superior Court. There, they will have to demonstrate either error in process, or that a law unfairly inhibits use of their property. In Phoenix, a zoning “variance” bypasses the discretion of the City Council.

Part H – Historical Areas and Structures: Historic Preservation Commission

Except in extreme cases, it is almost unheard of for Arizona governments to intercede against the will of a private property owner who wants to demolish a structure. It is therefor vital that owners initiate historic preservation protections on their own property before beloved buildings or lands are demolished, and for communities to work together identify which structures and areas they wish to preserve.

Arizona’s historic preservation scheme requires a lot of citizen participation, and in many ways mirrors the federal system. Both are designed to identify areas or structures whose character or history are cultural assets to the municipality, state, or the nation.

An Arizona municipality (operating through extension of the State’s jurisdiction to regulate land use) may not prohibit demolition of any structure that is not already on the National Register of Historic Places, or deemed a Historic Landmark. Both are federal designations whose processes are not discussed in this section. However, an Arizona municipality can delay demolition of any private structure deemed “of historic value” for up to one year, or up to three years if said structure is already within a “historic preservation” zone.

New Phoenix ordinances require an automatic 30 day delay of demolition for properties 50 years or older. Applicants must post public notices no less than 30 days prior to demolition, and a hearing can be requested by any member of the public within that time. These hearings are usually held weekly during the work day at City Hall. A Hearing Officer will determine if a subject property may meet the criteria established above, or if it should be considered for the Phoenix Historic Preservation Register.

If ultimately listed on the Register, the demolition may be delayed up to one year while the owner works with the Phoenix Historic Preservation Office to seek alternatives to demolition. If the property is within a “historic property” zoning designation, however, that delay may be extended up to three years.

While historic designations may make it difficult for private owners to demolish or alter their own properties, they may also become eligible for local, state, and federal tax incentives, as well as grants and other public and private funds. As a matter of policy, The City of Phoenix will consider a historic designation for structures or areas that are:

  1. At least fifty (50) years old and
  2. Historically significant and
  3. Posses “historic integrity.”

“Historical significance” is subjective and varies widely. Properties themselves may be unremarkable except they are the location of a historically significant event, or conversely demonstrate some visual or engineering styles or methods unique to a specific era. A structure may itself educate or inform the general public in some unique or valuable way.

In any case, the applicant for historic legal protection (usually but not always the property owner) must prove historical significance with evidence (often expert opinions), and also that the significance is likely to continue if protected. It does little good to protect a decrepit building, simply because something important happened there. The physical condition of a structure often factors in determining its “historical integrity” and properties that have been altered from their original condition rarely receive designation.

The City of Phoenix Historic Preservation Office (Staff) investigate, suggest, and interpret these criteria to the Phoenix Historic Preservation Commission, which is a nine-member volunteer board who in turn make a recommendation to the City Council (elected officials). The Council will vote in favor or against the following actions: 1) delay the demolition of buildings that are believed to be architecturally or historically significant; 2) create a historic district overlay in a specific area. Both of these are public zoning decisions that must consider public opinion given at public hearings. Neighborhood and Village Boards may be involved.  

The City does not have the legal authority to prevent a demolition indefinitely, and the applicant or owner may appeal a decision of a hearing officer to the Phoenix Historic Preservation Commission. The Commission’s decision can be further appealed to the Phoenix City Council, who have final municipal authority over a decision to delay or allow demolition. A property owner may also file for emergency relief in Superior Court, and ultimately sue the City for damages, though this is extremely rare.

“HISTORIC ZONES”

Many owners relish the blue street signs that indicate their neighborhood has special significance. However, such designations do not come easily and must be achieved through a full zoning change process. In Phoenix’s system, “H.P.” and “H.P. – L” designations indicate districts in which alteration of any structure requires special review by the Historic Preservation Office, in addition to approval through the regular zoning change and development review processes.

Though “H.P.” zoning often enables property owners to apply for financial and tax incentives, it also gives jurisdiction to the H.P. Officer, the H.P. Commission, and ultimately the City Council to determine a property’s appearance or how it may be used, above and beyond regular zoning. Most times, H.P. districts will require support by all or nearly all property owners within the proposed district. An “H.P. – Landmark” district may even prohibit all changes whatsoever to a structure that are not functionally essential.

As “H.P.” designations are law, an applicant must notify registered effected property owners, registered neighborhood associations (if any), and present to the Village Planning Committee similar to other zoning changes. However, instead of the citywide Planning Commission, “historic” applicants must present to the Phoenix Historic Preservation Commission. As with other zoning matters, the decisions of these boards are not legally binding but almost essential to secure the ultimate Council support.

It’s also important to note that The City of Phoenix does not issue “landmark” status for specific buildings as do the State of Arizona and Federal Government. Such a designation can be made through the Arizona State Historic Preservation Office, which will research and direct further approval requirements depending on the municipality.

Conclusion: Show Up or Shut Up! 

Arizona is considered by many to be a strong private property rights state. The most direct way for you to influence the physical development of your community is by purchasing or investing in private property. A second way to effect what happens in your community is to become involved via public review. Ask questions and voice your thoughts in official public forums as outlined above, or through social and mass medias.

A third, perhaps more subtle way to effect the physique of your community is simply to pay attention in person. Go to meetings! Even if just down the street at your neighborhood association, those who represent you at any level tend to pay closer attention to what they decide in your name, when you show that you care!

…and as always, do your homework and vote for leaders who use law to educate.

*  Brian Mori is an Arizona Realtor (R) who holds a Masters Degree in Real Estate Development from the W.P. Carey School of Business. He is a Phoenix native and investor. He is also a world traveler, international teacher, and tries very hard to be an ethical journalist and publisher. He can be reached at 602-575-1170 or by e-mailing thismelroselife@gmail.com, or bmori.realestate@gmail.com.