We’ve hit the zones, talked design review, design standards, and covered things like incentive zoning. But how does the City government actually make changes to the code and grant permits for new developments? How does someone trying to “do something” start to get into the process? The last subtitle of the code, subtitle IV, lays out the most important components for how the City grapples with the complicated of business of implementing the code. The Master Use Permit process and the “Land use Decision Framework” that supports it is how the City “does land use.”
The land use decision framework is premised, it seems, on the idea that there is a gradation of controversy about land use decisions. Put another way, the framework tries to match process with complexity both in terms of the technical aspects of the decision being made and the impact that it will have. As complexity and impact increase so does the amount of process and public involvement. By the time we get to the top of that scale, the Council is making a decision themselves through legislation requiring the approval of the Mayor. At the bottom of that scale, the Director of the Department of Planning and Development is making an unappealable decision.
Land use decisions are classified into five (5) categories based on the amount of discretion and level of impact associated with each decision. Procedures for the five (5) different categories are distinguished according to who makes the decision, the type and amount of public notice required, and whether appeal opportunities are provided. Land use decisions are categorized by type in Exhibit A 23.76.004.
The Master Use Permit, or MUP as it is commonly called, is a consolidation of all the various elements of a new development that have to be reviewed and permitted. These fall into Type I and Type II categories. I’m not a developer so I don’t have any good examples, but just think about it for a minute. Even a straightforward development project might trigger a bunch of different things that needed approval from DPD. Imagine if you have to adjust the property line, or deal with sidewalk replacement or something else that is part of construction. The MUP puts all that together and processes it all at once. You’d still have to deal with other departments on traffic and utilities, however
Type III decisions are made by the Hearing Examiner, a kind of referee in the the land use process whose decisions are final. Subdivisions have to go through this process. If you have a piece of property you are subdividing on and building on, you’d probably end up in a Type I, II, and III situation with a MUP. The framework has a kind of Matryoshka Doll set up, where each piece can kind of fit into the other one. This isn’t the greatest graphic, but it will have to do. It’s from a Client Assistance Memo on the MUP process.
Type IV and V decisions can include MUP but these decisions are, as I suggested earlier, far more complicated and usually involve matters of policy and therefore are reserved for the City Council. Type IV fall into a category called “quasi-judicial.” That means the Council is supposed to act like an objective judge of the merits of something like a rezone.
I need to do more work on the quasi-judicial process, but simply put it’s all about rezone requests. One can understand why it might be important to shield Councilmembers from overt lobbying for a rezone. The argument, I think, is that otherwise Councilmembers would susceptible to pressure to go one way or another based on donations or threats or whatever. Here’s something that lots of project proponents and opponents would probably agree on: it doesn’t really work.
Councilmembers, like judges, are human beings. But unlike judges reviewing a particular case, when they review a rezone request Councilmembers are making a policy decision. I would suggest it is different because even though people can’t lobby councilmembers one way or another, Councilmembers know the politics of their decision. Elected judges can have this problem too, but if they lean one way or another their decision can be reviewed by a higher court. Council decisions are basically final. While one might think this would lead to boldness, it leads, I think, to even more hesitation. But like I said, I am going to delve more deeply.
Type V decisions fall into the category of pure policy. Councilmembers are looking at what would constitute good land use policy and acting more or less on their own to make changes to the code. Obviously this doesn’t happen in a vacuum. In Roosevelt, for example, the neighborhood has been working on a set of land use recommendations for the neighborhood and a developer is asking for a specific zoning change. The first is a Type V decision–or a legislative rezone–and the second is a Type IV decision–what is usually called a contract rezone.
My plan is to go a bit more deeply into Type IV and V decisions. I am also curious about the Hearing Examiner. But from my own experience watching the sausage machine and my preliminary reading of the code is that a project that involves a rezone and new development could likely involve Type I, II, III and IV decisions. Generally speaking, the closer a project stays to Type I and II the easier it is but as a project requires changes to the code things get more complex. Part of the difference is between doing what the code already allows and getting a permit and running into the fact that the code can’t conceive of every possibility.
The simplest example of that, of course, is a rezone. I might purchase a piece of property with the idea of developing it but, if there is demand, I might want to get more capacity. Because that is essentially expanding what is called my “entitlement,” that is what I am entitled to do under the existing code, it becomes a much deeper issue of what should the basis of the expansion be. Why should I get it while others can’t? If I get the chance for an additional 100 units, why can’t the guy 6 blocks away get the same thing. Anyway, I won’t get too philosophical yet. And if I blew something here, please let me know in the comments.