Sunday, July 20, 2014

Ten Things

A result of Grow Raleigh Great's ongoing meetings with  the Comprehensive Planning Committee and Planning Staff has been the drafting of an initial list of ten issues with the UDO.  Here is that list along with commentary by planning staff regarding each item.  Initial comments by Grow Raleigh Great are given in blue italics:


NX is a zoning district for neighborhood centers and is referred to as the Neighborhood Mixed Use zoning district.

CX is  a zoning district for commercial centers and is referred to as the Commercial Mixed Use zoning district.

Neighborhood Mixed Use and Community Mixed Use are corresponding terms found in the Comprehensive Plan.  Often these will be abbreviated as NMU and CMU.  Admittedly the similarity of these terms can be confusing.  Just remember that NX and CX are zoning districts and ultimately determine what can and cannot be built.  NMU and CMU are categories within the Comprehensive Plan.

1. There are uses allowed in CX that are not allowed in SC.

The CX district was designed to be a comparative to the Shopping Center zoning district. A detailed list of permitted uses is attached to this memo. These are both primarily commercial zoning districts. In general, the list of permitted uses is very similar between SC and CX. The only uses that are permitted in CX that were not previously permitted in SC are: Boardinghouses, Type A Emergency Shelters (special use permit required) and Bed & Breakfast facilities. Repair of commercial vehicles was previously permitted in SC; this use is not permitted in CX.

2. In doing the remapping, parcels were bumped to higher zoning districts to avoid nonconformity. Conformity rather than intensity drove that decision and creates intensity issues.

Staff placed a higher priority on providing a zoning district that permitted an existing use rather than implementing the future land use map and creating a non-conformity. There are severe consequences to creating a non-conformity – uses cannot be expanded and structures can only be improved at a rate not to exceed 15 percent of the tax value per year. Further, it can make it more difficult to insure the property.

Staff has been extremely reluctant to remove an existing entitlement for a use on the ground only to implement policy, and without public input. The Planning Commission can recommend, and the City Council can alter, the zoning map through the public review process.

The Council may wish to direct the Planning Commission to review the application of NX zoning on the proposed zoning map in greater detail as a part of their review. Staff can provide more detailed background information regarding the replacement of CX with NX zoning for specific properties as part of that review.

Another solution to this issue is to provide more granularity in zoning by providing more zoning districts.  Grow Raleigh Great notes that many properties designated as Neighborhood Mixed Use have been mapped to CX.  In general, the properties designated as Neighborhood Mixed Use (NMU) on the Future Land Use Map (FLUM) that have been mapped to CX are large shopping centers.  The properties designated as NMU on the FLUM that have been mapped to NX are small neighborhood centers.  Grow Raleigh Great provided examples of each during our meetings with the Comprehensive Planning Committee.

CX is a zoning district that should be reserved for very large commercial centers such as Cameron Village which can be 400,000 square feet in size.  Grow  Raleigh Great supports three zoning districts:  NX for small neighborhood centers with up to 30,000 square feet per store; CX Small for commercial centers with stores greater than 30,000 square feet; and CX Large for very large commercial centers such as Cameron Village. 

With the current zoning districts of NX and CX, any size retail store can be built in either district providing the exact same services except that pawn shops are excluded from NX.  The only other restriction on NX is that it is limited to 10 acres.  However Grow Raleigh Great notes that it would be quite feasible to build a Best Buy, Target, Walmart, BJ's, etc in an NX district.  Grow Raleigh Great argues that such developments are not appropriate for neighborhoods and must be located in appropriate commercial centers.

3. Putting CX in NMU can lead to spot zoning since there is no CX minimum parcel size.

Mapping CX in areas designated for NMU will not necessarily create a spot zoning situation. Spot zoning is the act of zoning a particular property in a manner that is inconsistent with similarly-situated properties. Much of the CX zoning is located adjacent to major thoroughfares or arterials.

During the drafting of the UDO, a deliberate decision was made not to specify minimum parcel sizes in mixed-use districts for General and Mixed-Use Buildings (minimums are specified for other building types). The CX zoning district will be used in both urban and suburban settings. The introduction of a minimum parcel size for the CX district could create a situation where the IX or DX district must be used to accommodate a specific use that would otherwise be allowed in the CX district.

Regardless of any minimum parcel size requirement, the possibility for spot zoning would still be present. The City Council has the responsibility to refrain from spot zoning, and as the legal definition of spot zoning is complex and determined by case law, guidance from the City Attorney should be sought whenever this question arises.

4. UDO language does not adequately reflect the intent of the Comprehensive Plan.

Staff does not agree with this point, but understands the intent of the Committee. Issues raised to date include a lack of definitions in the Comprehensive Plan and the thought that grocery anchored shopping centers will not promote walkability. With or without Floor Area Ratio (FAR) caps, development size and scale significantly depends on parcel size. If a developer can acquire large contiguous parcels, a larger development would be allowed. This is no different than the previous zoning categories in the Part 10 code, save the Buffer Commercial category. As staff previously presented, the Buffer Commercial category was seldom used, and many of the parcels mapped with this district were either vacant or used for residential purposes.

If the Council so directs, staff can propose maximum square footage for certain uses within the NX zoning district. As has previously been mentioned, this will likely lead to more conditional use zoning requests to the CX category. In addition, a simple cap on floor area will have little impact on small sites, and a more significant impact on large sites.

From a walkability standpoint, the frontages and other standards in the UDO address pedestrian connections. The urban and hybrid frontages will require that buildings be located within a certain distance from the right-of-way; Article 8 of the UDO requires a direct pedestrian connection from each building entrance; and certain frontages require street-facing entrances. These standards, in conjunction with the new maximum block perimeter standards, go much further to institute safe, direct and secure pedestrian connections than any previous zoning code for the City of Raleigh.

The Comprehensive Plan is quite clear that Neighborhood Mixed Use is intended for small, walkable, neighborhood oriented districts with service areas of one mile or less.  Small does not mean allowing the construction of any size building but rather construction of buildings that are to the scale of the neighborhood to be serviced.  Left without changes, Neighborhood Mixed Use areas can become the homes of more big box stores that bring all their associated traffic, noise, light pollution, etc. that are simply out of scale and harmful to neighborhoods.  Grow Raleigh Great supports reasonable sizes and agrees with industry standards that limit store sizes to 30,000 square  feet for Neighborhood Mixed Use areas.  For retailers that desire larger stores, then the choice is obvious.  Choose an appropriate commercial district that is zoned to support such stores.  In fact, this standard is already set as the City is already mapping larger plazas with larger stores to CX while mapping smaller retail to NX.

5. The extreme range of intensities in NMU will lead to extreme unpredictability in the development review process, and already has.

Staff does not fully understand this comment, and disagrees that a range of development options will lead to unpredictability in the development review process. As stated, the review process was altered in the UDO to create more certainty in the processing of requests. The previous preliminary development plan review and infill recombination processes were unpredictable.

Zoning districts typically allow a range of uses that are deemed suitable for that district. If a developer proposes a use that is permitted, and the development plan meets the development standards, then that developer should expect that the development plan will be approved. Therein lies the predictability of the process. From a third party standpoint, the only predictability lies within the range of uses and development standards.

If the desire is that a very specific development outcome be pre-ordained by the zoning, only PD zoning and Conditional Use zoning can reasonably deliver on that desire. This is unchanged from the prior code. As an example, O&I zoning might result in a garden apartment complex; an office park; or a hospital. The specific use was not predictable prior from the zoning category alone, but what has always been predictable is that whatever use was developed would be required to meet the standards of the district.

The range of uses permitted in the commercial (or mixed use) districts is no wider in the UDO. The Part 10 zoning code contains commercial districts with similar ranges of permitted uses.

Grow Raleigh Great argues that unpredictability arises from far too many choices.  NX districts allow structures of unlimited size up to ten acres.  If you move into a home, do you  want to discover that a developer wants to build a 50,000 square foot grocery store next door or across the street from your home?  Or, with unlimited size, the possibility could be much worse.  Grow Raleigh Great argues that store sizes for NX should be limited to 30,000 square feet to encourage the development of centers that are to scale with the neighborhood.  

6. SC remapped to CX has more undesirable uses.

As noted in Point 1 and in the attached summary of permitted uses, staff is unclear which uses are being identified in this comment, as list of permitted uses in SC and CX is very similar. Regardless, the Planning Commission and City Council can propose any zoning district on any property during the public hearing process. If the Commission and Council feel that CX is inappropriate in any location, the zoning can be altered. If the Council so directs, the Planning Commission could review the application of CX on the proposed zoning map.

7. Look at Buffer Commercial and where it should be remapped to OX, not NX.

As noted in items 2 and 6, the Council may wish to direct the Planning Commission to review how staff has proposed to remap BC areas. Staff can provide an analysis for the Commission as a starting point for the discussion.

Grow Raleigh Great noted that mapping of Buffer Commercial to NX grants far more entitlements than currently exist.  Remapping Buffer Commercial to either RX or OX would meet the current entitlements of Buffer Commercial.  Grow Raleigh Great does think that mapping Buffer Commercial to NX does create spot zoning possibilities.

8. The Comprehensive Plan clearly defines the differences in retail intensity between NMU and CMU but the UDO does not.

This is related to comment number 2.If the Council so directs, staff can review the table of permitted uses and examine if any adjustments are needed to the NX district. Staff has already been asked to review gas sales in the NX district; this examination can be expanded to other uses. The maximum size of 10 acres is a significant difference between NX and CX, and would mean that NX zoning could not be used for certain retail types, such as power centers and regional malls.

Grow Raleigh Great is concerned because the range of sizes and intensities excluding power centers and regional malls is huge.  The range of sizes and intensities varies from a Snoopy's Hotdog Stand all the way to Cameron Village.  Indeed, Cameron Village sits on about 25 acres.  Thus, it is conceivable that an NX district could be occupied with the equivalent of nearly half of Cameron Village.

9. Late night uses are a growing problem and need to be addressed in the UDO.

This comment has been raised during discussion at the Law and Public Safety Committee related to a specific use on a specific property on Peace Street. This conversation is still pending at the Law and Public Safety Committee. Staff is unable to draw a conclusion that the particular use is the root of the concerns that have been raised to date. The City Attorney has opined that it would be difficult to restrict the particular use without any rational nexus between the use and undesirable activity.

Like the prior code, the UDO does require that late night uses near residential address their full parking requirement, even when within an urban frontage. Additionally, there are hours of operation standards for retail uses in the RX and OX zoning districts. These are traditional residential and office zoning districts that permit a small amount of ancillary retail. The transition standards require hours of operation for any outdoor patio or dining use adjacent to a residential zoning district.

Staff agrees that this issue merits additional research. However, the issue is not new with the UDO, and the UDO framework is capable of accommodating additional standards for late night businesses when such standards are developed.

10. Need closer coordination between the UDO and the Comprehensive Plan in order to have a more predictable and efficient development review process.

Staff is unsure of the problem described by this comment. Very little commercial development has occurred under the UDO, so it would seem premature to state that the review process is neither efficient nor predictable. The discretionary preliminary development review and infill recombination processes were retired in part to provide a more predictable review process, whereby projects meeting the code standards could be assured of approval.

If the intent of the comment is to create a more predictable legislative process (i.e. rezoning), staff notes that under North Carolina law, no Comprehensive Plan, no matter how well written, can implement that goal by itself. Under the zoning enabling statute, the governing body is given the legal authority to approve zoning inconsistent with its own plan so long as it can find the zoning to be reasonable and in the public interest. Likewise, the law does not require approval for cases deemed consistent. It may seem desirable to strive for more certainty and definition in the Comprehensive Plan such that disagreements regarding consistency are minimized; however, the City Council routinely approves rezoning requests that are inconsistent with the Comprehensive Plan and have conversely denied fully consistent requests.

Declaring consistency with the Comprehensive Plan is recognized as an important step in approving rezonings.  Inconsistency with the Comprehensive Plan gives developers an opportunity to make changes.  Inconsistency with the Comprehensive Plan gives elected officials and the public a heads up that a proposed development has issues.  It might be that an inconsistent proposal is in the public interest.  However, that is for the City Council to determine with public input.  Grow Raleigh Great supports a predictable and efficient development review process.