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Subject
Discussion and Instructions on Zoning Text Amendment TXT2010-00226
Recommendation
Review the public hearing testimony and direct staff to prepare an ordinance to adopt a final version of the proposed Zoning Text Amendment (ZTA).
Change in Law or Policy
The text amendment proposes to modify (1) the definition of Open Area; (2) the definition of Public Use Space; (3) the amount of public use space required per Section 25.13.05, Development Standards; and (4) the general requirements contained in Section 25.17.01, Public Use Space (Attachment A).
Discussion
The public use space requirement, and companion fee-in-lieu of public use space alternative, initially came about via the RORZOR process and was ultimately adopted and codified into the Zoning Ordinance. During the process, there was a general consensus that there needed to be some “public benefit” derived from development in Mixed-Use (MX) Zones, especially because these zones created more opportunities for housing and minimal setbacks. The public use space was created to allow property owners flexibility in order to obtain outdoor areas that could be well-designed as functional public spaces as a trade-off for a patchwork of small privately-owned setback areas. The fee-in-lieu was suggested by the RORZOR committee as an alternative for owners of small sites that may find it difficult to fit the required site improvements (parking, landscaping, trees, stormwater, etc.) along with the public use space on a small tract of land.
Recent public comment on the recommended fee-in-lieu of public use space resulted in criticism of the current across-the-board 20 percent public use space requirement. Speakers at the December 7, 2009, Mayor and Council public hearing on this issue stated that the current 20 percent public use space requirement imposed a disincentive to develop or redevelop properties in the MX Zones, and that the fee-in-lieu required as the alternative was onerous.
As a result of the public testimony, the Mayor and Council deferred action on the fee-in-lieu of public use space calculation and directed staff to reexamine the current public use space requirement. The Mayor and Council also directed staff to meet and work with the Chamber of Commerce on recommended changes. Staff will reintroduce the fee-in-lieu of public use space calculation (Attachment B) to the Mayor and Council for action after Discussion and Instruction on this text amendment. As requested, a few examples of how the proposed public use space revisions would affect the fee in lieu is shown as Attachment C.
Staff agrees that there should be public use space required for most MX Zone development, but recommends that it be tailored to the intent of the respective MX zone, and in some cases, lot size. The underlying assumption during the RORZOR process was that all development would be built to the maximum density allowed. In practice, development density is more a reflection of the market absorption in the area and the types of uses in the project. As a result, having the 20 percent "one-size-fits-all" public use space requirement is not practical or desirable in many instances.
The proposed public use space percentages are outlined in the draft text amendment (Attachment A) and the reasoning behind the varying percentages is explained more fully in the Planning Commission's staff report in Attachment D. Staff is also recommending that the proportionate scale for expansions to existing development (approved by the Mayor and Council February 8, 2010 in ZTA TXT2010-00224) be retained, but revised to reflect the new percentage requirements in this ZTA. If the Mayor and Council make further changes to the percentages, the proportionate scale may need to be revised in the final draft.
JUNE 7, 2010, MAYOR AND COUNCIL PUBLIC HEARING
At the public hearing, verbal and written testimony was submitted to the record. A summary of the testimony and exhibits are shown in Attachment E. With the exception of the Planning Commission's comments (see Boards and Commission section, next page), all testimony was in support of the text amendment.
During the public hearing, verbal and written testimony raised a new issue suggesting the definition of public use space be modified further to allow certain "indoor spaces" to qualify. The concept of indoor spaces goes beyond the original intent for public use space, which was intended to be outdoor space generally accessible to the public at all times. However, there may be instances where alternatives may be deemed suitable. If the Mayor and Council decide to consider the indoor space alternative, the staff suggests that the second paragraph of the public use space definition could be revised to read as follows (the underlining indicates new text):
In addition, public use space may also consist of indoor spaces dedicated to the provision of publicly-accessible art and open areas or dedicated spaces open to the public such as museums, art galleries, cultural arts centers, or community rooms, including enhanced public walkways and off-site public improvements. Such public improvements do not include road improvements or other capital projects in the vicinity of the property. Internal landscaping within a parking facility, as required in Section 4.d of the Landscaping, Screening and Lighting Manual, does not constitute Public Use Space. Development consisting primarily of office and/or industrial uses may include space accessible to the public or the employees of the site for the purpose of satisfying the public use space requirement.
At Mayor and Council's request, the staff researched how other jurisdictions handle credit for indoor public space and found widespread results. Montgomery County's regulations are almost identical to this proposal while Fairfax County gives no credit and Baltimore gives credit for many things, including bowling alleys.
In addition, during the public hearing, testimony was submitted that suggested modifying the proposed footnote #3 related to the master plan reference. Staff agrees that this language needs to be adjusted to make it less directive, but still require the master plan recommendations to be considered in meeting the public use space requirement. As such, staff submits the following language for consideration to the Mayor and Council during Discussion and Instructions (D&I):
Where the applicable master plan makes specific recommendations on the provision of amenity area and public use space requirements, the master plan recommendations must take precedence be taken into consideration by the approving authority when reviewing a development project.
Mayor and Council History
The Mayor and Council unanimously voted to authorize the filing of the subject ZTA at its meeting on March 15, 2010. The Mayor and Council held a public hearing on the subject ZTA on June 7, 2010.
Public Notification and Engagement
Pursuant to State law, the June 7, 2010, public hearing was advertised in a local newspaper (the Gazette). Notice of hearing was also sent to all Mixed-Use Zone property owners. Also, the ZTA has been posted on the City's website for public review. Notice has been given to all City homeowner associations and civic associations via listserv. The record closes on June 14, 2010. Attachment E documents the ten speakers and seven written comments received.
Boards and Commissions Review
The Planning Commission reviewed the subject text amendment at its meeting on May 12, 2010. Their recommendation of denial on a 4-1 vote is shown in the memorandum to the Mayor and Council (see Attachment F). The Commission further discussed the text amendment at its May 26, 2010, meeting, and developed further recommendations for the Mayor and Council to consider. This was sent separately to the Mayor and Council in time for the June 7, 2010, public hearing. The supplemental recommendation is appended to Attachment F.
Next Steps
- Introduction of the Ordinance - 7/12/10
- Adoption of the Ordinance- 7/26/10
Attachments
Attachment A (TXT2010-00226, as Authorized)
Attachment B (Mayor and Council Public Hearing on "fee in lieu" of public use space from 12/7/09)
Attachment C (Example "fee in lieu" calculations based on the proposed modifications)
Attachment D (TXT2010-00226 Staff Report to the Planning Commission)
Attachment E (Summary of June 7, 2010, Public Hearing Testimony and of Correspondence Received into the Record, as of June 10, 2010)
Attachment F (Planning Commission Recommendation to the Mayor and Council on TXT2010-00226)
Department Head:
Susan Swift, Director of Community Planning and Development Services
Approved on: 06/16/2010
City Manager:
Scott Ullery, City Manager
Approved on: 06/16/2010
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