November 21, 2006

The finish line: The public has no say when proposed zoning changes reach the Metro Council. Should it?

Stephen T. Porter is a real estate lawyer who also happens to live in the Tucker Station neighborhood, in the southeastern portion of Louisville Metro, where a group of 12 houses will be replaced in due time with a 282-acre industrial park, though the development was challenged by a lawsuit Porter filed on behalf of the neighborhood association, which is basically how this story begins. Despite the relative import to the locals, as it were, it’s the why of this story that’s paramount: In May, when a Metro Council committee met to consider a Planning Commission recommendation that the residential property be rezoned to Planned Employment Center (PEC), neither Porter nor others representing the Tucker Station Neighborhood Association were allowed to speak about changes made to the Planning Commission’s recommendation.The attorney representing the developer, however, was allowed to speak at length about the amendments, and actually opposed some. This is how it’s done every time at the Metro Council’s Planning/Zoning, Land Design and Development Committee, the legislative complement to the Planning Commission, which is an advisory body: Representatives of neighborhoods, neighbors themselves and the public at-large are prohibited from speaking. It’s not easy being zonedThe process of getting a zoning change is long and complex, and pretty much a turn-off to your average citizen.“It’s as frustrating for the development community as it is for us,” Betsy Overstreet said Monday. Overstreet is the president of the Fern Creek Neighborhood Association and chairwoman of Community Leadership Alliance, a group formed 10 years ago to assist citizens in the often-convoluted course of meaningfully communicating with their government on a broad range of issues. Though it wasn’t always — in the old days, closed-door meetings were the way of the gun — the process to get a zoning change in merged government is elaborate. First, a developer and engineers prepare a site plan, which is submitted to the Planning Commission as a pre-application, available to the public immediately. Within 30 days, all involved meet — developer, engineer, Planning Commission staff — along with a case manager. Once a pre-application is filed, the developer must meet publicly with neighbors, during which time changes may be made to the original site plan. The developer must then wait seven days to file a formal application. Then it’s on to the Land Development and Transportation Committee, which operates under the Planning Commission, for a technical evaluation; that body can set a date for a public hearing before the full Planning Commission. After that, property owners must receive 30 days notice (via first-class mail) of the hearing. After a final hearing, the Planning Commission sends a recommendation to the Metro Council committee, which has the power to approve it and send it to the entire Council for a final vote. It’s this final step where the whole thing falls apart for some — like playing a football game in the snow and ending with a tie score, only to learn later that your opponent was allowed back on the field, after time had expired, to score the winning touchdown.A matter of fairnessFor Porter and 40-some neighborhood associations from all over the Louisville Metro map, that violates due process. That’s why they’ve sued, and proposed changes to the Council committee’s procedures to allow both sides a chance to respond to any amendments made to zoning proposals at that crucial last stage, and to ensure that if one side speaks, the other can too. The suit, filed in May, was remanded to the Council committee. In the past month, they’ve met twice to discuss it. “We’re not asking for a new public hearing, we’re not asking for a rehashing of all the subjects and controversies that were raised at the Planning Commission,” Porter said in an interview last week. “All we’re asking for is the equal opportunity to respond to new proposals.” Almost everyone agrees with Porter and company, including several attorneys who regularly represent developers in zoning cases. Four — including the opposing attorney in Porter’s lawsuit — spoke in favor of the proposed changes at a Nov. 14 Planning/Zoning committee meeting. “I think that the current environment is such that there’s probably a lot of frustration and maybe even a low level of trust of the process,” said Paul Whitty, a partner at the law firm Greenebaum Doll & McDonald who represents developers, institutions and individuals trying to get projects through the planning and zoning process. Whitty was counsel to the Planning Commission before, and said that overall, he thinks the process is favorable to neighbors. He spoke at the Nov. 14 meeting. Councilwoman Madonna Flood, D-24, chairs the Council’s Planning/Zoning committee. In an interview Monday, she said state law, which doesn’t allow new evidence once a zoning recommendation reaches her committee, is the reason neighbors can’t speak on zoning cases.What binds us refines usAt issue is the Planning/Zoning committee’s ability to add or subtract binding elements, or forms of mitigation added into zoning recommendations. Binding elements are typically tools of negotiation between developers and neighbors.Flood or a member of her committee may introduce a binding element to, for example, increase the height of a retaining wall on a development site, or add trees for beautification. They often do.“We have never taken away a binding element,” she said. “We have discussed the possibility of saying, ‘If we take away something from the case that is detrimental to the neighborhood, which I don’t ever see us doing, we would ask the neighborhood.’” There is near-universal agreement that binding elements rarely affect neighborhoods negatively; however, the “just trust us” nature of the present arrangement doesn’t hold for some. In the case of Tucker Station, Porter said binding elements were added based on discussions that didn’t take place on the public record; when the committee introduced them, the developer’s attorney was asked to agree, which is done, according to Flood, because binding elements often affect developers’ budgets.Porter said the “messiness of Democracy” argument — not allowing people to speak anew as a way of preventing them from introducing new evidence — is bunk.Jim Segrest, president of the Butchertown Neighborhood Association, said it’s a way for the Council to deter public input. “I think they try to hide behind what they consider to be their procedures to keep from having to listen to people,” he said. The committee will formally consider changing its procedure when it meets in December. To find out about any new developments coming to your neighborhood, visit www.louisvilleky.gov/PlanningDesign. To keep up with the Metro Council’s committees, check out www.louisvilleky.gov/MetroCouncil/committees.