On April 12, 2012, after three months of deliberation, the Memphis and Shelby County Land Use Control Board (the “LUCB”) approved a series of amendments to the Unified Development Code (the “UDC”). This was the first step in a rather complicated approval process that requires action by both the Memphis City Council and the Shelby County Board of Commissioners.
When the UDC was originally approved in August of 2010, City Council and the Board of Commissioners requested that planning staff, within one year, prepare a series of amendments in response to its experience in the enforcement and administration of the UDC. For the most part, these amendments are nothing more than a clarification of current policies and procedures that have arisen since the adoption of the UDC.
Some language throughout the UDC can be interpreted in a number of ways; many of the proposed amendments simply eliminate the room for interpretation. But far more controversial than those items are those amendments that have been called by some as a “gutting” of the original UDC. I would like to take this opportunity to respond to questions that I have heard over the course of the past several months.
- Why aren’t the overlay districts addressed?
The overlay districts, namely the Medical, University and Midtown Overlays, were adopted while the UDC was still being formulated. With the UDC now in place, one could argue that the overlay districts are now superfluous. The UDC contains the tools necessary to mandate urban, pedestrian-oriented development and redevelopment in certain areas. While my original proposal for the UDC amendments would have eliminated certain provisions of the overlay districts that contradicted each other and the rest of the UDC, this strategy was abandoned once it was determined that those groups that had assisted in the creation of the overlay districts were strongly opposed to any changes to these regulations. Instead, the overlay districts will remain largely intact until staff and the community groups who helped draft the overlay districts can determine a plan of action on how to address not only discrepancies between one overlay and the other (for instance, the Board of Adjustment has no jurisdiction over the Midtown Overlay District regulations, but it is the lead appellate agency in the other two overlay districts), but also how to identify future pedestrian-oriented areas in the City and County.
- What about provisions of the overlay districts that were deleted with the original adoption of the UDC?
Some language on procedure found in the original overlays was deleted with the adoption of the UDC. Ironically, much of this language, such as required sign postings for “by right” uses, was also proposed to be included in the Midtown Overlay, but was removed by City Council. Replacing this language at this point would not only be in direct contradiction of a previous order by City Council, but it would also defy the eventual goal of making the overlay districts and the balance of the UDC less contradictory to one another. For the record, the original UDC with this procedural language removed from the overlay districts was presented to the Land Use Control Board on February 11, 2010, which was my third day on the job at OPD. I had no hand in deleting this language.
- Will planned developments expire? Must planned developments be accompanied by a concept plan?
In an effort to promote redevelopment inside the City limits, an earlier draft of the UDC amendments stipulated that planned developments within the City of Memphis would not expire and those outside of the City limits would expire in ten years. Unlike rezonings, which may be revoked by the government, planned developments essentially run with the land. Expirations are the only way to address planned developments that may no longer fit the neighborhood. So, language that would grant planned developments perpetual effectiveness, as well as eliminate the requirement that all planned development outline plans be accompanied by concept plans, has been abandoned.
- Why is the use chart being drastically altered?
With the adoption of the UDC, a brand new use chart was enacted which highlights which uses are permitted in which zoning districts. The use chart made some radical changes; for example, while tattoo parlors were permitted in all commercial zoning districts under the old Zoning Code, they are only permitted in the highest commercial district under the UDC. In fact, the use chart alone inadvertently created thousands upon thousands of nonconforming uses through the City. Another recent example is a woman who purchased a small office building in an industrial zoning district but the UDC use chart prohibits offices buildings in industrial zoning districts. With no notice required, the UDC accidentally downzoned a great multitude of properties without any notification whatsoever. This issue is being reversed by the UDC amendments. There are many other sections in the UDC, such as maximum building footprint in certain zoning districts to prevent the proliferation of big box stores and the requirement that apartment buildings be located in close proximity to their abutting streets in an effort to create more sustainable multi-family developments, that are very good ideas but they simply cannot be expected to apply to existing sites. So, language was added in the recent amendments that stipulate that these will only apply to future developments. For instance, Poplar Plaza is zoned CMU-1, the lowest commercial district in intensity. The maximum building footprint in the CMU-1 district is 15,000 square feet, which makes the proposed expansion of the Kroger store impossible without either a rezoning, planned development or premature submittal of building plans (the applicant chose the latter).
- Why is the use variance being returned to the Board of Adjustment?
There are three pieces of enabling legislation passed by the Tennessee General Assembly in 1925, 1931 and 1935 that granted the right of the Memphis and Shelby County Board (at the time, Boards) of Adjustment to approve variances. These private acts have largely been adopted as parts of the Charter of the City of Memphis and the County of Shelby. Therefore, action must be taken by the General Assembly to change the language of these private acts or by the voters of the City of Memphis or Shelby County to change the language of the City and County charters prior to any alteration to the use variance process. Unless and until that occurs, the proposed UDC amendments will tighten the discretion the Board has on the passage of use variances.
On a final note, I will ask you to please juxtapose the approval of the UDC amendments on Thursday, April 12, 2012, with the front page story just a few days later in the Sunday, April 15, edition of the Commercial Appeal, which highlighted the historic budgetary issues that face the City of Memphis.
The UDC was written at a time when additional staff was promised for the enforcement of the Code, since the zoning staff with OPD is a fraction to that of other Tennessee cities. That staff was never hired and, so long as the City and County are looking to streamline their ranks, it is unlikely that any additional staff will be hired in the near future. The proposed UDC amendments bring the Code into this streamlined reality. The document itself will be more streamlined. The reader will no longer seek as much assistance in its interpretation. The processes are more defined, and in some cases, completely eliminated. More discretion is given to the planning staff, which will require fewer applications to be made to the Board of Adjustment. And, if it is determined that some of the amendments go too far in this streamlining objective, they can always be amended. One of the conditions placed on the Land Use Control Board’s approval of this item was that OPD would prepare, on a regular basis, clean up items to the UDC.
In conclusion, I have had the privilege of administering the UDC during its first year of enactment. The amendments that my staff and I have prepared strike the balance that I believe we all want to achieve that will both foster good development and redevelopment, but also encourage such growth in areas that already have the infrastructure. This will not only breathe new life into our sometimes distressed, older communities, but also make the City more sustainable and more prosperous.
Josh Whitehead is director of planning for the Memphis and Shelby County Division of Planning and Development.