To contribute to the discussion and debate about changes to Unified Development Code, we requested a list of the issues that are causing the greatest opposition. They are the six issues listed below.
We then asked Planning Director Josh Whitehead for his responses and those follow each issue.
Here are his replies:
I think there is a copy of the UDC that is circulating that was posted on the blog in February or March (before and during my meetings with the UDC Oversight Committee) that some believe is the final copy of the UDC being presented to the legislative bodies. See the blog: http://www.shelbycountytn.gov/Blog.aspx?IID=12
The UDC posted on April 4 was the copy presented to the LUCB on April 12. The UDC posted on April 20 is the copy as approved by the UDC on April 12. Both are clearly marked described. The April 12 version contains 5 changes, as compared to the April 4 version: 3 of which were presented to the Board and are contained in a memo I presented to the Board (concerning mobile food trucks, covered porches and neighborhood notification) and 2 of which were approved by the LUCB during their meeting (both deal with group lessons such as swimming lessons). I just posted the minutes of the LUCB and the memo I presented on the blog.
Also, see May 31 post on the blog – it contains additional language I will present to Council during third reading.
1. Changes to UDC eliminated concept plan requirement; citizens and decision-making bodies will not be shown any site plan of the proposed development.
Mr. Whitehead’s response:
The current UDC contains no language on concept plans. I originally added language that concept plans be required with outline plans, but there was a hue and cry from the development industry, so I removed the requirement believing that keeping it “as is” was the more expeditious alternative. With that said, either staff, the LUCB, the City Council or County Commission will require a concept plan for 99.9% of the PDs. This has been the un-codified rule for 10 years now.
2. Planned developments are specified to be permanent immediately upon approval in the City of Memphis and to expire in 10 years in Shelby County outside of the City of Memphis. This means a planned development will be permanent before any investment is made in hiring engineers and other professional staff to draw plans. Under current regulations, PD’s are made permanent upon recording of a final plan.
Mr. Whitehead’s response:
This was in neither the April 4 version nor the April 12 version of the UDC posted on the blog. It is not part of the current proposal.
3. Expired planned developments are eligible to be re-approved as a Major Modification. There is no limit to how far back in time these go. The notice is reduced to only the property owner and adjacent owners. OPD had previously agreed that these reactivations of expired developments should have the same public notice required for a new application. The same notice would consist of a sign posted, 500 foot radius property owner notice and neighborhood notification.
Mr. Whitehead’s response:
The allowance to reactivate a Planned Development after its expiration stems from numerous applications that were filed with OPD for relatively small PDs immediately after their 5-year expiration periods had passed. If OPD is to demand a new PD application in these instances, versus an application for reactivation, definitive language is needed that states exactly when a new application must be submitted. I would like to propose language that permits the reactivation of a PD if a complete application is filed with OPD prior to expiration. This seems a little more reasonable than requiring Land Use Control Board action prior to the date of expiration since it takes at least 45 days between filing an application and Board action.
4. Notice to neighborhoods has been completely removed for all types of applications.
Mr. Whitehead’s response:
This was in neither the April 4 or April 12 version. See Table 9.3.4 for changes to neighborhood notification. Plus, see post dated May 31 for additional requirements for neighborhood assoc. notification.
5. Neighborhood notification was specifically eliminated for any subdivision of less than 10 lots. After the Land Use Control Board, the provision was amended to eliminate neighborhood notification requirements for any subdivision with less than 50 lots. Specific language was also added stating that posting of a notice sign shall not apply to a subdivision with less than 50 lots.
Mr. Whitehead’s response:
It’s back to 10. See post on May 31. This is actually a huge win compared to the UDC right now, which requires no neighborhood meeting for subdivisions. Plus, I added that minor subdivisions require neighborhood notification (see 9.3.4) – that is currently not required in the UDC.
6. Administrative deviations have been dramatically increased. These administrative deviations allow the Planning Director at OPD to approve variations of zoning requirements without any public meetings and without any notice to affected citizens or neighborhood associations.
Mr. Whitehead’s response:
The UDC was originally designed to enable the Planning Director to grant certain minor deviations from the Code without forcing a property owner to file for a variance from the Board of Adjustment or a Planned Development from the Land Use Control Board and City Council. Currently, the UDC contains 19 permissible administrative deviations, with another 17 in the Midtown Overlay District. The amended UDC contains 12 more (an increase of 33%), three of which are already contained in the Code but cannot be universally applied. These are as follows:
1. 3.7.2B, et seq. (located in the tables). Maximum setbacks for townhouses and apartments may be determined by averaging that building’s total setback along a street. For example, apartment buildings downtown and inside the parkways are required to be close to the street. If a proposed apartment building is 100 feet wide and is mostly pulled up to the street, but contains some sections that are past the maximum permitted setback, the Planning Director may average the setback for the entire width of the building. This language is already included in two of the overlay districts (Medical and Midtown) and other streets that may be designated in the future (and fall under the provisions of 3.10.3).
2. 3.7.2B, et seq. (located in the tables). Frontage walls may be included in the determination of a townhouse or apartment building’s maximum setback. This is already permitted in the Midtown Overlay District and other streets that may be designated in the future. However, there is a limitation to this administrative deviation. See 9.21.2A(3): a frontage wall may only account for 5% of the total required width of a townhouse or apartment building.
3. 4.3.4. Alternative streetscape plates are permitted. For example, if a site is wedged between two other sites where the sidewalk is behind a 2-foot grass strip or abuts the curb, the Planning Director may grant an administrative deviation to permit the redeveloped site to also locate the sidewalk in this alternative location. Similarly, for sites that are in a part of town with no sidewalks, the Planning Director may completely waive the requirement that sidewalks be installed, but this is only limited to those sites without curb and gutter (in other words, rural sites). In the Midtown Overlay District, there is currently language that permits the Planning Director to grant administrative deviations to the streetscape requirements (see 8.4.5B(1)(g)). Outside of the Midtown Overlay District, the Planning Director may only currently approve alternative streetscapes if a site contains aboveground utilities.
4. 4.5.3C(5). The proposed amendments contain graphics for the placement of bicycle parking, both on site and in the public right-of-way. The Planning Director is authorized to grant administrative deviations to the specific dimensions of these graphics.
5. 4.5.5D(4). All sites that are over an acre in size must provide landscaped islands at the ends of rows of parking (called “terminal islands”) unless the Planning Director approves an administrative deviation. However, if the Planning Director grants such an administrative deviation, additional landscaping shall be provided on the site. This issue has repeatedly come up on retail sites where delivery is required by semi truck and the turning radius of the truck makes the installation of corner terminal islands impractical.
6. 4.5.5H. The Planning Director may waive the requirement to install curbs inside a parking lot. This issue is often raised in rural areas, particularly for places of worship.
7. 4.6.5H. If a site is too small or contains a building too close to the property line to install the appropriate landscaped buffer, that landscaping may be planted on the abutting property, with both the issuance of an administrative deviation and the approval of the abutting property owner.
8. 4.6.7E. Electrified fencing, barbed wire and concertina wire is currently permitted in the industrial zoning districts. However, there have been requests in other non-residential districts for this type of fencing, particularly around the rear property lines of some commercial properties. Rather than the current strict prohibition on this type of fencing in the commercial zoning districts, the Planning Director would be authorized to approve an administrative deviation.
9. 4.7.3C. The outdoor lighting section of the Code is being completely rewritten. The Planning Director is authorized to approve an administrative deviation for certain lighting requests.
10. 9.21.2A(1). The Planning Director may approve an administrative deviation that allows a 10% reduction in a minimum building setback. This administrative deviation was actually permitted under the old Zoning Code but inadvertently removed from the UDC and replaced with an allowance to approve a 10% reduction to maximum setbacks. Maximum setbacks are relatively rare; they only exist in the overlay and special purpose districts.
11. 9.21.2A(4). The Code typically requires buildings be at least 2 feet behind the right-of-way. This is to enable doors from opening into the sidewalk without encroaching into the required minimum passable area, per the ADA. However, there are many existing buildings built immediately at the right-of-way (a 0-foot setback). Buildings with a 0-foot setback will be allowed to expand, rebuilt, etc., with the issuance of an administrative deviation. This was the case with the recent expansion of Holliday Flowers on Union.
12. 9.21.2D(1). This section permits the Planning Director to approve an administrative deviation for the creative use of certain building materials that would otherwise be prohibited. A new 3.10.3G(2) stipulates that certain building materials are not permitted on streets that have been designated with frontages through the rezoning process (this section, which is meant to remove the necessity to create a new overlay district, has yet to be utilized).
On a final note, all administrative deviations must meet the test of 9.21.4.
So in summation – This section permits the Planning Director to approve an administrative deviation.
Recent letters in favor of the UDC amendments talk of difficulties in developing real estate inside of Memphis. Yet the clear intent behind the push to amend is to lower standards for sprawling developments outside of Memphis.
The real estate community sees a housing market coming back to life, and they are laying the groundwork now when much of the public good in the current UDC can not be seen.
You can almost hear their strategy sessions: “let’s emphasize that the current UDC is making it harder to develop in Memphis rather than outside Memphis. This way the City Council will look favorably on our amendments.”
Josh Whitehead’s response raises a number of grave concerns about the proposed amendments:
Why are there versions of the amendments dated April 4, April 12 and May 31? When did Land Use Control Board (LUCB) vote on amendments? Are there amendments going to the City Council that have not been seen by the LUCB? Will the City Council know the difference between LUCB recommendations and Josh Whitehead’s recommendations?
The contrast between the opposition’s problems with the proposed amendments and Josh Whitehead’s answers is strange. Is the opposition confused because of the different versions? How can the opposition be so off the mark, according to Mr. Whitehead, when the opposition consists of people who are professionally experienced and are very familiar with the current UDC and can see amendments that threaten the integrity of the UDC?
Thank you Finegold for pointing out what may the real impetus to these proposed changes – continuation of our antiquated suburban sprawl philosophy.
I find it interesting that Mr. Whitehead points out the “hue and cry” from the development industry as his reason for not codifying the Planned Development concept plan requirement. He says that this has been an unwritten rule required by the staff, LUCB or legislative bodies for over ten years now. Since he hasn’t been at OPD for near 10 years, how does he know? And does he know of the continual abuse caused by bypassing zoning and subdivision regulations in the 1980s-2000’s in favor of the more quickly approved and far less demanding Planned Development process?
I think now it is imperative for the legislative bodies, LUCB and planning staff to recognize the hue and cry coming not just from the small ad hoc group trying to do their best to identify and address the myriad of changes being thrown at the public all at once, and the hue and cry coming from small business groups, neighborhood associations and Jane/Joe citizen.
The majority of the participants in the years long drafting process of the UDC want no changes made to THEIR UDC without a complete non-legalese explanation of the changes through a series of area wide public meetings and hearings – just as the original process offered the m. It is clear that the development community was involved in these changes as shown by Mr. Whitehead’s own words. Now the voices of our citizens require the same (and more) amount of time, study and detailed input as any special interest group.