Zoning Code Update - Overlays - Issues and questions

[PonderInc]

In looking at the proposed zoning code update, I have some questions.  I'm splitting them out by topic.

Here's the draft: http://zoningcode.planittulsa.org/sites/default/files/documents/Tulsa%20Zoning%20Code%20PublicReviewDraftFebruary2015.pdf

Issue - HP Overlays:
It seems that we are making it harder to initiate an HP overlay in the new zoning code than it was to initiate an HP district in the current code. (Please correct me if I'm wrong.)  

The language that bothers me is in section 70.060-H Protest Petitions.

Basically, if a protest petition is filed against any proposed HP zoning map amendment, it requires a favorable vote of 3/4 of the city council. A protest is deemed valid if it's signed by 20% of the owners of lots included in the overlay or 50% of the owners of lots WITHIN 300 FEET OF THE AREA INCLUDED IN THE PROPOSED AREA.  So people who aren't even in the actual area can kill a desired HP zoning initiative.  

(The current zoning code does not include any such provision.) It also seems like a sneaky way to make it easier for adjacent commercial property owners to eliminate barriers to encroachment.

Too bad PUD's don't require a super-majority for council approval if 50% of the neighbors object.

If anyone has more info, I'd like to understand.

[PonderInc]

Here are a couple other questions related to overlays in general:

1. Why did they create a "Residential Character" overlay, which is limited to residential areas, and a "Plan Based Overlay" which can be used for commercial?  Why not just have a zoning code that provides for "overlays?"

My concern here is that you could have a residential overlay, but it would disappear on a particular parcel if someone buys that property and re-zones it commercial.  All those protections would go away.  This seems especially important for properties on the fringes of commercial districts.  

2. I also don't understand the need to have 100% of the property owners in a proposed overlay area approve of it before you could even initiate the public process to consider the overlay.  This is ridiculous, and it's not how anything else works.

[TheArtist]

The new zoning code looks great at first glance. But the more you read into the fine print, the more it actually looks like a few people have had a heyday placing in caveats which actually make the new code worse than the old if you want to actually make any of the changes that people think it will enable.

[Bamboo World]

In looking at the proposed zoning code update, I have some questions.  I'm splitting them out by topic.

Here's the draft: http://zoningcode.planittulsa.org/sites/default/files/documents/Tulsa%20Zoning%20Code%20PublicReviewDraftFebruary2015.pdf

Issue - HP Overlays:
It seems that we are making it harder to initiate an HP overlay in the new zoning code than it was to initiate an HP district in the current code. (Please correct me if I'm wrong.)  

The language that bothers me is in section 70.060-H Protest Petitions.

Basically, if a protest petition is filed against any proposed HP zoning map amendment, it requires a favorable vote of 3/4 of the city council. A protest is deemed valid if it's signed by 20% of the owners of lots included in the overlay or 50% of the owners of lots WITHIN 300 FEET OF THE AREA INCLUDED IN THE PROPOSED AREA.  So people who aren't even in the actual area can kill a desired HP zoning initiative.  

(The current zoning code does not include any such provision.) It also seems like a sneaky way to make it easier for adjacent commercial property owners to eliminate barriers to encroachment.

Section 70.060-H in the proposed draft update is a re-phrasing of Section 1703.E in the current zoning code.

Current zoning code Section 1703.E language:  
"In case of a protest against such zoning change filed at least three days prior to said public hearing by the owners of 20% or more of the area of the lots included in such proposed change, or by the owners of 50% or more of the area of the lots within a 300 foot radius of the exterior boundary of the territory included in a proposed change, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the City Council."

Proposed draft Section 70.060-H language:
"70.060-H Protest Petitions

1. If a valid protest petition is filed against any proposed HP zoning map amendment, passage of the text amendment requires a favorable vote of three-fourths of the members of the entire city council.

2. A protest petition will be deemed valid if it is signed and acknowledged by the owners of 20% or more of the area of the lots included in proposed HP zoning map amendment area or by the owners of 50% or more of the area of the lots within 300 feet of the area included in the proposed HP zoning map amendment area.

3. A written protest petition opposing an HP zoning map amendment must be submitted to the land use administrator at least 3 business days before the city council's vote."

Too bad PUD's don't require a super-majority for council approval if 50% of the neighbors object.

In some instances, PUDs do require a 75% super-majority for city council approval.  See Section 1107.H and Section 1703.E in the current zoning code.  Abuse of minor and major amendments to approved PUDs is one of the reasons that the creation of new PUDs is not included in the proposed zoning code draft.  Existing PUDs would become legacy districts.

[Bamboo World]

I also don't understand the need to have 100% of the property owners in a proposed overlay area approve of it before you could even initiate the public process to consider the overlay.  This is ridiculous, and it's not how anything else works.

In my opinion, the 100% acceptance by affected property owners is an excellent requirement for several reasons.  Here are a couple:

1. In some cases, private restrictive covenants would accomplish the same goals as zoning overlays.

2. The City is short on funds and staff to enforce codes and ordinances.  At a meeting at All Souls yesterday, I think an example was given supposing a base zoning district requiring 30 foot setbacks, but existing houses set back 35 feet instead of 30 feet.  A residential character overlay could be established to require 35 foot setbacks in the area instead of 30 foot setbacks -- at least that's how I understood the example.  I'd rather our scarce tax dollars not be wasted on such silliness.  We need to stick to the basics without cluttering the zoning code with things that don't matter to the general public (and could be better regulated by voluntary, private covenants amongst willing neighbors).

[rebound]

...We need to stick to the basics without cluttering the zoning code with things that don't matter to the general public (and could be better regulated by voluntary, private covenants amongst willing neighbors)...

You have much more faith than me in "voluntary", and "willing".

[PonderInc]

Section 70.060-H in the proposed draft update is a re-phrasing of Section 1703.E in the current zoning code.

Current zoning code Section 1703.E language:  
"In case of a protest against such zoning change filed at least three days prior to said public hearing by the owners of 20% or more of the area of the lots included in such proposed change, or by the owners of 50% or more of the area of the lots within a 300 foot radius of the exterior boundary of the territory included in a proposed change, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the City Council."

Proposed draft Section 70.060-H language:
"70.060-H Protest Petitions

1. If a valid protest petition is filed against any proposed HP zoning map amendment, passage of the text amendment requires a favorable vote of three-fourths of the members of the entire city council.

2. A protest petition will be deemed valid if it is signed and acknowledged by the owners of 20% or more of the area of the lots included in proposed HP zoning map amendment area or by the owners of 50% or more of the area of the lots within 300 feet of the area included in the proposed HP zoning map amendment area.

3. A written protest petition opposing an HP zoning map amendment must be submitted to the land use administrator at least 3 business days before the city council's vote."

In some instances, PUDs do require a 75% super-majority for city council approval.  See Section 1107.H and Section 1703.E in the current zoning code.  Abuse of minor and major amendments to approved PUDs is one of the reasons that the creation of new PUDs is not included in the proposed zoning code draft.  Existing PUDs would become legacy districts.

Here's what doesn't make sense to me.  The language you reference from the existing zoning code (1703.E) refers to "City Council Action on Zoning Map Amendments."

This language related to Protest Petitions for Zoning Map amendments is already included in the proposed zoning update in Section 70.030-G Zoning Map Amendments (Rezonings) - Protest Petitions.  Why is there a need to add this language specifically to HP overlay, but nowhere else?  

Also, is an overlay considered a "zoning map amendment?"  If so, it's already covered and this language is redundant.  If not, there's no need to add this extra burden to HP overlays.

In regards to the 100% - we are talking about INITIATING a public / legislative process. If you require 100% approval before you can even initiate a public discussion, nothing can ever occur. If our representative democracy worked like that, it would fail.

Covenants cannot achieve the same thing bc enforcement requires individual lawsuits / legal action. That's a lot different than city code enforcement.

[Bamboo World]

Also, is an overlay considered a "zoning map amendment?"

HP is an overlay or supplemental zoning district.  When HP districts are approved by the City Council, the zoning map is amended, designating an "HP" overlay on the underlying base zoning.  Tulsa has a few HP districts in neighborhoods near downtown.

In the current zoning code, see Section 1053.A.  See Section 1054 for information about HP zoning map amendments.

Under the current zoning code, HP zoning map amendments may be initiated by either the owner or owners of the property in the proposed HP district (Section 1054.C) or by the Planning Commission (Section 1054.D).

Under the proposed zoning code update, HP zoning map amendments could be initiated by the City Council, the Planning Commission, the Preservation Commission, or the owner of the subject property (or the owner's authorized agent).  See Section 70.060-B in the public review draft, which is a simplified re-phrasing of Sections 1054.C and 1054.D in the current zoning code.

In my opinion, there's essentially no difference between how an HP zoning map amendment may be initiated now versus how an HP zoning map amendment could be initiated under the proposed zoning code update.     

[Bamboo World]

This language related to Protest Petitions for Zoning Map amendments is already included in the proposed zoning update in Section 70.030-G Zoning Map Amendments (Rezonings) - Protest Petitions.  Why is there a need to add this language specifically to HP overlay, but nowhere else?  

I don't know why the language from Section 70.030-G is repeated in Section 70.060-H.  This could be an error in the draft.  But if I had to guess, I'd say it probably stems from the fact that HP zoning map amendments require the involvement of the Preservation Commission, while other zoning map amendments do not (see Table 70-1).  I suggest that you contact Theron Warlick if you think a section is in error or needlessly repeated.  I've found several errors in the draft, and Theron has been extremely responsive to my questions/comments.  And if Theron doesn't know the answer, he'll probably ask Kirk Bishop.

Also, is an overlay considered a "zoning map amendment?"  If so, it's already covered and this language is redundant.  If not, there's no need to add this extra burden to HP overlays.

If the City Council approves any zoning district map change, HP overlay or otherwise, then the zoning map is amended to reflect the approved change.  But as I see it, there is no extra burden on HP overlays in the proposed zoning code update versus the current zoning code.  Valid protest petitions against proposed HP district zoning map amendments would trigger a 75% super-majority approval by the City Council, the same as they do under current code, and the same for HP overlay zoning map amendments as for any zoning map amendments.

In regards to the 100% - we are talking about INITIATING a public / legislative process. If you require 100% approval before you can even initiate a public discussion, nothing can ever occur.

HP overlays are not the same as the proposed Residential Character (RC) or Plan-Based (PB) overlays.  It doesn't take 100% approval to initiate a public discussion of a zoning map amendment.  In the proposed zoning code update, property owner-initiated applications to establish or expand the boundaries of an RC or PB overlay district would be required to be signed by 100% of the owners of property within the boundaries of the proposed overlay.  But the City Council or the Planning Commission could initiate proposed zoning map amendments with 0% approval of the owners of the property within a proposed RC or PB overlay.  In the case of HP overlays, the City Council, the Planning Commission, or the Preservation Commission could initiate HP district zoning map amendments with 0% approval of the owners of the property within a proposed district.

If our representative democracy worked like that, it would fail.

I'm not familiar with the procedures of the City Council, but I'm guessing a simple majority of a quorum at a regular or special meeting, or perhaps even a Council committee could initiate an overlay zoning map revision, with absolutely no input at all from the owners of the property involved.  It wouldn't take all nine (or 100%) of the Councilors to approve the initiation of a public discussion about a zoning map amendment.

[Bamboo World]

Covenants cannot achieve the same thing bc enforcement requires individual lawsuits / legal action. That's a lot different than city code enforcement.

As I remember, at a zoning code update public meeting at All Souls church earlier this week, an example was given about what a Residential Character (RC) overlay district could accomplish.  In the example, the underlying zoning was an R district requiring a minimum 30 foot front yard setback.  But existing houses had been built to a 35 foot setback, with aligned facades.  In the example, it was supposed that the neighbors might cherish the 35 foot existing setback and want to maintain it.  To achieve this objective, the property owners could initiate an RC overlay zoning map amendment process, with 35 foot setbacks required in the proposed district.  

I'm paraphrasing a little, but that was the essence of the example:  an RC overlay district requiring a minimum 35 foot front yard setback imposed on an underlying base zoning district requiring a 30 foot setback.

Having all houses in an RC overlay district set back a minimum of 35 feet instead of set back a minimum of somewhere between 30 and 35 feet might be important to property owners in the district, but I doubt if it would be important elsewhere throughout Tulsa.  This is something restrictive covenants among neighbors could establish.  I'd rather not see scarce and finite tax dollars spent on something as silly as requiring 35 foot front yards versus requiring front yards in the range of 30 to 35 feet.  The City doesn't have the resources to enforce the existing HP districts, let alone future RC and PB overlays.

For people concerned about 35 foot front yards versus front yards ranging from 30 feet to 35 feet, covenants would be better than RC overlay zoning.  Initially, all the neighbors could say, "These 35 foot front yards are truly the defining characteristic of our area.  Having 35 foot front yards is really important to us.  But the underlying base zoning only requires 30 foot front yards, not 35 foot front yards.  The possibility of someone building a new house or an addition to an existing house resulting in a 34 foot front yard greatly concerns us.  We think that a 34 foot front yard would destroy the character of our neighborhood.  Let's take some action to prevent anyone from creating a 33 or 34 foot front yard, or even worse, a 32 or 31 foot front yard."

Then, they could indeed take action.  They could agree to a covenant requiring 35 foot front yards.  Such covenants are common.  With 100% agreement, they'd know what they were promising to each other.  When they sold their properties, the new owners would be agreeing to the 35 foot front yard covenant with eyes open.  If potential buyers didn't like the covenant, they could look for property elsewhere.

And, yes -- if and when someone tried to build a house with a 34 foot front yard instead of 35 foot front yard, the neighbors could hire an attorney and start a legal process to enforce the covenant.

An RC overlay would be a worse idea for the City as a whole, because most Tulsans would not care one iota whether any house in any neighborhood anywhere within the city limits had a 34 foot front yard instead of a 35 foot front yard.  But, if such an RC overlay was approved by the City Council, and someone tried to build a house with a 34 foot front yard instead of a 35 foot front yard, then a neighbor could complain to a code enforcement official, initiating a legal process of abatement.  Such legal processes can drag on for months, even years.  In my opinion, that's not a productive way for the City to spend its time or money.  

[TheArtist]

I don't think your going to get an "after the fact", as opposed to "before the neighborhood is built" covenant in place, that has any meaning if you have to require 100% of the people to agree.  Not gonna happen. So that means of getting something done might as well not exist.  

Can you cite an example where a neighborhood in Tulsa has ever put in a covenant that is more restrictive than the underlying zoning where 100% of its members, plus people around it, agreed to it?

[Bamboo World]

Can you cite an example where a neighborhood in Tulsa has ever put in a covenant that is more restrictive than the underlying zoning where 100% of its members, plus people around it, agreed to it?

First, people around a neighborhood with a self-imposed covenant are not required to agree with it.  Only the property owners within the neighborhood itself are bound by the covenant, not people outside the neighborhood.

Second, I'll cite an example Chris Halliwell reported about Peaceful Terwilleger Acres.  I didn't research the abstracts of title for that particular neighborhood, so I'll take Chris's report as accurate.  In brief, quoting Chris's report:  "[Circa 1957], in response to a lot split, area neighbors joined in a covenant agreement to preserve the neighborhood's character by providing that only single family homes would be permitted on the then-existing lots."

[TheArtist]

First, people around a neighborhood with a self-imposed covenant are not required to agree with it.  Only the property owners within the neighborhood itself are bound by the covenant, not people outside the neighborhood.

Second, I'll cite an example Chris Halliwell reported about Peaceful Terwilleger Acres.  I didn't research the abstracts of title for that particular neighborhood, so I'll take Chris's report as accurate.  In brief, quoting Chris's report:  "[Circa 1957], in response to a lot split, area neighbors joined in a covenant agreement to preserve the neighborhood's character by providing that only single family homes would be permitted on the then-existing lots."

Did 100% of the property owners agree with it?

[Bamboo World]

Did 100% of the property owners agree with it?

I presume yes, 100%.  Again, I haven't researched the individual abstracts of title, but I don't think it would be legal to bind any property owner to a covenant if the property owner didn't agree with covenant.