Nov 17 2013

Zoning Change Proposal Bypasses Voters

Counter to the City Charter, using a Conditional Use Permit process to add apartments rather than securing voter approval opens the door for zoning changes throughout Piedmont. –

At its meeting on Monday, November 18, the City Council will consider a proposal by the City Planning Department to make a significant zoning reclassification in the City without voter approval. 

The Piedmont City Charter, the backbone of Piedmont’s existence as a City, would be circumvented by allowing multifamily apartments in Commercial Zone D without voter approval. The zoning change by ordinance would provide a mechanism called a Conditional Use Permit (CUP) to allow the apartments.  All apartments granted a Conditional Use Permit in Zone D would be considered permanent.  The zone reclassification from Commercial to Mixed Use runs counter to the City Charter, which stipulates only voters can reclassify zones.  The Council approved General Plan and Housing Element language is relied upon by staff to preempt voter rights.

Why Piedmonters might be concerned? 

Rather than the voters deciding, the Council will have set in place an established mechanism and precedent that could allow uses in all Piedmont zones to be changed by Council amendment of the City Code. Public property, including parks and single family residential properties, could potentially be impacted by a simple code/ordinance change rather than the Charter required voter enactment.

The currently allowed uses in Zone D are commercial or single family residential. There is no property right to build multifamily apartments in the zone.   The City Charter states:

“The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof;”  City Charter 

Recently, during hearings on constructing sports fields in Blair Park, some proponents including a council member threatened opponents of the project with low-income housing in the park if the sports complex failed. Under the CUP mechanism if established as precedent, the now restricted use of public property could be changed through the City code rather than by the voters in order to allow construction of an apartment complex in the park or on other public properties.

The same Charter bypass principle would apply to single family residential zones. By changing the zoning code and allowing apartment buildings per CUP in the residential zones, the Council would bypass the Charter and thwart voters’ right to decide.

Both the Planning Department staff and the City’s consultant expressed concern about taking the zoning change to the voters. 

The CUP process is an attempt to avoid a voter say in zoning changes knowing the addition of multiple family residential to the current single family residential requirement in the zone might not be approved by voters.

The Charter requires a citywide vote for zoning map changes, which constrains the development of a variety of housing types, particularly high-density multi-family housing.” 

Miller further advises that, “… it is unlikely that voters would approve the rezoning of land from single-family to multi-family use.”  Barry Miller, Piedmont’s Zoning Consultant advised the City

An example of Piedmonters voting on Charter required issues is the February 2014 Election ballot measure on employee pension funding and borrowing money at currently reduced interest rates to pay down a part of the City’s pension obligation. The issue of the proposed zoning change, however, did not come up in time to be placed on the same ballot.

The staff proposal using the CUP process relies on Council approved plans rather than a Charter compliant public vote to achieve the goal of increased housing density in Piedmont, particularly for low income and affordable housing units.

Depending upon the conditions for allowing apartments in zone D commercial, Piedmont voters might not oppose a zoning change, despite the minimum density requirement of 12 dwelling units per net acre.  However, in a neighborhood such as the Civic Center already impacted with parking and traffic, apartments might be a concern.

If the City Council approves the zoning /code change, only legal action by property owners or voters could enforce the City Charter.

The zoning change scheduled as a first reading of 140 pages of alterations to Piedmont’s Chapter 17 of the City code presents a reading challenge to citizens and the Council.  To read the staff report and actual language in the ordinance go to:

4 Responses to “Zoning Change Proposal Bypasses Voters”

  1. It appears that staff is presenting these changes as new uses permitted within the commercial zone rather than a reclassification of this zone to mixed use. A zone reclassification would require a vote of the community. That is unfortunate as this new use will require substantive changes to the planning code and design review guidelines. Having that confirmed by a vote of the residents would be better policy. And in a planning sense, it seems that a reclassification is warranted. Mixed use is defined as a mix of commercial and residential uses, uses which are classified as zones throughout our city. Why would permitting both of thes “zones” to occur within one area not lead to a new zone? If the permitted use of a zone defines its classification, then why not reclassify this zone?

  2. “Mixed-Use Commercial/Residential” is one of the proposed additions to City Code Sec 17.8.1 (Zone D). The relevant question is whether this addition constitutes a new use of Commercial Zone D which is (in part) defined at Sec 17.8.1: “Commercial uses which will serve the residents of the City are those uses which residents would be expected to use on a regular basis. They do not include uses which would be expected to draw the major portion of their clientele from outside the City of Piedmont and the surrounding area.” As apartments are residences and not retail outlets, I doubt that new apartments would be a “regular basis” use by existing residents. And likely most “clientele” of any new apartments would be drawn from outside the City.

    As a practical matter I doubt anyone will file suit in this matter and Council will approve. The upside is that more potential units will be created and help satisfy the State’s “one size fits all” housing mandate in Piedmont.

    Of related interest, other ad hoc zone reclassifications have likely occurred. In 2005 City Administrator Grote allowed public adult school classes at Kehilla Synagogue, a “church” as defined in residential Zone C. Mr. Grote wrote to Kehilla that this public school use could continue unless residents complained. But residents were never informed of their rights as the letter only came to light at the 2009 Kehilla CUP hearings.

  3. If you like your current zoning laws, you may keep them, PERIOD!!

  4. At Monday’s meeting, the City Attorney did say that staff was proposing a new use and not a zone reclassification but did not say that reclassification was prohibited. Why create a new zone? To provide better control over city development. There is some precedent for this already in town – we have a single-family residential zone and a multi-family residential zone, different uses that require separate zoning. Likewise, designating a new mixed use zone for the Civic Center and on Grand from Linda to Ace while maintaining the Commercial Zone could preserve those existing commercial operations that so many Piedmonters use. As staff so often says, residential use is the “highest, best” use of land in Piedmont so by converting our entire commercial zones to mixed use, will Ace and Shell (two of my favorite places in town) be redeveloped to Il Piemonte 2 and 3? Hard to say but that’s now possible under the staff proposal.

    Rick’s comments raise another issue that is a subject of this ongoing Chapter 17 review – what type of commercial uses will be granted CUPs under this new use? New uses are supposed to be “primarily” of use to residents of Piedmont. Apparently staff does some vetting of proposed new uses and has steered a dress shop and obesity consultants (pending) to new CUPs. There was considerable support for more retail in Piedmont in the 2008 General Plan Survey but that was for cafes, restaurants, bookstores, etc., so perhaps there needs to be a better definition of permitted uses in Chapter 17.

    And where will these new uses be? Staff, local architects and some council members have indicated that there needs to be two standards for development in this new mixed zone – a higher density (100% lot coverage, no off-street parking) in the Grand Avenue zone and lesser density (80% lot coverage) in the Civic Center zone. Again, there was support for new retail in the 2008 General Plan survey but that was for walkable destinations in the center of town. Lower Piedmont has several walkable commercial options whereas central and upper Piedmont do not. It seems greater incentives to the type of businesses Piedmonters want should be proposed for the Civic Center rather than the Grand Avenue corridor.

    Councilman Wieler railed against this proposed mixed use zone, calling for its placement on the ballot. That can still be done and if he makes that motion at the second reading of the ordinance on December 2, I’ll second. His point was to send a message to Sacramento but in truth, there is support for mixed use in Piedmont – more retail and smaller, rental units for “aging in place” residents are supported by many Piedmonters. If not placed on the ballot, then Piedmonters need to engage in the ongoing Chapter 17 review and attend the public hearings. That will be facilitated by stand-alone hearings on the revisions (most hearings are tacked onto Planning Commission meetings, sometimes starting after 10:00 pm) and placement of proposed revisions on the city website well in advance of the hearings. The next round of Chapter 17 revisions will address design review guidelines, everyone’s favorite. I recommend Mr. Miller and others interested in commenting on these guidelines e-mail Kate Black and get on the distribution list for these hearings –

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