In my experience observing city hall for more than four decades, Vince DeLeonardis is unquestionably the best City Attorney we have ever had. Full disclosure: I consider him to be a friend and I feel fortunate. With that said, I have to take exception to the defense that he offered at the February 4 City Council meeting of the Camiros draft UDO proposal for UR-3 to reduce lot size minimums from 6,600 square feet to 5,000 square feet
To my mind, a proposed change to zoning for a district needs to have a very, very compelling reason if the people in the neighborhoods affected oppose it. I do not think the arguments put forward met this threshold.
Here are the arguments point by point:
1. Non-compliant parcels and “right sizing”
Vince offered the following statistics regarding the properties in UR3. According to his calculations there are 1475 parcels. This is much less than the over three thousand I had originally understood. Knowing Vince, I will accept his number.
Of these he told the Council that only 341 meet the currently required minimum lot size and minimum lot width for the UR3 zone.
351 meet the required lot width but not the lot size.
119 meet the required lot size but not the lot width.
664 meet neither the lot width nor lot size.
He told the Council that this means most of the lots in the zone “do not accurately reflect the very parcels it [the zoning] is intended to regulate.”
Using the language of Camiros, he argued that the zoning needs to be changed to “right size” the parcels. He told the Council this would “bring a higher level of conformance.”
A. The Data Offered By Camiros Fails To Provide An Accurate Assessment To Determine How Many Parcels Would Actually Go From Non-Conforming To Conforming.
Vince’s analysis, based on the Camiros data, fails to address all the factors that would make a parcel “conform.” Lot size and lot width are only two of many regulations that determine conformity.
The history of the neighborhoods in UR-3 goes way back. Most of the homes built on the parcels in UR-3 predate the establishment of any zoning. These homes were built without regard to the idea of setbacks. Homes were constructed on plots wherever builders decided to put them. Chris Mathiesen has pointed out that the zoning map for the district shows a patchwork of parcels of all different shapes and sizes. He offered that the only way you can describe them is that they are uniformly different.
An architect who has been involved in city real estate for decades told me that non-conforming setbacks are ubiquitous. He was highly skeptical as to what the impact would be of addressing non-conformity by instituting the changes called for by Camiros. He was reluctant to estimate how many homes would still violate the setbacks, but he told me that they would be substantial and that without taking an inventory, which would be a major endeavor, no one can legitimately estimate how the proposed changes would impact the inventory of conforming properties. He called the numbers I showed him, “cherry picked.”
Conspicuously missing from Vince’s analysis, then, is any data on how many homes would remain non-conforming even if the new minimum lots sizes and lot widths were adopted.
Even if we exclude all the other zoning restrictions on the parcels in UR3, using his numbers, the proposed changes would raise the conforming percentage to 67.9%. The problem is that he admits that approximately half of the 67.9% do not meet the current lot width requirement. He does not offer how many would conform regarding lot size with the proposed changes. This would still leave the district a long way from the goal of bringing parcels into compliance. Now consider that many of these same parcels will still be non-conforming due to other zoning restrictions.
It is clearly impossible, based only on the Camiros data, to determine how many parcels can be brought into conformity. The obvious questions to ask is, “What percentage of parcels would need to be brought into conformity to be worth rezoning?” Would it be 60%? 65%? Was the decision to go with 68% just arbitrary?
And what is the value, in and of itself, of achieving more conformity? The owners of the parcels can sell their property and borrow on it in spite of the fact that it may be non-conforming. If they need to alter the footprint of their property, to the extent that the change does not create problems for their neighbors, they can pretty much be assured of securing a variance from the Zoning Board of Appeals.
How does increasing the number of conforming properties that currently exist provide any value to the neighborhood?
B. “Right Sizing” Is A Nebulous Concept And Not A Standard
Vince draws on Camiros’ appealing phrase, “right sizing” in describing the proposed reduction in lot sizes.
I did a google search on the meaning of “right sizing” as it refers to zoning. The only item that came up was an article about Detroit’s effort to write off major areas of their deteriorating city and focus development on the rest. With respect to Camiros it is a rather squishy term with no clear definition or standard.
The current standards for zoning in UR3 have been in effect for nearly fifty years.
What has never been addressed is why were the standards of 6,600 square foot minimum lot size and other related regulations established in this zone fifty years ago? A city’s history is important. I would think that it would be axiomatic that the first step in considering whether to reduce lot sizes would be to determine why the existing ones were originally established. I think it is possible to assume that the people who framed these standards fifty years ago believed they were “right sizing” the district. Surely they did not arbitrarily select these numbers. While it is unhelpful to be blind to change, it is important to draw from the past when we make decisions today.
It would be helpful if the Planning Office could determine why the standards they are seeking to change were adopted in the first place. Surely this is a reasonable question to both ask and answer.
I put this question to a friend who is a local architect with many years of experience here in the city. He speculated that they may have wanted the neighborhoods to be less dense. Greater setbacks and larger lots would maintain the basic character of a core neighborhood but allow for a more open feel.
C. Why Do We Want To Promote Greater Density In UR3?
Vince argued that the change in lot size would have little effect on density because there was limited land left to subdivide. I will address the data he used later.
The reality is that the UDO draft calls for a change in land use policy. If you reduce the lot size and also reduce the required set back you are promoting larger houses on smaller plots.
Anyone who follows the real estate industry is aware of the trend in “tear downs.” All over town we can find examples of tearing down an existing house to build (usually) a bigger house.
The reality is that there is very little land left in UR3 that is not developed and what is left makes building on these parcels a challenge.
With few available vacant lots, the pressure to tear down existing buildings and replace them with new construction can only intensify. Reducing lot size and reducing setbacks will now make existing parcels more attractive to developers.
How much more interest will there be in tearing down houses on these small lots? I don’t know.
What I do know is that before you reduce lot size and setbacks it seems important to consider what the impact of this could be on tear downs. Such analysis would need to consider that a city has a very long life and that this analysis would have to consider the long term potential for a change in density. Regrettably, Camiros never addressed this.
It is not an academic exercise or a frivolous thought. The failure of Camiros to even acknowledge this issue let alone attempt to factor it in raises grave questions about the rigorousness of their work.
2. Why Count Only Subdivides?
Vince addresses the potential impact of the change by citing a statistic from Camiros. He asserts that under the existing 6,600 minimum lot size it would be possible to subdivide existing land into forty parcels. If the minimum were reduced to 5,000 the land could yield one hundred and thirty parcels. That is it could create an additional ninety parcels. He argued that since this is a small percentage of the total lots in the UR3 district its impact would be minimal.
A. It appears that Camiros was selective in choosing which data to use in assessing the impact of reduced lot sizes. It seems the data was chosen to support their recommendation rather than to accurately address all the potential building options that the reduction of lot size would make possible.
Subdivisions are defined as the dividing of an area of land into two separate parcels.
By dividing 5,000 square feet into an area of land rather than 6,600 square feet, you are going to come up with a larger number of lots so I will accept that ninety more plots could be created should this UDO policy be adopted.
But wait. What about the fact that in addition to subdivisions there may be individual vacant lots that are 5,000 square feet. In fact there may be lots that are under 6,600 square feet that are vacant. This means that with the new standards larger houses may now be built on smaller plots on parcels that cannot be subdivided. Would anyone argue that building on these lots would not have an impact?
Again, it seems axiomatic that the development of these parcels will contribute to greater density not just in terms of the number of buildings that may increase in a given area but in terms of the feel of the neighborhood as larger structures appear with less open space on a plot and closer to their neighbors. Why are these parcels not included when determining the impact?
As noted earlier there is the real possibility that when allowed to construct larger homes on smaller parcels tear downs may become more attractive leading to greater density.
B. It Matters Where These Subdivisions Are
It may be that these parcels that can be subdivided are evenly spread throughout UR3. This would minimize their impact. But what if they are not? Because the number of sub dividable lots was determined through modeling and not through an inventory of existing plots, we have no idea where they are. In fact, if numbers of them were located in specific areas, they would have quite an impact on the immediate neighborhood.
3. One of the prime reasons offered by Camiros for reducing lot size and setbacks was that it would decrease the need for home owners to apply for variances to the Zoning Board of Appeals. They argued that variance applications are burdensome in terms of money for attorneys and in terms of time for the home owner.
In support of this it was noted that UR3 comprises only 13% of the parcels in the city but between 2010 and 2019 they generated 27% of the applications for variances.
A. I inquired of Vince and Deputy-Mayor, Lisa Shields, what were the actual number of applications as opposed to per centages. They were kind enough to respond giving me the total number for the decade which was 103. That number would represent an average rate of applications for each year of approximately ten. By month it would average less than one.
Among these 103 applicants there would have been builders as compared to homeowners. Judging by the new construction in UR3 they would have to represent at least a modest portion of these applications. So in terms of homeowners seeking variances, the number of applications would be even lower.
Having observed the Zoning Board of Appeals, homeowners with modest variance requests often appear without lawyers and uniformly receive a sympathetic review and determination from the ZBA.
I spoke to Chris Mathiesen who served as the ZBA’s chairman for seven years. He told me that the ZBA easily handled the applications it received. He did not see that there was a problem that needed to be addressed.
While they represent a higher proportion than other districts that in, and of itself, does not necessarily constitute a problem.
The more troubling aspect of this proposal is that no matter what the size and width zoning requirements, builders can be expected to seek variances to build the most house they can.
It is very possible that reducing the required lot size might create even more variances as builders struggle to construct projects in even less space.
Reducing the lot size and setbacks effectively moves the goal posts. Instead of starting at 6,600 square feet to negotiate with the ZBA they will start at 5,000. The same thing goes for the reduction in setbacks. This will almost certainly lead to even smaller lots.
On the positive side
Vince pointed out that the change in zoning would decrease the area allowed for impervious surfaces from 75% to 70%. This would potentially modestly minimize the problem of run off. Aside from the problem of negatively impacting the neighbors, the more porous land we have, the better the water quality will be for our lakes and streams. The earth acts as a kind of filter.
The building height limit will be dropped from sixty feet to forty feet. This strikes me as an eminently excellent idea.
Let’s Make It Better
While I have been frustrated by the failure to date to provide an annotated document that compares the current standards to the proposed standards in the many areas the UDO addresses, I know that the Council listens as does Vince. If our arguments are sound and they will make the UDO better I continue to believe that the UDO will be amended to address public concerns.