Saturday, February 25, 2012

Jim Gotto explains his land use planning bills

Jim Gotto
Four bills, three of which are sponsored by Representative Jim Gotto, have been introduced in the state legislature that would curtail local authority over zoning and land use issues.  Several members of the Metro Council have signed a letter expressing opposition to the bills and the Mayor's office and various neighborhood groups have expressed concern. I recently set down with Jim Gotto and had an opportunity to learn more about these issue.
In a previous post I had summarized what the bills would do and said such a departure from current policy should not be passed without more debate.  There is going to be an opportunity for more debate. The bills in question are not going to be rushed through but are being sent to a special committee of the House for consideration along with other related bills.
Representative Gotto explains that these bills originated not with him but resulted from Lieutenant Governor Ron Ramsey’s statewide "Red Tape Tour" and they had Ramsey's full support . "These bills are fair and balanced," said Gotto, "they level the playing field for small business." 

Gotto is passionate in advocating for these bills. "These bills, if passed, will create jobs," says Jim. "They also reduce government intrusion.  One of the points I campaigned on was creation of jobs, not by government handouts but by reducing needless regulations, in effect getting the government out of the way and allowing the private sector to create jobs."

Gotto said that current "judge-made" laws allow a building permit to be easily revoked. "A person needs to know that a permit is worth more than the paper it is written on," he says. "These bills encourage business investment and job growth." 

He goes on to explain that current land use regulation discourage a person from investing or hiring because the next building permit a person obtains can trigger costly redesign of the property for aesthetic objectives.

"These bills protect property values and local tax revenue," he says. "By rezoning a property and making it nonconforming, the city has unwisely devalued an investment. If I know my property is safe and secure then I will have confidence to invest in my property and increase its value."

Jim also explained the importance of each of the three bills he is sponsoring and why each is needed.

(This is where this post really gets boring and unless one is a planning professional it is easy to get lost, yet to understand this controversy one needs to understand the specifics of the bill.  If you read this far, please labor on.)

To present as balanced a presentation as I can, I am posting a link to each of the bills so one may actually read the bill in full if one is so inclined and also see the full analysis prepared by the legislative staff which is an unbiased evaluation. Just click on the bill number and it will take you to a page where you may see the actual bill, a legislative staff summary and more. I am also going to try, as briefly and simply as I can to provide my own summary of the most important provisions of the bill and offer Jim's explanation. 

Currently the law says that if one has certain types of property being used for a certain purpose and the zoning is changed to make that purpose no longer  conforming to the new permissible uses, that one may continue to use the land for the  purpose for which it was being used prior to the zone change. Currently  the law says this provision applies to "industrial, commercial, or other business establishments that have a non-conforming use." This bill would make the law apply to all  "non-conforming property" instead of just  "industrial, commercial, or other business establishments that have a non-conforming use."

As an example of how this might apply, assume one had a multi-family building on a piece of land  which had since been zoned commercial and the property was destroyed by fire.  Under current law one could not rebuild; under the proposed law, they could. There are also other previsions which allow the owner to expand, and replace and redevelop the property as was permitted by the way it was previously zoned.  It also requires a notification of each property owner by certified mail of any proposal to make their property non-conforming, 30 days prior to a public hearing.

In explaining the need for this bills Gotto says that the 'grandfather'  statue for non-conforming property has been the law of the land since zoning laws were first enacted in Tennessee and the purpose was to prevent hardships to property owners when their property was made non-conforming.  In the last decade he explains, local governments have initiated large scale rezoning of corridors and this has created hardships for non-conforming properties. He also says that many times local governments have tried to interpret the law very narrowly saying the law applied to the use of the property but not the signs or structures on the property. 

"A perceived lack of clear definition in state law," says Gotto, "allows wide discretion, subjectivity, and arbitrary directives from local planning bureaucracies."  He says this bill would correct that. 

Basically this bill says that if you apply for plans approval and before they are approved the body you are applying to changes the rules of the game, they have to evaluate you on the basis of the rules that were in effect at the time you applied. Also, if you get a preliminary approval, that is good for 5 years.
Jim offered several examples of where people had jumped thorough the hoops to develop property and then opponents of the development had changed the rules of the game to kill the project. The Tennessee Supreme Court has even allowed "pending legislation" to stop development and Jim offered examples. One example was how Harding Academy was stopped from expanding by a historic overlay that went in place after Harding had already made substantial investments. Another example involved the Charlotte Avenue Church of Christ and how  a Historic Landmark Overlay was placed on the building in order to stop a sale of the property when at the time it was offered for sale there was no such historic overlay.

"This legislation makes it clear that the rules in place at the time of a building permit application are the only rules in force concerning that particular project," he says.

Basically this bill says that if someone has an on-site sign on their property and that sign existed prior to the current sign ordinance they can rebuild or improve that sign without complying with the new ordinance. 

Jim offered an examples of where business owners had been denied permits to replace the sign of a former tenant with the new tenant's name because Metro had declared that such a simple change constituted a new sign and had to comply with current sign regulations. 

When I first heard of these bills and read the Metro Council Staff analysis, my reaction was that these bills were an overreach of State Government that would restrict the legitimate right of local governments to make and enforce zoning decisions.  After reading the bills and the Legislative Staff analysis and talking to the sponsor, I am inclined to think these bills legitimately curtail an overreach of local government and protect legitimate property rights. Let the debate continue.

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