Thursday, February 17, 2022
This post is admittedly probably of interest only to Boise folks...
Boise is in the process of overhauling its zoning code for the first time since 1965. Below is the core of comments I submitted today on the draft code revision.
I am writing to offer comments on the proposed zoning code rewrite draft recently released by the city.
By way of introduction, I am a law professor at the University of Idaho College of Law in Boise where I teach courses on property, land use, and real estate. I am also the author of West’s Land Use and Sustainable Development Law, the former editor of the American Bar Association’s Journal of Affordable Housing & Community Development Law, and the author of over 40 articles on land use subjects. I also recently completed a casebook on Idaho land use law. In addition, I am trained as an urban planner having received by master’s in city and regional planning from U.C. Berkeley and am a member of the American Institute of Certified Planners (AICP). Perhaps most importantly, I am also a former Planning & Zoning Commissioner.
To the extent they are helpful, below are several thoughts I had both directly related to, and ancillary to, the released draft. Hopefully they will be of some use.
First, a revision of Blueprint Boise is understandably not within the scope of this zoning code re-write. However, as the comprehensive plan for the city, Blueprint Boise play an important role—as required by state statute—in whether such discretionary permits should be granted. The problem with Blueprint Boise, however, is that it is not just the text of the original document, but also the incorporation of nearly fifty additional plans that are not integrated into the plan and the relevance of which is not immediately known. To the extent that discretionary permits continue to analyze the comprehensive plan, as they must, a better way to access all of the documents integrated into Blueprint Boise is essential to make the document usable in the discretionary permit decision making.
Second, there are several procedural measures in the land use decision making process that routinely cause confusion that I suggest this rewrite should address. Among these is what constitutes findings in staff reports that are ultimately the basis for the decision of the Planning & Zoning Commission. City staff have tried several approaches over the years, but I believe all of them have left the city needlessly open to litigation and uncertainty about the commission’s decision. At present, the staff write both a “reasoned decision” summary for adoption by the Commission and they also write an analysis of the relevant elements in the granting of a discretionary permit. In evaluating the elements, the staff also provides analysis that often differs from the Commission’s discussion and also is not encapsulated in the reasoned statement. This presents considerable confusion as to what the actual findings of the Commission are. I suggest that the city use this process to address these structural decision making concerns. Most cities of Boise’s size have a staff report for discretionary permits that consists of two parts: an analysis section and a draft motion with proposed findings. When the Commission debates approval of the permit, they then are debating and adopting the motion and its findings, and not the analysis. This is a much cleaner legal process and one that I also believe would help the Commission do its job better. There is also considerable confusion about what happens when the Commission denies a project and it then goes to city council. The city council routinely speak of rejecting the Commission’s decision and errors they find in that decision. This is not the standard of review. Rather, the city council needs to be better instructed that they are hearing the application anew (de novo, as lawyers would say) and not in a posture of determining whether there was fault in the Commission’s decision (an arbitrary and capricious standard, as the lawyers would say). This also needs to be clarified in this process.
Third, Boise’s current structure of planning decision making bodies encourages project applicants to play the decision makers against each other. Routinely in my time on P&Z we were told by a project applicant that a certain decision would be made in design review or was a question for historic preservation. Boise has no unified land use permitting structure and this harms overall project decision making. Now is the time to evaluate whether this decision making process makes sense for the next generation. I suggest that it doesn’t. Instead, I would suggest that there be some way that the various commissions relate to each other and make a unified decision. That could mean that all decisions by the Historic Preservation Commission and the Design Review Committee are tentative until approval by the Planning & Zoning Commission, or there is some other oversight board that consists of both staff and commissioners. In any case, it should be clear to all that project applicants utilize the bifurcated nature of the decision making process to prevent meaningful review by the city and something should be done to address it. Cleaning up this process doesn’t have to necessarily create more busy work for project applicants. If done right, it should actually benefit project applicants and the city by providing a more integrated decision making apparatus.
Fourth, because of the outdated nature of the code, the city has increasingly utilized administrative review processes for more and more permits. This should be stopped because it leads to decision making that has at least the appearance that it could be abused. The notice processes are also often dubious. The code needs to be revised to eliminate these administrative processes. If the city intends to give the permits all the time, then the use should simply be permitted. On the other hand, if the city wants more discretion, it should be given the usual process of the P&Z hearing. A third approach would be to utilize a zoning administrator, which would be a staff member that could hold individual adjudications that could be appealed to the P&Z Commission. Also, the zoning administrator could issue binding interpretations of the zoning code where there is ambiguity that would clarify how the staff will define the difference between permitted uses and discretionary uses.
Fifth, the city has made it difficult for community members to track projects. As part of this process, the city should make it easy for the community to engage with projects in their neighborhood. With today’s planning software, access to applications is easy, if the city wants it to be. However, Boise has made it purposefully difficult for individuals to meaningfully track development in their community. That should stop. Share the data easily as so many other cities do.
Sixth, the city has revised its code to permit issuance of use variances. Idaho statute only permits the granting of area variances. This is ultra vires and the city needs to change its variance criteria to ensure compliance with state statute.
Seventh, the proposed use districts do not address a major issue that arises in the older neighborhoods. In the older neighborhoods, many homes have rear garages or storage sheds. Prior to the current zoning code, many of these rear structures were permitted at the lot line; however, current code provisions require a 5-foot setback. On small lots in places like the North End and the East End, this is a significant difference. It was also a consistent source of variance applications while I was on the Commission. Today, the city has addressed this issue through the administrative variance process and by permitting the use variance. As noted above, however, both of these are highly problematic processes. Instead, I suggest working with the communities to discuss how rear yard structures can be retained at or near the lot line in a more meaningful way that is also in line with urban trends.
Eighth, I would encourage this zoning re-write to more forcefully embrace residential development in those areas where retail strip malls are currently. Research increasingly shows that redeveloping retail strip malls has a remarkable capacity to address housing needs, and much more so that retrofitting single-family districts. For instance, one report by the Boston Metropolitan Area Council found that, "[i]f the top 10 percent of [retail] sites in each [Boston area] municipality were retrofitted to new mixed uses – an average of fewer than four sites per community – it could create 125,000 housing units," which is enough to close the housing shortage of what Boston needs to produce by 2030 (according to the report) to stabilize the market. The excellent report is here: https://storymaps.arcgis.com/stories/cb9bec551f9d48599f267f4ff6282906. As many urban successes stories, such as Copenhagen, have found over the years, linear development provides the most cost-effective methods of providing infrastructure. For instance, linear development permits bi-directional commuting, which lessens the transportation infrastructure burden. It also provides for lighter uses in between the development corridors, which can be used for parks and open spaces. Copenhagen successfully implemented this model, called the Five Finger Plan, which grew the city in five linear strips, which continues to give access to rural amenities in the spaces between the developed fingers. Boise could accomplish something like this in the areas where development is still forthcoming.
Ninth, I would encourage the city to think about more sustainability incentives than are already in this vision. For instance, there is little discussion here about subdivisions placed in the path of wildfire. Perhaps they could be required to be Firewise communities. There is little discussion about pathways in the foothills. Today, many such paths are “managed” by HOAs in a manner that is all too often exclusive. Such pathway discussions cannot be had on an ad hoc basis but can be required generally. Further, more should be done to ensure connectivity between subdivisions for automobiles, pedestrians and bikes. Again, these can be generally applicable requirements, but are almost impossible to impose on an ad hoc basis. Other issues to address could be mandatory tree canopies to address urban heat island effects, and incentives for xeriscaping or related reduced water landscaping.
Tenth, the retention of the planned unit development (PUD) structure worries me. Currently, most major developments are PUDs. While this would limit PUDs to larger projects, I believe that more should be required and mandated by the city to use the PUD process. I believe that should emphasize sustainability and resilience for those larger projects that have the ability to utilize scale to more efficiently assist with climate-related efficiencies. The current proposal makes sustainability measures one option of many; realistically, most developers will choose the amenities options. Instead, the PUD should require one of the the sustainability options (2)(a)-(b), and then an additional amenity option (2)(c)-(f).
Eleventh, there needs to be more discussion of how the city will prioritize the coming changes related to the energy revolutions now occurring. This includes addressing where to place an electric vehicle infrastructure to ensure that this transformation has adequate space within and throughout the city. Also, bonuses could be given on height to permit and encourage solar arrays.
Twelfth, the city should consider a “super-benefit” for a zero net energy development. Large-scale developers throughout the West have already made it evident that zero net energy suburban development is possible. Boise should encourage this kind of development through perhaps a “super-PUD” provision. I would especially encourage such relevance in existing urban infill sites, such as strip malls, that are challenging. It could also be relevant to greenfield development, too. While such permits may seem aspirational now, it moves the conversation about community expectations for impact on the environment that are relevant to the twenty-first century.
Thirteenth, I suggest open-sourcing housing developments that the city would permit without any discretionary permit. This has been done in other communities, and is based upon the work of Christopher Alexander, which acknowledges that each city has its own “pattern” of development. By encouraging the development of specific unit types, the city has a future in the kinds of units that are built. For instance, this could address the missing-middle housing issue by providing open-sourced housing development plans for smaller square-footage homes than are typically built in new construction. The city then plays a role in creating a developer community that can build that particular unit and thus drives the cost lower by creating scale even for infill projects.
Fourteenth, the city should consider conditions on any multi-unit building placed in an existing single-family district that would permit the new structures to only be used for primary residential uses. This would foreclose the teardown of single-family homes to be replaced with duplexes or triplexes that are then used for short-term rentals or other uses. The purpose of increasing density in single-family districts is to provide housing, and a condition to that effect simply ensures the continued residential, rather than commercial, use of the property to address today’s housing shortage.