by Jim McCarthy, August 21, 2016
(note: please see original document here which includes source footnotes.)
The Flagstaff Board of Adjustment held a hearing on August 17, 2016 to determine if the city correctly interpreted the zoning code for The Hub. The hearing was not about if we dislike the Hub, it was a quasi-judicial review of the technicalities of the zoning code.
It might seem reasonable to use “T4” as shorthand for the Hub zoning parcel. Unfortunately, this can lead to confusion because there are several T4 zones.
The zoning for the eastern Hub parcel is T4N.1-O. (The 1 is bolded here to stress its importance.) The allowable building types for this transect zone are defined in the Flagstaff Zoning Code, Paragraph 10-40.40.070, Table C, “Allowed Building Types.”
None of the listed building types allow a building similar to the Hub. The developer wants a Commercial Block building, which is not listed in the controlling table. A different T4 zone, T4N.2-O, allows Commercial Block buildings.
At the hearing, attorney Bill Ring discussed where, and where not, Commercial Block buildings are allowed. These massive buildings are not allowed in T4N.1-O, the Hub zoning. But, the developer contended that this is not binding because Table 10-50.110.030.A lists T4 as “allowed” for Commercial Block buildings. This confusion likely contributed to the Board voting 3:2 against the appeal.
The developer’s reference, Table 10-50.110.030.A, does not give the specific zone, but only a general section of the code, T4. The “Building Types Overview” is a list of building types that may or not be specified where the requirements for a specific zone are defined. It lists T4; there is no such zone on the zoning map. There are map designations such as T4N.1-O, but not T4. There is no T4 zone defined in the code, only designations such as T4N.1-O and T4N.2-O.
Saying that T4 means T4N.1-O is like saying that Chevrolet means Corvette. Some Chevrolets are Corvettes, but some are Impalas and some are Suburbans. Likewise, some T4’s are T4N.1-O and some are T4N.2-O. An Impala is not a Corvette; a T4N.2-O is not a T4N.1-O. When enacting the zoning code map, the city specified T4N.1-O, but The Hub wants to deliver a T4N.2-O. They want to deliver the wrong Chevrolet.
The table listing T4 as allowable for Commercial Block buildings includes the meaning that it is allowed for some T4 zones, but not necessarily for all T4 zones. The T4 listing is general. The tables that list the allowable uses for T4N.1-O (Paragraph 10-40.40.070) and T4N.2-O (Paragraph 10-40.40.080) are explicit, clear, and precise when listing “Allowed Building Types.”
It is interesting that Commercial Block buildings were not allowed in any T4 zones until February 16, 2016. At that point, city council added several building types for T4N.1-O and several additions (including Commercial Block) for T4N.2-O. The change document also discusses the relationship between Table 10-50.110.030.A and the Allowed Building Type tables, again showing Commercial Block being added to the one zone but not the other. It is apparent that City Council made a precise and deliberate decision; Council deliberately allowed Commercial Block for T4N.2-O and not for T4N.1-O, the Hub zoning.
Therefore, Commercial Block buildings are not allowed in Zone T4N.1-O. The Zoning Code does not authorize The Hub to build a Commercial Block building on the eastern part of the site.
On another point, the developer contended that since the T5 part of the parcel is proposed to have ground-floor commercial, even though the T4N.1-O part of the parcel would not, that the requirement for ground-floor commercial in the T4N.1-O segment is met. This is absurd.
If this were a valid concept, then any characteristic of either zoning parcel could be attributed to the other parcel. This would in effect negate the whole concept of zoning that council enacted.
When council recently rejected the proposed switching of the T4N.1-O and T5 segments, it was implicit in that discussion that where the lines are drawn matters, and that each segment must meet its specific requirements. If this were not true, then the whole council discussion, including the developer’s presentation, would have been completely unnecessary and inappropriate.
I will not now take the time to evaluate the compatibility-review requirements, although these requirements should be significant. Even without that discussion, I conclude that:
- The Hub is not authorized by the Zoning Code to build a Commercial Block building on the eastern part of the site,
- and that even if it were authorized, the need for ground-floor commercial is not being met.
- Each of these errors is a violation of the zoning code independent of the other.
- Therefore, I believe that this case should be taken to Superior Court so that the requirements of the Zoning Code can be enforced.
There is an additional interesting point that likely does not affect the legal technicalities of the Hub appeal, but is related. When the Hub tried to get a zoning change in February 2016, it was portrayed as a proposal to switch the T4 and T5 zones to make the Hub a better project. Actually, the proposal also included changing T4N.1 to T4N. 2.
As discussed above, that change (in combination with the zoning code changes enacted by council that month) would have allowed a Commercial Block building, while T4N.1 does not allow that building type. It is fortunate that a super majority requirement was established by adjacent property owners filing the appropriate petition, and that the zoning changes were rejected by council. If the zoning changes had been approved, there would be no basis for the appeal of the Hub project.