Walden Cannot Legally Approve Requested VC-1 Rezoning For Lines Orchids Site, 20-Page Last-Minute Analysis Concludes

“The Developer’s request is an affront to the Town Board,” Mr. Davis wrote. “It is insulting to the Town Board for the Developer to think that Board members can be so easily fooled.”

DATE:             October 2, 2019

SUBJECT:       Legal Analysis of Rezoning Request

At the September 10 Public Hearing, I made some abbreviated comments to the Board and at the conclusion of my remarks asked for permission to submit written comments which would be included in the record for the Public Hearing. The Board granted my request, and I am now providing those comments.

Background

LOP, LLC has filed a Rezoning Request asking that a proposed development on the Lines Orchids property in the Town of Walden be rezoned for what the Developer calls a Village Center.

The proposed development features a 44,000 square foot supermarket that the developer says will serve the 37377 zip code. That zip code includes the Town of Signal Mountain, Town of Walden, unincorporated parts of Hamilton County, and parts of Sequatchie County. This store is no neighborhood grocery. It is a Regional Supermarket.

The proposed Regional Supermarket is larger than the supermarket which the Signal Mountain Town Council unanimously rejected on June 6, 2018.

Additionally, the Proposal includes a large parking lot (220 parking spaces) in front of the supermarket, two commercial buildings consisting of around 10,000 square feet, and a fuel center.

Summary of Key Points

Over the past months, the Town Board has heard many good reasons why the Board should not approve the rezoning request.  This memorandum explains why the Board cannot approve the rezoning request.

The Board does not have to look further than the plain words of the Walden Zoning Ordinance to resolve this zoning matter. An objective review of the Ordinance makes clear that the Board cannot approve the rezoning request because--as a matter of law--the Board does not have the authority to approve the request.

The Board does not have the authority to approve the rezoning request for at least four reasons.

(1) VC-1 requires that a Village Center include a blend of commercial and residential areas into a pedestrian-friendly atmosphere. The proposed development fails to include a Residential element and therefore, the Board does not have the authority to approve the rezoning request.

(2) The proposal is not for a Village Center but instead is for, at most, a first piece toward a possible Village Center. VC-1 does not authorize a Village Center zone on a piecemeal basis and therefore, the Board does not have the authority to approve the rezoning request.

(3)  Section 4.05(e) of VC-1 does not grant the Board the discretion or authority to waive the 6 Requirements of the Development Regulations because the resulting plan could not then conform with the guidelines and intent of the section. Furthermore, waiving the Requirements would render VC-1 meaningless. Therefore, the Board does not have the authority to approve the rezoning request.

(4) The Walden Zoning Ordinance incorporates the Vision for the Plateau Plan. This means that the Village Center Regulation must be applied in such a way as to enhance and implement that Vision which provides for an orderly and cohesive development pattern. The proposed 44,000 square foot supermarket does not fit the development pattern of Walden and therefore, the Board does not have the authority to approve the rezoning request.

An explanation of these key points and others follows.

The Mission

Walden’s Mission Statement is set forth on the Town’s website:

In 1997, the Regional Planning Agency (“Agency”) and the Regional Planning Commission (“Commission”) prepared the Walden’s Ridge Plateau Area Plan (“Plateau Plan”). The Vision Statement for the Plateau Plan is identical to the Walden Mission Statement. (p.1) This Vision is the concept “under which all policies and actions would be based.” (p. 5) The Plateau Plan recognizes that the Vision “should incorporate important quality of life elements the community wants to see maintained as it grows.” (p. 7)

The Plateau Plan recognizes the “small town atmosphere with rural character” and states:

        Important parts of the community’s cohesiveness and identity are its small

town character, rural vistas, and green spaces. As the community grows and develops, it should maintain this character. Concern over the impacts of development must be addressed. (p. 8)

Walden Zoning Ordinance

The Town developed and adopted the Town of Walden Zoning Ordinance (“Ordinance”) in 2002--5 years after the development of the Plateau Plan. The Ordinance has been amended on numerous occasions. That Ordinance reflects the values expressed in the Vision. The Ordinance states in the General Purpose provision that: the Town enjoys a rural mountain character supported by scenic overlooks, creek gorges, woodlands, and pasturelands. The character of development is predominantly residential and small in scale. (p. 2)

The General Purpose provision then states that “This ordinance is also designed to enhance and implement the vision established in the Walden’s Ridge Plateau Area Plan...” and sets forth verbatim the language of the Plateau Plan Vision Statement. (Emphasis added.)

Thus, the Walden Mission Statement is identical to the Plateau Plan Vision Statement, and that Vision Statement is incorporated into the General Purpose provision of the Zoning Ordinance.

The Ordinance then states: “the Town of Walden sets forth the following purposes for the ordinance.…” (Emphasis added.) Those purposes include:

·         “To maintain rural character and small scale of development;

·         To protect and enhance property values;

·         To encourage harmonious and integrated development patterns that are economically feasible and are in harmony with the community...;

·         To discourage commercial strip development; and

·         To promote high quality development that...promotes materials and design consistent with the maintenance of Walden’s character as a rural and residential community.” (p. 2)

The Ordinance is clear and emphatic. The overriding purpose of the Ordinance is to “enhance and implement the vision,” to maintain a rural character and small scale of development, to ensure that development is in harmony with the development pattern of the community, and to preserve Walden’s character as a rural and residential community with small-town atmosphere.

General Purpose

The incorporation of the Vision Statement into the Zoning Ordinance General Purpose is critically important.

It’s equally important that the General Purpose provision states that:

            “This ordinance is also designed to enhance and implement the vision” of the             Plateau Plan. (Emphasis added.)

Thus, any interpretation and application of the Walden Zoning Ordinance must take the General Purpose into account.  Any application of the Zoning Ordinance must be consistent with the Vision and must “enhance and implement” that Vision.

Therefore, the Zoning Regulations, including the Village Center Zone (VC-1), must be applied in such a way as to enhance and implement the Vision.

As already noted, part of that Vision is to:

Significantly, neither the professional planners at the Agency nor the political appointees on the Commission recognized that the Vision was incorporated into the General Purpose of the Ordinance.

And, neither the Agency nor the Commission recognized that this General Purpose provision is unusual. It is unusual because it contains the Vision statement and provides that the remainder of the Ordinance must “enhance and implement” that Vision.

This requirement that the Ordinance enhance and implement the Vision is a substantive provision in the Ordinance.

Almost certainly, neither the Agency nor the Commission has encountered a zoning ordinance which incorporates a provision like the Vision and makes that provision a substantive part of the zoning ordinance.

Village Center Zone (VC-1)

Article 4 of the Ordinance, Zone Regulations, sets forth at 4.05 the Village Center Zone (VC-1). Section (a) of VC-1 establishes the purpose of this Regulation:

“Purpose of Village Center Zone (VC-1). The Village Center Zone is intended to blend commercial and residential areas into a pedestrian-friendly atmosphere where the proximity of residential housing to commercial enterprise does not detract from the quality of life of the residents. The Village Center should provide a local retail, service and civic center for the community.”

The purpose section is almost entirely devoted to stating the intention to blend commercial and residential areas and stating that the proximity of the two areas should not detract from the quality of life for the residents. The remainder of VC-1 explains how this blend is accomplished.

Section (b) lists numerous permitted uses for the zone, and among those uses are single-family dwellings, townhouses, loft apartments, inns, and bed and breakfasts.

Section (c) describes the “Accessory Uses” permitted for the zone, and the only such uses are “structures, and uses customarily incident to single family dwellings....”

The only fair interpretation of the purpose section is that the blend of commercial and residential is mandatory. Section (a) states that the purpose of VC-1 is the intention to blend the two areas. Note that section (a) says nothing about the authority to waive the Residential element. That’s not surprising because the purpose and intent of a regulation cannot be ignored, deferred, or waived. Such an action would amount to a nullification of VC-1.

The proposed development does not include any Residential element.

Nevertheless, the Agency incorrectly thought that it could simply waive the purpose and intent of the Regulation:

“Staff recommends waiving the Residential Area standard as long as the proposed condition [Report condition #1 limiting the amount of building area available for retail uses to 80%] is approved. If the condition is not approved by the Town of Walden, staff recommends denying waiving the requirement.” (Emphasis added. Report, p. 5, #5)

When one Commissioner asked during the August 12 Commission meeting why the Agency concluded that a residential use was not required for the proposed development, Mr. Bryan Shults (Agency Director of Development Services) replied:

“This is one component of an overall much larger area of a village center. This 15 acres is not the village center. It’s one component of that. We’re well aware that the next parcel may provide residential.” (Emphasis added. Commission audio minutes)

Later in the Commission meeting, Mr. John Bridger (Agency Executive Director) stated:

“So we acknowledge and given the size of this – and it’s not big. It’s only 16 acres. And we had quite a bit of discussion in the staff about whether this should be residential or not, and I think what we ended up with is we felt like that you could miss the residential piece as long as you had some of this on the total number of retail. [Here, Mr. Bridger refers to Report condition #1 limiting the amount of building area available for retail uses to 80%.] So you could have office or other non-retail oriented uses on the site with residential that could occur adjacent to this site.” (Emphasis added. Commission audio minutes) 

Although not entirely clear, it seems that Mr. Bridger is saying that the required blend of commercial and residential can be achieved by requiring that at least 20% of the commercial buildings on the site be used for office and non-retail uses and by hoping that the Residential piece may spring up at some point in the future on an adjacent site. 

The Agency and the Commission struggled mightily to justify omitting the Residential element from the proposed development. They apparently believed that they could waive, or indefinitely postpone, the Residential element in the hope that some form of Residential could occur in the future. 

At the Commission meeting, the Developer did not address the lack of a Residential element in the proposed development. 

Neither the Agency nor the Commission addressed the language in the purpose section stating that the zone is “intended to blend commercial and residential areas….” That failure is inexcusable. A regulation cannot be properly applied if a critical section is not taken into account. 

This failure by the Agency and the Commission undermines the conclusions of both groups. 

Both the Agency and the Commission got it wrong when they concluded that the required Residential element could be waived with the hope that the Residential element may spring up at some point in the future. 

Thus, section 4.05(a) requires a Village Center to have a Residential element, and that requirement cannot be waived or deferred to some uncertain time in the future. Because the Board has no authority to excuse compliance with section (a), the Board has NO CHOICE but to deny the request for rezoning. 

One Piece of the Puzzle 

The Developer’s Application is unclear on one fundamental point: is the proposal for a complete Village Center or only one piece of a Village Center?  At the Commission meeting, the Commissioners were clearly confused on this fundamental point. Eventually, the matter was cleared up by the following statements made at the Commission meeting. (All quotes are from the Commission audio minutes.) 

Shults: 

            “the site plan is just a conceptual illustration at this point.”

“This is one component of an overall much larger area of a village center. This 15 acres is not the village center. It’s one component of that.”

Ledford (Commissioner):

“I heard that this is part one or step one of building onto or creating a village center concept….” 

            “is this kind of a piece of a puzzle, so to speak, versus the whole puzzle?”           

Bridger: 

            Ledford asks Bridger: “So this is a piece of a puzzle?” 

            Bridger responds: “That’s correct.” 

Thus, the Concept Drawing does not show a complete Village Center but instead, shows only a piece of a Village Center. And, that piece is a far cry from a Village Center. The Concept Drawing is described by the Agency as follows:

“The site plan does not show a block layout. It shows a traditional suburban development with a large parking area in front of a building.”(Emphasis added. Report, p. 4) 

The Agency description is a nice way of saying: strip development or strip center. 

Thus, the Developer is asking the Board to declare a Concept Drawing of a strip center to be a Village Center. The Developer speculates that the rest of the Village Center will somehow spring up around the large supermarket at some uncertain time in the future. 

Of course, the Concept Drawing does not show where the other pieces of the puzzle will be. 

What specifically will the other pieces be?  

Who will build them? 

When in the future will they be built? 

Clearly then, the Developer is not asking the Board to approve a Village Center but instead, is asking the Board to approve something that may become a Village Center. 

Unfortunately for the Developer, the VC-1 Regulation does not authorize the Board to rezone as a Village Center a development that is nothing more than a first piece toward a possible future Village Center. 

Nothing in VC-1 suggests that one possible piece of a Village Center constitutes the Village Center contemplated by the Regulation. The drafters of the Regulation recognized the folly of permitting the “first-piece” approach and relying on hope and speculation for the rest of the Village Center. That is why there is nothing in VC-1 authorizing such an approach. 

If the Regulation intended to provide for a “first-piece” approach, the Regulation would have specified some minimum standards and specifications for both the first piece and for the eventual development of the future Village Center. 

And, if the Regulation intended to provide for such an approach, the Regulation would have required some sort of plan for the future Village Center. Here, the Developer offers no plan and certainly makes no commitments for the future Village Center. 

Inexplicably, both the Agency and the Commission ignored the plain language of the Regulation and without any authorization, recommended a “first-piece” approach based on nothing more than speculation about what may happen and what could occur. 

Because there is absolutely no authority for this “first-piece” approach, the Board has NO CHOICE but to deny the rezone request. 

Development Regulations 

Section (e) of VC-1 provides for Development Regulations: 

“Development Regulations.  Certain requirements set forth in this section may be waived by the Board of Mayor and Aldermen, so long as the plan approved conforms with the guidelines and intent of this section.

(1)       Development Size. This new zone will apply only to future development taking place after the passage of this ordinance and will be limited to projects of no less than fifteen (15) acres.

(2)       Development Layout. Small, four (4) sided blocks, rectangular, or irregular shaped with no side exceeding 400 feet in length. Each side of the block will face a street. Project plans are required and shall be reviewed by the Regional Planning Agency and the Board of Mayor and Aldermen.

(3)       Off-Street Parking. The parking area will be in the center of the block with access limited to three (3) of the four (4) sides. No garage or parking area shall be entered from the front.

(4)       Streets. Streets must be designed for on street parking and must be limited to two (2) twelve (12) foot lanes.  On street parking may have a limited parking time and may be controlled by parking meters.

(5)       Residential Area. No block may have more than twenty (20) percent residential lot area at street level. 

(6)       Sidewalks. Each block must have eight (8) foot sidewalks on all four sides.” 

Note that the Regulations prescribe 6 “requirements” for qualifying as a Village Center.  The Developer, however, asks to be EXEMPT from Requirements (2), (3), (4), and (5). 

Because the Developer has pulled out Requirements (2), (3), (4), and (5) – the ESSENTIAL ELEMENTS of a Village Center – the sidewalks contemplated by Requirement (6) are no longer needed. 

Note the importance of “blocks” in this Regulation. Requirements (2), (3), (5), and (6) prescribe various features of the blocks. Requirement (4) prescribes parking for the streets in the blocks. 

The sidewalks described in Requirement (6) are part of the blocks described in Requirements (2), (3), and (5) and part of the streets described in Requirement (4). When the blocks and streets are eliminated, obviously, the accompanying sidewalks are eliminated. 

The Agency Report recommends an internal street network with blocks. Mr. Bridger explained at the Public Hearing on September 10 that the recommendation was for a system of streets with intersections and with buildings on the streets. It is along these streets that sidewalks would be placed. He acknowledged that the internal street network would support a “small-town character” as stated in the Vision. 

Clearly then, the sidewalks contemplated by Requirement (6) are the sidewalks along the blocks of the internal street network. 

But the Developer, at the Commission meeting, asked to be exempted from the Agency recommendation for an internal street network. The political appointees on the Commission agreed to the requested exemption. 

At the Public Hearing, the Developer displayed a Concept Drawing (which the Developer calls a site plan) for the development. (The Agency Report, p. 6, states that “the site plan is just a conceptual illustration of intent….”) The Concept Drawing shows perimeter sidewalks and sidewalks from the large supermarket to the two commercial buildings. These sidewalks do not satisfy Requirement (6).  That Requirement contemplates the presence of the blocks and streets as described above and that is why Requirement (6) provides that “Each block must have eight (8) foot sidewalks on all four sides.” 

When the Developer pulled Requirements (2), (3), (4), and (5), the Developer, in effect, eliminated Requirement (6). 

At this point, the Developer is down to a Concept Drawing (which is not a fixed commitment) and Requirement (1) for 15 acres. 

However, the Agency Report points out that “the application does not meet the 15 acre requirement.” Then, the Report recommends reducing the requested rezone from 13 acres to 9 acres, in part, because of “steep slopes.”  (Report, p. 4) 

The reality then, is that the Developer is asking the Town Board to declare a Concept Drawing to be a Village Center when the proposed development fails to meet all 6 of the VC-1 Requirements. 

The Developer’s request is an affront to the Town Board.  It is insulting to the Town Board for the Developer to think that Board members can be so easily fooled. 

How can the Town Board – in good faith – say that the proposed development is a Village Center when the development does not meet any of the 6 Requirements prescribed in 4.05(e)? 

Waiver

The 6 Requirements for a Village Center are set forth in 4.05(e) which begins as follows: 

            “Development Regulations.  Certain requirements set forth in this section may be waived by the Board of Mayor and Aldermen, so long as the plan approved conforms with the guidelines and intent of this section.” (Emphasis added.) 

Section (e), then, authorizes the Board to exercise some discretion in waiving certain of the 6 Requirements, but the Board’s right to waive is strictly limited because any plan resulting from a waiver must conform “with the guidelines and intent of this section.” 

The Developer is asking to be excused from compliance with all 6 Requirements. 

How can the Board say that the Developer’s proposal “conforms with the guidelines” of this section when the Developer seeks to avoid all 6 of those guidelines? 

How can the Board say that the Developer’s proposal “conforms with the …intent” of this section when the intent is expressed in the 6 ESSENTIAL ELEMENTS that the Developer intends to avoid? 

The Developer is not asking the Board to tweak a little here and modify a little there. The Developer is asking the Board to ignore the VC-1 Requirements. 

The Board has some discretion – but not that much. The Board’s discretion to waive is clearly defined and limited by 4.05(e). The Board does not have the authority to waive all 6 of the ESSENTIAL ELEMENTS of the VC-1 Regulation and approve a plan that utterly fails to conform with the guidelines and intent of the section. 

No court in the country would say that the Board has the discretion to do what the Developer is asking. 

Because the Board has no authority to waive the 6 Requirements, the Board has NO CHOICE but to deny the request for rezoning. 

Although the Agency’s approach to the rezoning request is flawed in several respects, the Agency did recognize that all 6 of the ESSENTIAL ELEMENTS could not be waived. At the Commission meeting, there was a brief discussion about waiving the 6 Requirements, and Mr. Shults expressed the view that the Requirements could be waived if the 7 conditions in the Agency’s Report were adopted because then, the resulting plan would conform with the guidelines and intent of the section. 

A Commissioner disagreed with the Agency’s approach and stated that the Agency was, in effect, removing the 6 Requirements and replacing them with the 7 conditions in the Report. That Commissioner understood what was happening and recognized that the 6 Requirements were essential to the creation of a Village Center. Replacing those 6 Requirements with the 7 conditions amounts to a complete rewriting of section (e). 

In any event, the Commission removed the two most significant conditions: #4 (limiting square footage of a building to 20,000 square feet) and #6 (requiring an internal street network). 

Consequently, the Agency’s position is that the Plan approved by the Commission DOES NOT CONFORM with the guidelines and intent of the section. 

Significantly, the political appointees on the Commission did not attempt to explain how the plan approved by the Commission – minus the two most important conditions required by the Agency – could possibly conform with the guidelines and intent of 4.05(e). 

Square Foot Limitation 

Much has been said about the fact that VC-1 does not include an explicit limit on the square feet of a building footprint. Almost all of what was said is incorrect. 

The Developer originally tried to have the Lines property rezoned as commercial. The commercial regulation includes a 5,000 square foot limit on buildings but does provide for a special-use permit to allow a larger building. The Agency denied the original rezone request, and the Developer withdrew that Application. 

When the Developer filed the current Application requesting the rezoning of the Lines property, the Developer asked to be excused from compliance with all 6 Requirements and sought to avoid the VC-1 intent to blend commercial and residential areas. From the outset, the Developer knew that the proposed development did not fit VC-1. 

The Developer recognized that, while VC-1 does not include an explicit square foot limit, the large size of the proposed supermarket (44,000 square feet) was problematic. 

The Developer also recognized that the size of the proposed supermarket was 9 times the square foot limit for the commercial zone. Such a supermarket would be the largest building on the Walden’s Ridge Plateau and would be twice the size of any other commercial building. 

To deal with the anticipated objections to the size of the supermarket, the Developer has claimed that VC-1 has no size limitation for buildings. At the September 10 Public Hearing, the Developer repeated the claim: 

“VC-1 zoning has no size limitation in it.” 

The Agency, both in its Report and at the August 12 Commission meeting, assumes that VC-1 has no size limit. At that Commission meeting, one Commissioner referred to the Developer’s prior Application under the commercial zone and said:

“Now we’re back with this village concept that doesn’t have a size of building stipulation, but I just don’t – I don’t see that this project fits the zone.” (Commission audio minutes.) 

At least two other Commissioners assumed that VC-1 had no size limit and, on that basis, objected to the Agency recommending a 20,000 square foot limit for the proposed supermarket. 

The Developer, Agency, and the Commission once again failed to recognize the General Purpose provision of the Ordinance. As previously noted, that provision states that the Ordinance is designed to “enhance and implement” the Vision which, in part, provides “for an orderly and cohesive development pattern that maintains a small town atmosphere with rural character.” 

The General Purpose, then, supplies a size limit for buildings by requiring that a building must fit within a “cohesive development pattern.”  The large 44,000 square foot supermarket does not fit the development pattern in Walden and certainly does not enhance the Vision. Although the Agency failed to recognize the size limit in the General Purpose provision, the Agency did point out that:

“The surrounding development form consists of small scale commercial buildings along Taft Hwy….” (Report, p. 4) 

Later in the Report, the Agency states:

“However, staff’s overriding main concern is the large scale building and associated parking…conflicts with the [Plateau] plan recommendations for ‘small to moderate scale buildings…and compact site design….’” (Report, p. 6)