Title
Consideration of Citizen Petition by Mr. Jeremy Thacker
Description
This report provides the City Council with information in response to a citizen petition submitted by Mr. Jeremy Thacker at the April 19, 2023, Formal City Council meeting regarding the Transit-Oriented Development (TOD) Districts (Attachment A).
Report
Summary
The petitioner requests the City Council to consider and enact an ordinance or measure to do two things:
(1) "Prevent developments within the TOD Districts from using entitlements obtained prior to Reinvent PHX that do not support the objectives of the TOD Policy Plans from being approved for permits."
(2) "Create a temporary zoning overlay (Non-TOD) and update "Definitions" in the Phoenix Zoning Ordinance for the TOD Districts to prevent developments containing elements opposing the goals of the TOD Policy Plans for those districts from receiving permits of rezoning approval."
Staff Response
The City of Phoenix has nine adopted TOD Districts (See map in Attachment B). The ReinventPHX project referenced in the petition was a community planning effort from 2012 and 2015 funded by a $2.9 million grant from the Unites States Department of Housing and Urban Development. One of the outcomes of the ReinventPHX effort was the formation of five of the City's TOD Districts including Gateway, Eastlake Garfield, Midtown, Uptown and Solano; each with a City Council adopted TOD District policy plan. The ReinventPHX TOD District policy plans served as the model for the development of additional TOD District policy plans for 19 North and South Central. The TOD District policy plans articulate a vision for future development centered around addressing a framework of six planning elements from housing to land use.
The petitioner’s first request asks the City Council to "prevent" those with existing development rights of properties located within a TOD District. A governmental action prohibiting or restricting a property owner’s right to exercise their existing property right may conflict with Arizona statutes, Arizona Regulatory Bill of Rights (A.R.S. § 9-831 to § 9-842) or Proposition 207 Diminution of Property Value (A.R.S. § 12-1134) (aka Prop. 207).
The petitioner requests City staff to stop issuing permits for projects that comply with all existing regulatory requirements but are not consistent with the City Council's own adopted vision of the TOD policy plans.
The City may adopt ordinances to implement the intent of the TOD policies under the Arizona Regulatory Bill of Rights permits. However, under Prop. 207, the City is required to compensate private property owners if the new ordinance causes the diminution of the value of their property. The City Council adopted the Walkable Urban (WU) Code as Chapter 13 of the Phoenix Zoning Ordinance in 2015. The WU Code was developed to serve as an implementation tool for the TOD District policy plans. Due to Prop. 207 considerations, the City did not unilaterally rezone properties within the TOD Districts to WU Code, but instead has facilitated rezoning of properties to WU Code at the request of individual property owners through the rezoning process.
Under Prop. 207, a municipality must pay private property owners affected by any land use change that causes any reduction in property value if the law reduces the owner’s existing rights to “use, divide, sell or possess private property …." If the City Council adopts new regulations prohibiting or restricting the exercise of the existing land use entitlement already acquired by the private property owners, the City will be subject to the diminution of property value claims under Prop. 207.
The City staff cannot determine whether the petitioner’s specific request will be subject to a diminution of value claim with specific facts. The City could review the TOD Policy Plans, but will have to research those effects to ascertain colorable claims under the Arizona Regulatory Bill of Rights or Prop. 207.
The petitioner’s second request asks the City Council to create a new temporary zoning overlay and other development standards to prevent developments that are inconsistent with the goals of the TOD District policy plans. Creation of a new overlay that would restrict existing zoning entitlements to implement the policy plan will conflict with the Arizona Regulatory Bill of Rights (A.R.S. § 9-831 to § 9-842) or Prop. 207 Diminution of Property Value (A.R.S. § 12-1134) (aka “Prop. 207) and subjects the City to monetary damages.
Options for Council Action
A. Accept the petition and direct the Planning and Development Department to request the Planning Commission initiate a text amendment to the Zoning Ordinance for the TOD Districts.
B. Accept the petition and direct staff to conduct additional review and study under the 8-Hour Rule for a recommendation to subcommittee or bring back to City Council.
C. Deny the petition.
Department
Responsible Department
This item is submitted by Deputy City Manager Alan Stephenson and the Planning and Development Department.