The special permit system

Material Information

The special permit system a zoning reform technique
King, Susan T
Publication Date:
Physical Description:
approximately 150 leaves in various foliations : charts, plans ; 28 cm


Subjects / Keywords:
Zoning ( lcsh )
Zoning law ( lcsh )
Zoning ( fast )
Zoning law ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Includes bibliographical references.
General Note:
Submitted in partial fulfillment of the requirements for a Master's degree in Planning and Community Development, College of Design and Planning.
Statement of Responsibility:
by Susan T. King.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
08751123 ( OCLC )
LD1190.A78 1982 .K48 ( lcc )

Full Text
a zoning reform tediinique
by SiuLsan T. King
studio three
H3ujp.c.dL uxdL aug. 1982.

I. History of Zoning....................................... 3
II. Problems of Traditional Zoning......................... 10
III. A Zoning Reform Technique The Special Permit System. 24
IV. SPS in Action Four Case Studies .................... 48
V. Conclusion Analysis of SPS ......................... 56
VI. Appendix .............................................. 66

Use of land dictates where we live, work, play, shop and worship. Land is a permanent and limited resource. People and organizations try to control land because it is a means of production and affluence. However, it is very costly to society to repair the negative results of haphazard land use. For example, once agricultural land becomes suburban development, it is very unlikely that the land will ever revert back to food production. A polluted river cannot easily be made pure. A heavy industrial use which creates urban blight cannot easily be removed. The use of land may be inconvenient, ugly, uneconomical, and polluting. Because land use is so important, government has chosen to regulate the use of the land by segregating incompatible land uses.
Land use regulations cover many issues. The application of land use regulation influences housing costs, wealth and the ethnic make up of a community. It also affects the community's ability to deliver public services and the taxpayer's burden of supporting those services. Land use regulation also affects the beauty of one's surroundings, the amount of time and money spent driving and commuting, environmental quality and the availability of recreation.
This paper will demonstrate that traditional zoning techniques are not adequate to solve the complex land use problems in our urbanized society. There is a great need to reform zoning to help solve today's land use problems. This paper will describe an alternative to traditional zoning, the Special Permit System.

The first section will provide a brief history of zoning. The second section will address the shortcomings of traditional zoning and the land use problems which have evolved as a result of old zoning techniques. The third section will describe the Special Permit System and how it is better suited
for modern land use regulation. The fourth section will look at the SPS in action with particular attention to four case studies. The last section will analyze the SPS.

This section will describe the evolution of zoning in the United States with an emphasis on zoning development in New York City. Also included will be a discussion of important court cases which have set legal precedents for zoning.
Zoning began in New York City in the early 1900's. New York was a logical birth place for zoning. New York has always been the commercial heart of the nation. Business and industry developed there first. Likewise, the problems brought on by industrialization and urbanization focused first in New York. Therefore, New York was forced to develop the first system of land use regulation. Other reforms grew along with zoning, including housing codes, building codes and fire codes. These reforms had a sweeping effect on the rest of the country.
The reform movement, of which zoning was a part, made a basic assumption about the city. Man didn't have to allow blind chance to determine the evolution of a city. Rather, man's intelligence could shape the city's direction. The reformers felt that urban problems could be controlled by government. Zoning was to be the prime tool of governmental control. The reformers felt that only governmental regulation could solve the severe social problems that existed.
Two important social problems were squalid living conditions in tenement housing and nightmare working conditions in industry. Part of the industrial nightmare included children as young as nine working in cotton mills and sweat shops for forty cents a day. Clearly, legislation was needed to improve the living and working conditions.
At the same time, technology was rapidly advancing, creating additional problems. The skyscraper became a new innovation in

architecture. Iron and steel technology allowed a new kind of structure in which the weight of the building was supported by the steel skeleton. The difference in weight distribution enabled buildings to reach new heights never before imagined.1 The New York skyline began to emerge in the early 1870's. For more than forty years New York had no controls. Skyscraper builders did what they pleased.
Along with steel frame construction, a special contribution to the skyscraper's growth was the invention of the elevator in 1853. Additional technological inventions of the telephone and electricity helped raise the potential for skyscrapers. In the past, a tall building was 5 stories high. With these new technological advances, the sky was literally the limit.
However, many viewed the skyscraper as a monstrous parasite. It had enormous impact on public utilities, streets, sidewalk traffic, and neighboring property. It was perceived as a threat to public health by blocking out light and air. The time was ripe for public regulation.
Land use characteristics were also rapidly changing within the city, putting additional burdens on the system. New York was not only growing in area but physical changes were occurring along established streets. These changes were especially evidenced along one of the prominent thoroughfares of the City, Fifth Avenue. In the 1830's to 1840's Fifth Avenue was lined with the homes of New York's social leaders.
After the Civil War, the character of the avenue changed. The prominent homes were converted into boarding houses and hotels began to locate there. Despite the richness of the parlors and the gracious settings, the hotels were places of business which brought commercial activity onto the avenue. As a result of commercial development, prominent home owners began to leave the neighborhood. By the turn of the century,

Fifth Avenue was a place of business, and the most fashionable retail stores were located there.
Forty years after the onslaught of trade, the mansions were torn down because of economics. Early residential development brought rising land values because the area was a fashionable place to live. The limited amount of status sites along the avenue brought higher prices for those sites. Land used for department stores and hotels demanded higher prices than land for residential purposes and land prices spiraled even further.
Because of the turmoil along the street, Fifth Avenue became the focus of zoning concern. Business wanted to protect their investments. In 1907 the business men formed The Fifth Avenue Association to promote and protect their commercial interests. The main reason for organizing the Association was the threat of the garment industry. The garment industry mass produced cheap clothing through the use of unskilled immigrant labor and squalid sweat shops. Fashionable retail businesses resisted the influx of lower class laborers and the rapid degeneration of buildings. Use of the Street became a vicious arena between the garment manufacturers, the retail merchants, and the homeowners. The Fifth Avenue Association wanted government through its police power to control the use of the street.
New York City believed it had the power to pass laws which dealt with
the problems of urbanization. It was called "police power". The police
power was based on two centuries of English common law. The purpose of the
system was based on an old legal maxim: "Use your own property in such a
manner as not to injure another." The concept included not only property, but also included the protection of life, health, comfort and peace of the community. New York City claimed its authority to enact laws to protect these broad objectives.

Pressure from the community brought about a series of formal actions by the City. In 1909 the first commission was appointed by Mayor William Gaynor and was called the City Commission on Congestion of Population. The Commission had the support of the conservative financial interests (the
business men along Fifth Avenue) and reform-oriented civic groups. The Commission suggested controls over construction in the City and public ownership of transportation. Commissioner Benjamin Marsh was a reformer and
had been influenced by the planning movements in Germany and England. He
suggested zoning as a crucial role in urban policies.
A second commission was formed in 1912. The Heights of Building Commission did the pioneering work in defining the problems of height control and investigating the zoning solutions. The Commission report, published in 1913, stressed that a solution for the Fifth Avenue problem
needed to be found and that the injury being done to the Avenue was not an
isolated problem. To strengthen the legality of the report's
recommendations, the commissioners applied the report to other similar streets in the city.
The report lead to the passing of New York's first zoning ordinance. In 1914 the New York legislature amended the city's charter giving the city the power to zone. The culmination of the different actions resulted in zoning being enacted on July 25, 1916 by the City. The comprehensive zoning resolution set a height limit on buildings. The height limit was restricted in several ways. A building height was tied to the multiples of the street width on which it faced. There were absolute minimum and maximum height limitations in different areas of the city. There was also a provision which allowed for a setback technique. For every additional four feet in height, a one foot setback from the property line for that portion

of the building was needed. The additional setback created a stair step look to a building. Unlimited height in the district of lower Manhattan was allowed as long as the upper stories stepped back according to the formula.
The building shape would provide for adequate light and air to reach the
The zoning law also divided the city into districts. The districts were areas defined by the land use (housing, business and industrial) and building type (duplex or single-family house). The restrictions of a particular district would meet a particular need of that district. Controls ranged from strict rules over yards and open spaces surrounding a house to very little control of the space surrounding a warehouse.
The 1916 Resolution had one other feature. If a property owner wanted to develop his land, but strict adherence to the new law created unnecessary hardship, then an administrative body (The Board of Appeals) was empowered to grant relief to the owner. In short, the board could grant a variance from strict adherence to the zoning ordinance. Originally, this mechanism was built in as a safety valve. However, it soon became a leak in the dike through which unwanted land use characteristics began to seep.
New York, the pioneering city, gave the zoning effort most impressive beginnings. Zoning spread rapidly to other American cities. By 1918 citizens and public officials were trekking to New York to observe and learn about the new zoning laws. Zoning swept through the nation in the 1920's under the promise of a better city. It was also perceived as protection by landowners who were concerned with real estate market conditions.
During the 1930's planning and zoning greatly expanded and became dependent on federal funding. The federal dollars were funneled into local planning agencies. Part of zoning's popularity at the local level was

restrictive controls which were placed on residential districts. Residential controls served to protect against destructive uses next door. Everyone wanted zoning.
Despite zoning's success, there were several important Supreme Court challenges. One of the crucial cases which was important to the continuance of zoning was Welch V. Swasey. The Supreme Court in 1909 decided in favor of Boston's use of police power to control height of buildings, which was a basic zoning control. The case was cited as conclusive authority for different height regulation among different zones in a city. ^
In 1926 a landmark case in zoning reached the Supreme Court. The case was Ambler Realty v. The Village of Euclid. Euclid, faced with the prospect of heavy industry rolling across the village, enacted a comprehensive zoning ordinance in 1922. The entire community was placed under the same system of controls first applied in New York. That same year Ambler Realty Company, who bought property in anticipation of industrial development, started suit. Their grievance was that the value of their land under the new ordinance dropped from $10,000 per acre to $2,500 per acre. Ambler also claimed that the ordinance violated its constitutional rights by depriving it of property without due process under the Fourteenth Amendment.
The issue before the Court was the validity of excluding business and industrial uses from a residential district. The question of height restriction and control over hazardous or nuisance producing activity had already been approved by the Court. The Court found Euclid's ordinance constitutional. It was based on the protection of the safety, health and general welfare of the community. Zoning fell under the broad constitutional limits of police power because as city life grew more complex (increase in population, urban congestion and changes in technological

conditions), more restrictions were needed controlling use of private land. The complexity of urban life had been documented by the New York experience which the Court took into consideration when they made their decision.^
As zoning was becoming an institution, zoning was also evolving as American cities began to change. A major change in the city was brought about by the automobile. The auto gave people mobility which created growth in the area of cities. The city also became more sophisticated with new goods and services. The sophistication attracted people to the cities and they grew. As cities grew, they got more congested. To escape the congestion, people started to live further outside the city. Suburbs began to spring up. This phenomenon allowed people living in the suburbs to take advantage of the metropolis, without paying the cost of public services there.
By the 1960's, suburbia was the fortress for middle-class America. Intense interest was generated in suburban local government. Zoning served to give the suburbanite direct contact with the process of law in his community. Suburbia began to demand more restrictive zoning to protect their residential property and to exclude the lower and poorer classes. Zoning became very political with local property owners becoming involved with the zoning process. Real estate interests became highly influential. As a result the underlying purpose of zoning (protection of the health of the community) was not as important as protection of land values. Zoning controls which were conceived to humanize the industrial city resulted in the extension and preservation of the suburbs.

This section will address the limitations resulting from traditional zoning. The problems fall under three basic categories. These categories are physical land use problems, unequal treatment of landowners, and difficulties in administering traditional zoning ordinances.
Our cities are filled with people, but cities seem to be very dehumanizing places to live. Urban areas develop with little regard for the people who live there. Opportunities for people to play, create, learn, worship and nurture their spiritual, aesthetic nature are not accessible in the urban scene. A balance between working and playing must be provided for in order to achieve a coherent sense of community. People are the city. However, the focus of development has been on commerce and industry rather than nurturing of man. The work ethic and profit motive have been the driving force behind development. As a result we pay the price of ghettos, core city deterioration, pollution, waste, sprawl, destruction of neighborhoods by highways, and a sharp sense of loss of control over our lives. Louis Mumford stated it more eloquently, "...we have invented a thousand fresh devices for getting and spending. As a consequence our life is externalized. The principle institutions of the American city are merely distractions that take our eyes off the environment, instead of instruments which would help us mold it creatively a little nearer to humane hopes and dreams.
The urban structure needs to be reshaped to restore the sense of community. A healthy community is a necessary part of the environment for a good life, but to obtain this goal of a good life, we need to change our focus to include the basic needs of the people living there.

Zoning concern in the early 1900's about separation of use, height and bulk limitations and providing for adequate light and air in buildings has been expanded. People are now demanding protection against pollution, opportunities for jobs and housing, tax relief, and controlled growth of their cities.
These new social expectations require new solutions that conventional zoning has failed to meet. However, before new solutions can be formulated, current zoning problems need to be identified, and analyzed in order to design new techniques which will sufficiently deal with the issues of today.
Traditional zoning separates uses which are thought to be
incompatible. The physical result of use separation, is a separation of
human function. It creates a situation where people end up living away from
the areas where they work and shop. Commuting to work then becomes
necessary. With traffic already heavy in urbanized areas, it wastes time
and increases costs.
Use separation forces us to be dependent on our cars. Auto related
uses account for more than one-half of the city's land. With urbanized land in such great demand, devoting so much land to the auto is uneconomical, costly and aesthetically unpleasing. This is antithetical to the sense of community because it is impossible for a person to relate to any particular location. It also reduces face to face contacts with our neighbors.
An expensive social problem is created by the decentralized functioning of a city. Many citizens, including the young, poor,
handicapped, and elderly do not have access to privately owned cars. It

therefore becomes the responsibility of society to provide a public transit system for those who cannot afford or cannot drive a car.
Zoning is uneconomical because it does nothing to prevent sprawl. Land availability in the suburbs is easier to build on as opposed to rebuilding deteriorated central areas. With new development, there are additional demands for schools, roads, police, fire, garbage collection, hospitals and utilities. As a result, the central city taxpayer picks up the cost of the new services. In other words, the central city subsidizes the urban fringe. In the case where the costs for services are picked up by the developer, the developer passes on the cost to his customer, driving up the purchase price.
Zoning is narrow in scope and content. Regulation in the traditional zoning ordinance ignores valid interests such as those of the region or state. For example, a zoning ordinance might restrict a mental health half-way house in a single-family residential zone. However, this exclusion might conflict with the state's policy on mental health rehabilitation programs. Zoning regulation should be consistent and broaden its scope when the state has identified areas or issues that are of state-wide concern.
The zoning regulations devised in the 1920's are inadequate to handle the immense scale of development. Traditionally zoning does not take into account topography orientation, physical features, or design of large parcel sites. In complex urban situations, however, where thousands of people enter and leave a building every day, the public interest ought to extend beyond light, air, land use and density. Major subdivisions, regional shopping centers, industrial parks, high-rise complexes and mixed use developments are being developed today and as a result development is

becoming more complex. Greater sophistication in zoning regulation is required as a result.
Zoning does not protect valuable agricultural land. Agricultural land on the urban fringe is easily bought for new development. As a nation we have seen a decline of small scale agricultural business. This trend has eliminated truck farming which could sell produce at lower costs because transportation costs of getting the produce to market was low.'*'0 With the mix of agricultural and suburban land more problems are created. The suburbanite complains of pesticides and fertilizer that farmers use and about the noise of tractors. The farmers complain about the increased costs of goods, increases in property taxes, and congestion brought on by more people. If zoning controls could be designed to reduce sprawl, the remaining small farm operations might not be as threatened.
Zoning is static. Zoning operates by listing uses which are allowed within a specific zone district. In the case of a commercial area the list can contain hundreds of items. For example, the City of Englewood lists 107 items that are allowed in the B-l Business District. The list attempts to predict what uses will take place within the zone. This, however, may inhibit useful development which is responding to changing conditions in the market. More flexibility is needed.
Another physical result of zoning is the rigid, uniform look of housing. Features of a zoning ordinance will require that all houses be set back from the street a certain distance, with certain side yard setbacks and a certain size lot. The homes on the street all look alike. The are all placed on 7,000 square foot lots with 25 foot front yards. The regulations make it impossible to build a duplex in the area, or anywhere near it (being an "obvious threat" to the character of the neighborhood).

This results in a greater problem than all the houses looking alike. It excludes affordable housing for low and moderate income people in that particular zone district. Suburban communities can and have used zoning to keep out unwanted minorities. Zoning allows existing residents to greatly influence who can and cannot move into a community by impeding housing construction, through lot size restrictions, which have little to do with market demand. Requiring the purchase of more land than market conditions warrant directly adds to the purchase price of homes and indirectly adds to the cost by reducing the supply of land.11 12 The same thing happens when minimum living area square footage is required to satisfy local public opinion. At $45 a square foot for construction costs an additional, but unnecessary, 100 square feet of floor space drives the price of a home up $4,500.
The legality of exclusionary zoning has not been uniformly upheld by
the courts. In the case of Kennedy Park Homes Association, Inc, v. City of
Lackawanna, decided by the Second U.S. Court of Appeals (2nd Circuit) in
1970, the Court held that zoning and other local regulations adopted to
prevent the erection of a low-income interracial housing in an all white
neighborhood was unconstitutional However, litigation in court has not had much more than a symbolic impact on zoning as it affects lower cost housing. Even when zoning is not intentionally used for economic and social segregation, it can restrict housing development which is wanted and needed by the community.
In absence of zoning, supply and demand control the cost of land. When zoning is imposed, it changes the supply of land available for a given use. New price relationships for land are created. Despite economic pressure for multi-family dwellings, if a community is zoned exclusively for

single-family, the supply of land for single-family purposes is maintained. If the community is over-zoned for single-family, by the time apartments are in demand, most of the area zoned single-family will already be developed, because the zone classification kept the price of the land fictitiously low through over-supply.13
Zoning inefficiencies can hinder effective implementation of housing policies especially if housing policy is formulated at some level of government, other than the local level. Local autonomy prevents coordinated regional action to implement regional housing objectives.
Traditional zoning has allowed for strip commercial development. Drive down any arterial street of any city, and it looks the same. One cannot avoid the clutter of McDonalds, Burger King, car dealers and Kentucky Fried Chickens. Each business franchise has a huge neon sign and at least one curb cut. Surrounding the building is hot asphalt for off-street parking. The cummulative effect of each business is a chaotic commercial strip that assaults one's senses. Each development, however, conforms to the business zone. In some instances, the search for an additional tax base has led communities to over-zone for commercial strips. The results of this practice disfigure most cities. Strip commercial zones are approved and built one project at a time, and there was no overall planning. The cummulative effect is commercial chaos.
Zoning leads to hopscotch development. Undeveloped land on the urban
fringe is often prezoned prior to development. Fringe areas have increased
demands for uses which might have outstripped earlier zoning 14
determinations. For example, the urban fringe is often zoned agricultural or low density residential. With the influx of people the area grows, sprawling beyond municipal boundaries. Suddenly there is a demand for

commercial/office uses to support the new population growth, but the zoning won't allow for commercial development. What is likely to occur? Those who want the zone changes to commercial will ask for a zoning within the municipality. If their request falls on deaf ears, the developer will go to the county lying just beyond the municipal boundaries, get his rezoning and put up his project. The problem with this type of development is that it tends to be isolated in the countryside. It will still need the full range of services such as water, sewer, fire and police protection, roads, and utilities. Services are eventually provided but at a high cost to the taxpayer to run systems out to the "boondocks".
By zoning or rezoning a tract of land, conditions in the supply side of the market change. The new changes in zoning create development opportunities. For example, a tract of land zoned single-family residential could be rezoned to allow for multi-family residential. The use change will increase the value of the land. A high price will be asked to purchase the land, because there is a more intense use allowed. This could potentially limit the number of people entering the market because of the higher price demanded. In other words, zoning reduces competition."^
The change in the supply of land through rezoning is unfair in other ways and leads to speculation. Zoning creates a windfall for some property owners while other property owners get nothing. For example, a property owner holding a piece of vacant single-family land can hold it until the property is rezoned for apartments. At that point, he can sell it for a greater capital gain than what he would have received under the former zoning. The property owner has done nothing to create the increased value

in the land. The increased gain has come from the shift in land use.
However, his next door neighbor's land may not be included in the rezoning.
If the neighbor asks for his property to be rezoned for apartment use he may
be turned down by the City Council for a petty reason. The rezoning may be
denied simply because the land owner is not liked by members of the council.
The neighbor, no matter how long he owns his property, will not realize the
additional value of a more intense use. Yet, his land is essentially the
same as the property zoned for apartment use. The action taken by the
municipality shows serious problems of equity.
The focus of traditional zoning has been the individual lot. The
community takes the responsibility of adjusting incompatible land uses.
This is seen as a passive role by the community. However, if the community
takes an active role in large area development, the zoning map is changed to
reflect the new policies. In effect, the new zone changes have spillover
impacts on adjacent areas. These impacts can be positive or negative. The change in zoning appears unfair to adjoining land owners, who relied on the original zoning when they acquired their property. For example, intense office and commercial development has taken place along the 1-25 corridor in the Denver Metropolitan area. This may be healthy for the community because it provides for new jobs and a new tax base. However, there are negative impacts which affect the residents living there. The increased traffic volumes and high office structures, which block mountain views, change the character of the residential neighborhoods. These changes were not forseen by the early residential property owners who located "in the country" to get away from city congestion.

The traditional system is incapable of responding flexibly to
development. Rezonings and variances were intended as safety valves to
correct errors and to provide for unusual situations. However, rezonings and variances have become the mainstays of the development process. The two planning offices in the Denver area that this author has worked in spend at least one-third of their time in preparing staff reports on rezonings and variances.
Designed as a safety valve, a variance is requested to the Board of
Adjustment from a developer when his proposal cannot meet with the zoning
requirements. The Board of Adjustment is made up of local citizens. Their
minor judicial role is to adjust individual injuries when the regulation
bears too heavily. The Board does not interpret or implement the community's overall plan. In addition, the Board often abuses its power. In
most cases, the Board will grant variance, when a hardship doesn't exist,
. 19
without giving consideration to what the regulation intends to do.
There is no certainty in zoning. Sometimes the Board will grant use
variances. A use variance is in essence a rezoning. A rezoning is supposed
to be consistent with the overall comprehensive plan of the community. A
determined developer could get around the intent of the comprehensive plan
by applying to the Board for a use variance. This is particularly bad
because (the decision made by) the Board is not directly accountable to the
public as they are appointed members and not elected.
Problems emerge, however, with rezonings. To rezone there must be a
change in land use conditions to warrant the amendment. If there has been a
change in conditions, but the land owners of adjoining areas regard the
rezoning as adverse, the legislative body may not vote affirmatively. In

other words, there is no certainty in the outcome of a rezoning. This has
the effect of bogging down development. On the other hand, there are no
guarantees that a zoning will hold. If there is strong pressure from the
market which demands change, then change is likely to occur. This is
especially true if land is in close proximity to transportation facilities,
or labor supply and if it is segregated from homes or other uses, which
would impede the change. Use restrictions are also more likely to break
down on heavily traveled streets where economic pressures are far greater.
This is evidenced by strip commercial areas found in any town.
Other problems in administration of the zoning ordinance come about
with the Boards and Commissions appointed by City Councils. These boards
and commissions are made up of lay people who don't always have the
expertise to make land use decisions. It is very important to have
qualified people balancing development decisions because of the fixed
quantity of land and the increasing complexity of the use demand on land.
When Boards and Commissions are appointed, they are heavily
represented by developer's interests. For example, the Englewood Planning Commission consists of nine members. Three of the members sell real estate by profession and two of the members are developers. Together they constitute a majority of the Commission. It is easy to see why the average
citizen or the developer from outside of the community who appears before
the planning commission might claim that government is self-serving.
There are other fallacies in the way zoning decisions are made. For example, a zoning decision at a public hearing can be swayed by the amount and character of the opposition. This is particularly true if the opposition's property is in a single-family neighborhood. Elected officials will often commit themselves against zoning for town homes, and for

protection of the single-family areas, when they run for office.
position can have detrimental effects on older communities with housing
shortages. Also, elected local officials are often "pushovers" when high
powered developers come to them with a proposal.
The procedural aspects of administering the zoning ordinance can be
cumbersome and inefficient, which adds costs to development. Administrative 26 27
problems also arise because those officials reviewing applications for
zoning or building permits don't have enough discretionary power to issue
the permit when the application is not in conformance with codes.
The land development process is dependent on many unpredictable
variables: economic, technological, social, political and physical.
Pre-stated development decisions in the form of traditional zoning
regulation are often quite impractical. When a developer cannot meet the specifics of the ordinance, and the administrative official has no discretion, then the applicant's only recourse is to go before the planning commission, Board of Adjustment or City Council. This process can become very lengthy. It can also cost the developer a lot of money, on the front end, with no guarantee that the variance or rezoning will be granted.
The whole process can become very cumbersome. In Englewood, for
example, there are few choice vacant parcels of land for development. Most of the vacant lots are zoned for R-2-C medium-density residential (duplexes). It is also a policy of the City that more housing needs to be built which encourage young families to locate in the City. Under the R-2-C duplex zoning, more than two attached dwelling units are not allowed. In order to build affordable housing for the first-time homeowner, townhomes and condominiums need to be provided. The developer, because of economic constraints, needs to build at higher densities so that young families can

buy housing. To develop the property and implement the city's policy on attracting young families, a developer would have to ask for a rezoning.
The process would take at least four months to go through Planning Commission and City Council hearings. This doesn't even count the time the developer should spend with residents in the neighborhood, so that they are informed of what is happening. The developer must first ask the City for an R-2 medium density residential zone change because R-3 multi-family high density residential isn't in conformance with the comprehensive plan and is politically unacceptable. After getting the zone change the developer will have to go through more public hearings. Why? Because under the R-2 residential zoning, if more than three units are attached, he is required to go Planned Development. The Planned Development section of the ordinance is designed to provide for flexibility in the physical design of the project. However, it will take an additional 120 days of delay to go through the hearing process at Planning Commission and City Council. At this point, the developer, when learning that the process could take 8 months or longer, might not take an option on the land. He may very well go elsewhere to build. The vacant land sits vacant and the City's policies don't get implemented. Everyone loses.
This is not the only example of multiple hearings and many bureaucratic layers which have to be fought through. Similarities occur when a developer wants to subdivide land and then rezone it, or when he has to get a variance to do a planned development. Additional problems are added when there is no procedure for local neighborhoods to get involved in the writing of the zoning ordinance. Their only recourse is at the public hearing, when the developer comes in with his proposal. Neighborhood opposition can break a proposal. Opposition can originate because citizens

feel alienated from the process in the first place. Often opposition can occur not so much against a certain proposal, but because of anger at city officials for decisions which are being made.
In summary, two conclusions have been reached. First, multiple problems are generated by categorizing land development into segregated uses. The rationale for segregating different land uses comes from trying to minimize the negative impacts of uses which are incompatible, such as industrial development in the middle of a residential area. What should be done, instead of separating uses, is to concentrate on the source and extent of the negative impacts. Zoning regulation should be devised to internalize within a development the negative impacts. The separation of use only skirts the real issues. Also, zoning should be consistent with local policy statements found in the comprehensive plan. The zoning should be designed around those policies. Zoning should also try to promote economical use of our limited supply of land. Zoning should promote a mix of land uses with designs which promote compatibility between mixed land use and internalize within a development proposal the negative impacts the development might have on adjacent land.
Secondly, there needs to be a procedure in the implementation and administration of zoning which allows citizens of the community to get involved. A procedure must be established with some flexibility which gives the administrative officials discretion when reviewing a development proposal. The procedure also has to be streamlined at the decision-making level. However, the standards must be set forth so decision-makers are not making decisions in an arbitrary manner.

All of these improvements over traditional zoning have incorporated into the Special Permit System, which will be covered in in the next section.

This section is not going to describe all the innovations that have occurred in zoning over the past few years. Instead, the focus will be on one particular system which has been designed to take care of today's land use problems. This technique is called the Special Permit System (hereinafter "SPS"). It was devised by borrowing many good ideas from many new techniques and putting them into a land development guidance system.
The SPS is flexible toward differing land uses. It has a process for citizen involvement at the onset. It gives discretionary authority to zoning administrative officials, and it offers a streamlined process for prospective developers and administrators. The SPS also features a positive approach to encourage development, because it is intended to offer a developer a bonus based on how he conforms to the various regulations. In this section, the SPS will be analyzed to see if it copes with the land use problems of today. Legal issues of this reform technique will also be discussed.
The notion of granting or denying a building permit based on the use
presumes that a development proposal is compatible or incompatible with the
public interest in advance of seeing the actual proposal. Under the
Special Permit System, there are no uses-by-right and few, if any,
prohibited uses. Instead the SPS is a case by case licensing of all new
development. The system will grant permission for any use so long as a
development proposal meets with the prescribed policies of the community and
the comprehensive plan.
Prescribed policies address the concerns of the community and regulate the impacts of development. The SPS does not attempt to regulate all of the impacts of development. It only regulates those impacts which

the community finds important to address. Local government develops the policies of the SPS and the performance level with which development must comply before a development permit will be issued. Development must also comply with building, electrical, plumbing, fire and other health safety codes.
The focus of the SPS is the policies against which development is measured. The SPS contains two types of policies: absolute and relative.
Absolute Policies. An absolute policy is a value which is so strongly held by a community that it can be expressed in absolute terms.
The absolute policy would either require the developer to do something or
prohibit him from doing something else.30 For example, it might be an
absolute policy of a community to set a height limitation on buildings because the community wants to protect its view of the mountains. The absolute policy might be stated in the following manner:
Development shall be designed and
constructed to protect the view of the Front Range. A project located in the mountain view area which obstructs the view of Mt.
Evans is prohibited.
Any development occurring in the mountainview area would have to comply with the policy. If a project did not comply with the policy, then a building permit would be denied. This is because the policy is absolute and represents what is minimally acceptable to the community.
If, because of hardship, a development proposal could not possibly meet the requirements of an absolute policy, an appeals procedure is designed into the SPS.

Relative Policies. Differing neighborhoods within the city might
hold values which are not characteristic of the entire city. Because of this, some policies, which are important to one set of citizens, might not be important to others. If there is a neighborhood made up of young families, open space, schools and recreational facilities are probably very important to those living there. However, a neighborhood in the same community, which is made up of senior citizens, might hold different values. To the senior citizen, being close to bus service and medical facilities might be their main concern.
Conflicts can also occur within a single neighborhood. For example, a downtown commercial area might need more parking spaces to entice people to the area, however, the community might not like the look of large asphalt areas for parking lots. Another conflict might be if a community needs industry to provide jobs and a tax base, but it doesn't want the air pollution produced by industry.
In other words, some values can not be expressed in absolute terms. The SPS recognizes the fact that a community has competing values. Values stated in the form of relative policies involves reaching trade-offs between conflicting policies. For example, in the case of providing for adequate off-street parking in the downtown area, the city might have an absolute policy for a development proposal to provide a certain amount of off street parking. The relative policy will be the trade-off which either encourages or discourages the developer for taking some course of action.^ The relative policy might be stated as follows:
Off-street parking is encouraged to be
bermed, buffered, landscaped and

maintained. Off-street parking which is not landscaped is discouraged.
The community may feel that providing for parking in the downtown should be an absolute policy. Althouth the landscaping of a parking lot is aesthetically pleasing, it might not be practical in all cases. However, the community would certainly encourage a developer to landscape. The landscaping policy would therefore be relative and not absolute.
The greatest advantage of the SPS is its flexibility. The policies developed by the community can be drafted to address every conceivable impact of land development. Since the community and each neighborhood has its own perspective on development issues there is no right or wrong way to address issues.33 Each SPS would reflect the values of people who live in the particular area and would apply to each unique environment. For an example of a Special Permit System which was developed for Englewood, Colorado, see Item A of the Appendix.
The policy statements developed for Englewood consider not only the physical issues of development but adopt other criteria to judge development. Some of the broad categories which are areas of concern include environmental, social-cultural energy, fiscal, public service, transportation, economic, physical design of the project and urban form factors. Under each of the above categories policy statements address specific concerns. For example, under the social-cultural category, one of the policies addresses the issue of handicapped facilities:
A project is encouraged to be designed and
built to be accessible to the handicapped.
Some of the policies reflect community-wide values or uniform conditions. However, some policies will have to be developed to fit the

special characteristics and unique values of each neighborhood. In this way, the SPS takes into account differences within the community and recognizes different needs throughout different neighborhoods. For example, in a neighborhood which has an identifiable architectural character (such as red tile roofs), a policy to protect the architectural integrity which describes the particular architectural features should be written. Any development taking place in the neighborhood would then be examined to determine its compliance. Development occurring outside the identified neighborhood would not have to comply with that specific architectural policy because the policy would not apply outside the neighborhood.
The Performance Score. To encourage the developer to design a good proposal, the community will grade the developer on his performance as to his level of compliance with the policies. If the developer does a great job in implementing a policy, he will be awarded +2 points. If he attempts to do a good job and benefits the community, then he will receive +1 point. No points will be awarded if the developer ignores the policy. If the community feels some negative impact from the development proposal, then -1 point will be assessed. If the community feels it will be significantly worse off, then -2 points will be assessed. ^
Take off-street parking as an example. If the developer did an excellent job in screening the parking lot from public streets by berming the perimeters of the lot, and if he landscaped the berms and asphalt areas, then he would get +2 points. If the developer only landscaped the parking area, then he would get +1 point. If the developer placed the parking lot behind the proposed building, but he did not landscape the parking lot, he would be assessed -1 point on the policy. If he chose to do nothing to soften the negative impact of the parking lot, he would receive -2 points on

the policy. Only if there was no need to provide for off-street parking, because parking was not required for the proposed project, (say the project was residential and garages were built) then the developer would ignore the policy and receive zero points.
Relative policies are what the community wants, but does not absolutely require. A relative policy addresses only one subject. By the time a community addresses every subject they feel important, the list of relative policies could number in the hundreds. When a community is developing its policy list, it will find some of the relative policies more important than others. The community will need to rank each policy to decide how important the policy is. The ranking is on a scale of 1 to 5:
5 means the policy is extremely important 4 means the policy is important 3 means the policy is of average importance 2 means the policy isn't very important
1 means the policy is of slight importance
The importance factor assigned to the policy is then multiplied by the developer's performance score. The figure arrived at becomes the developer's overall (weighted) score for the particular policy.37 Take the off-street parking lot relative policy:
Off-street parking is encouraged to be bermed, buffered, landscaped and maintained.
Off-street parking which is not landscaped is discouraged.
Developer's performance +2
Importance factor X3
Developer's weighted score +6

Development proposals are checked against each relative policy. In
this way, the community will be able to make trade-offs between conflicting
values. A slightly negative impact on a very important policy could be
outweighted by a very good impact on a policy which is less important. As an example, the community's policy on air pollution might be important (4) while screening of off-street parking might be only of average importance (3). The developer, in his proposed manufacturing plant, provides for anti-air pollution devices on all his smoke stacks and monitoring equipment to comply with the air pollution policy. As a result, he gets a very high performance score (+2). He decides, however, to ignore the screening of his off-street parking. As a result of his performance on the off-street parking policy, he gets a negative score (-1). Compare the performance score of the two policies:

Air Pollution The rate of emission of particulate matter is encouraged to be less than 501 of the accepted level adopted by the American Society of Mechanical Engineers.
Developer's performance +2
Importance Factor X4
Developer's weighted score +8
Off-Street Parking Off-street parking is encouraged to be bermed, buffered,
landscaped, and maintained. Off-street
parking which is not landscaped is discouraged.
Developer's performance -1
Importance Factor X3
Developer's weighted score -3
In comparing two unrelated policies, the community has decided that air pollution controls are more important than aesthetic parking lots. The development has had a slightly negative impact on aesthetic parking lots. The development has had a positive impact on air pollution control and has made up for the negative points. The development is providing something that is an overall benefit to the community. In this way, a community can make decisions about development proposals, even when the community has conflicting values about what it wants to achieve as a result of development.
A developer's proposal will be measured against each relative policy and the score will be multiplied by the importance factor. Then each of the

weighted scores for all of the relative policies will be totalled. If the
developer obtains an overall score of zero or above and meets with all of
the absolute policies which apply, then a building permit will be issued.
The SPS is designed to give the developer incentives to provide more
than minimum requirements found in traditional zoning. To get better
quality out of a proposed development, some incentive has to be given to the
developer to encourage a better product which benefits the community. The
incentive provision trades development rights for the construction of a
desirable development proposal. The developer provides for the desired
benefit, such as terming and landscaping a parking lot. The incentive the
community gives the developer is to allow him to build at higher densities
than normally permitted. The more development meets with relative policies and the more points it accumulates, the more density the developer is awarded.
The rationale for the density bonus comes from two traditional
concepts: the concept that land use produces external or negative impacts
to adjacent properties and the concept of the general welfare. The SPS
through its policies attempts to balance external harms from development
with benefits to the community (general welfare). The external impacts can
be measured in costs to the public, such as sewer costs, when providing
service to new development. The landowner or developer can be required to
pay for the harmful externalities he creates.
When the community develops the bonus provision, there must be a
clear relationship between the density bonus and the benefit to the public.
If the increased density is balanced with the amenity to the public, then
the external impact analysis can justify the trade-off between the developer
and the community. For example, if the developer agrees to provide for

costly anti-air-pollution devices on a heavy industrial development, the pollution devices would improve air quality of the community. The town can justify giving the developer a bonus of more floor area in his development. The increased floor area in the developer's manufacturing plant might increase air pollution levels but the anti-pollution devices will control the additional pollution level and offset the disadvantages of the increase in floor area. The relationship between improving the air and regulating the additional density (floor area bonus) make the developer happy and benefits the community.
The general welfare concept is the second argument which can be used
to support incentive techniques as a regulatory device. The general welfare
concept suggests that regulatory devices can require action that enhances
the environment. This is an extension of the traditional interpretation of
the general welfare concept usually expressed in terms of protecting the
health, safety, morals, and general welfare. Under the broader definition of general welfare, the incentive techniques can be used to promote the general welfare which is a more positive action than mere protection of the general welfare.
The developer may be asked to pay a reasonable cost for development
under the broader interpretation of promoting the community1s general
welfare. Regulation may induce particular actions to be taken by the
developer because it is in the general interest of the community. This
indicates that the regulation is based on broad social objectives and will
add considerable support to the general welfare. In return for increased costs, the developer receives the density bonus.
Density levels under the traditional method of zoning are based on the externality argument. However, local government should be permitted to

relax density standards, if the community decides that the new density bonus
technique will produce a net social benefit. With additional public
amenities, the developing area will be able to handle the increased density,
. . 46
because the improved environmental quality will support greater densities.
In mixed use areas people will be able to live and work in the same area and fulfill shopping and entertainment needs. There will be less reliance on the auto. The urban quality will enhance urban lifestyles even with the increase in density, because developers will be providing for amenities not required under traditional zoning. In return, the density increase will enable the developer to make a higher profit on his project.
Not all of the positive points a development proposal receives will translate into a density bonus. Positive points will be offset against negative points. It is only the net positive score that is used to award a density bonus.
In order to award a density bonus, there has to be a baseline density
to start with. If the baseline density is established by an existing
conservative zoning ordinance, then the current density may be appropriate
to use as the base density. However, if the current density limits are high
and the bonus increases will drive the density to levels which are
politically unacceptable then the base density will have to be re-evaluated.
To establish a lower baseline density, the planners and neighborhood
residents should decide what the optimum density for the neighborhood will
be. The optimum density should be based on the comprehensive plan for the
area, the capacity of public services and facilities, the projected market
demand and the wishes of the residents in the area.
Once the optimum density level is determined, the average density bonus applied for by the developer should be subtracted from the optimum

density. The result is the baseline density to be used. The developer will aim to receive a net positive score on the relative policies which will allow the developer to build at the optimum density. The neighborhood in return will receive a mix of public benefits.
There are two kinds of analyses needed in determining the size of the bonus, the public benefit derived from the developer's performance and the economic benefit to the developer. First, the bonus should be based on the public benefit. With the SPS the bonus granted is based on the net positive score. For every net positive point (positive public benefit) the developer should receive a one percent density bonus.
Second, economically the bonus must provide a fair ratio of financial
benefit to the developer from the density increase compared to the cost of
providing the public benefit that qualifies him for the bonus. If the
benefit to the developer outweighs the costs, he will be interested in using 49
the bonus.
The baseline density must be realistic. It cannot be set unrealistically low. The density bonus must be worth the developer's effort. The density bonus compensate for the economic cost of adding the public benefit.
Traditional zoning is familiar to most people because it has been around for a long time. People feel comfortable with zoning, because they see it as protecting the status quo. The first time a local government announces that it is going to replace zoning with a new technique, people start to get nervous. On the other hand, members of the community can become disillusioned with developers obtaining permits to build through variance procedures. When this happens, local citizens cannot understand how the city could let the development happen, especially when variances occur in

their neighborhood. At that point the seeds for reform have been planted in the community. What follows is a step-by-step guide to develop the SPS and address local development issues.
Ideally the neighborhood residents should organize and approach the city council with a request for help with development problems. Many times, however, the initiative can come from the local planning office. The local planning office should know where and what kinds of development problems are occurring. A problem neighborhood should be picked and reforms attempted at the neighborhood level. *
Certain conditions should exist when picking the area. First, the area should be in some sort of transition. The Special Permit System is not a good technique for stable residential neighborhoods. Second, the neighborhood should have an established association which is interested in
working hard with the local planning office to formulate the Special Permit
_ ... 50 System policies.
The neighborhood chosen could be an area on the urban fringe or a core area of the community. In any event, the area boundaries must be defined. The defined area will then become the jurisdiction of the new regulations. After the neighborhood is chosen and the area boundaries are defined, data must be gathered. Information should include climate, vegetation, topography, hydrology, soils, natural hazards, sensitive area, growth trends, and the carrying capacity of existing and planned public services. All of this should be gathered by the planning office.
Once the data collection begins, the formulation of policies can occur. Writing policies which reflect the neighborhood's values can be very difficult, but is the most important element of the planning process. It is most important because citizens get the opportunity to formulate policy

which will have a real effect on their neighborhood. It gets them involved in the planning and development process. The actual drafting of the policies involves workshops between the planning staff and interested citizens. First, the group establishes a drafting committee made up of the neighborhood association, developers, interested groups and members of the planning commission. A specific planner should be assigned to work with the committee.
At one of the early meetings, the planner should solicit from the group a list of issues or problems. The problem list should be to the point and not include every problem under the sun, but specific development issues. With the list formulated, the planner should then draft the initial set of policies. The policies should be categorized under broad topics like environmental, transportation or social categories. The policies under each category would then address a specific issue.
The planner should include in the first draft the various absolute standards set by other levels of government which have jurisdiction over development in the neighborhood. This will unify the various single purpose permits under the SPS. These policies should apply to the entire community. Examples would be flood plain policies or policies relating to natural hazard areas. Other policies which would be community-wide are those which have been mandated by the comprehensive plan or required by state or federal law such as coastal zone management or water quality standards.
Finally, the policies which reflect the particular need of the neighborhood should be drafted. When mandatory action is absolute, the policies should require or prohibit the developer from a certain action. When the rule is not mandatory, policies should encourage or discourage the

developer from doing something, but points should be awarded on the basis of the developer's compliance with the rule.^
After the draft policies have been completed, they are submitted to the neighborhood drafting committee. At this time, the group should redraft the policies to fit their own values. This includes throwing out policies they don't feel are relevant, rewording others and writing new policies which the staff overlooked. Once the policies are drafted, the next step is for the committee to decide which policies are absolute and which are relative.
The next job for the committee is to assign an importance factor to
each relative policy. The committee may vote on the level of importance, if
they are having a difficult time deciding. Overall the assignment of the
importance multiplier should average to a three.
Finally the committee will .have to determine the optimum density level for the neighborhood. This will then establish the baseline density a developer can build to, if he receives a zero score.
The policies should be tested. This involves taking a development proposal that has already received a building permit, and matching it against the final rough draft. As new development requests are submitted, they can also be used as test cases.
At this point, the planning staff should hold a community-wide workshop to demonstrate the SPS. The workshop participants should include any interested citizens, interested groups, developers, banking officials, the planning commission, elected officials, architects, planners, engineers and lawyers. The participants should split into small working groups. After going through the policies, a hypothetical development should be matched against the SPS draft, so the participants can see how the SPS

actually works. This should give the SPS a broad based community support. Planners should incorporate the comments received from the workshop into a draft of the SPS for the entire community. Other identifiable neighborhoods can also begin drafting policies relative to their area.
Two points need to be emphasized about the neighborhood approach to
zoning reform. First, the policies which are relative to a specific
neighborhood apply only to that neighborhood and not to the entire
community. Second, at the conclusion of the neighborhood workshops the
committee will have to go through the legislative process to get local
ordinances changed. The neighborhood committee should submit the SPS draft
to city council for review and adoption. Presumably the draft will have the recommendation of the planning staff. The city council, because they are the elected officials, are the only body which can make the SPS draft into an ordinance. The neighborhood group then plays an advisory role to city council.
After the SPS policies have been drafted, the administration and procedural requirements of the permit system will have to be established. The SPS will be no more effective than its administration. The administration will need to be supported by efficient and effective enforcement.54
The local government has the authority to designate or establish an SPS agency to act on applications for development permits. The SPS agency should set up its own organization. The power to deal with particular development proposals may be given to a single officer or a committee. Decisions of either are treated as decisions of the SPS agency.55 This would allow for a technical officer to administer SPS policies. The thrust

is to get administration of land use development under one agency, rather than several agencies.56 Administration will then operate more efficiently.
The SPS agency will then adopt rules of procedure relating to power granted to the agency. The SPS agency should then publish a notice in the local paper, informing the citizenry of a public hearing before adopting the governing rules. Part of the governing rules must include a procedure for appeals. For example, if a developer is denied a permit, then the developer might wish to appeal to another part of the agency, who would review the administrative officer's decision.
Provisions for an administrative hearing to resolve conflicts would be required. The administrative hearing would be publicly held, after giving the public notice of the time, place and subject matter of the hearing. The SPS agency would designate the hearing officer or committee responsible for holding the hearing. All testimony would be under oath. The parties involved would be afforded the opportunity to present evidence and cross examine witnesses on relevant issues. Transcripts of the hearing would be kept. After the conclusion of the hearing, the person conducting the hearing would (within a designated period) prepare a written decision based on findings at the hearing.
If the developer is not satisfied with the decision, he may wish to
appeal to the local governing body. The final decision should rest with the
local governing entity.57 Many local governments are beginning to delegate
more regulatory functions to zoning examiners or zoning hearing officers in
order to reduce the vast amount of time spent in public hearings before
multi-member boards. In the event that the SPS agency decides to design procedings in this manner, it will be very important to develop adequate

performance standards for the policies. These standards will guide the
hearing officer when making decisions.
If the development in question has, because of its location, type or
magnitude, significant state or regional impact, then there should a higher
body to review the development proposal. This body could be a state-wide
land use commission which would review local decisions. To reduce
paperwork, time and inefficiency, a joint hearing could be held by the local
agency and the state land use commission. It would take a coordinated effort between the agencies, but the coordination would be well worth the effort.
Once a permit for development has been granted, the SPS agency will
publish a notice identifying the proposed development, location, and where
more detailed information can be found.
Enforcement of the SPS will also need to be provided for in the
administration of the reform measures. Civil actions may be necessary when
a person has violated the new code. Under this section, the local agency
may initiate proceedings to obtain an enforcement notice. The enforcement
notice would state the unlawful nature of the development, steps to be taken
to correct the violation, a date to comply with the notice and that the
violator may demand an administrative hearing.
If the property owner fails to comply with the enforcement notice,
the local governing body may either be authorized to enter the property and
correct the violation or obtain a decree from the court ordering 63
compliance. In order for the SPS to have any teeth in the enforcement of the code, a penalty section should be written. If an enforcement notice has been issued and steps have not been taken within the period allowed for compliance, then a fine should be assessed against the property owner along

with the costs incurred by the governing body. A lien would then be recorded against the property with the clerk and recorder of the county.
For efficient administration of the SPS, the SPS agency will need to establish a process where anyone putting up or altering a structure must obtain a special permit by visiting the local planning office (the SPS administrators)
The first objective of the planning staff is to arrange a pre-application conference with the developer. In this initial meeting, the planners should present the developer with a handbook which contains the text of the policies, background on the policies, any pertinent reference material, standards and criteria adopted for specific policies.
The absolute and relative policies pertaining to the particular neighborhood should be pointed out to the developer. Most of the planning staff's comments would be directed to opportunities for points which the developer could accumulate which are unique to the site. The developer should also be presented a chart which explains the steps he must follow to obtain a permit. He will also need an application form, requirements for the site plan, vicinity map, building elevations and any other graphic evidence he must submit when making application. Evidence forms will need to be developed for each policy. The developer would use the evidence forms (See Appendix, Item B, which is a hypothetical development proposal including evidence forms) to demonstrate how he will implement the policy. Then the staff uses the forms to comment on the developer's performance. Finally, a space is left on the evidence form for the decision made at the public hearing.^
The earlier the SPS objectives are made known to the developer, the easier it will be for a developer to plan his project. Many times, a

developer will want to submit a preliminary site plan for informal review by
the planning staff. In the early stages of designing a project, it is
easier to work out problems which might come up. This is also a good time
for the staff to negotiate with the developer to get the results of
development desired by the community. At this point, the developer will see where he can obtain positive points to get the density bonus he requires to make the project financially worthwhile. Some design features that would earn positive points will also make the project more marketable, such as landscaping and recreation facilities. By adding other amenities, such as bike paths or a day care center, the developer can obtain enough points to get the density bonus.
The developer can then instruct his designer what is needed for the site plan, working drawings, etc. Once the design is complete, the developer will submit an application (with the site plan, drawings, and evidence sheets for the policies) for the special permit. The planning staff will coordinate the review of the proposed plans with other departments such as building, engineering and other agencies, such as the state highway department and special service districts. During the review, the planner will do a policy-by-policy analysis on the evidence forms based on the recommendations of all the departments and agencies involved in the review. The planner will assess points based on the criteria and standards adopted by the city. If the points awarded don't agree with what the developer is asking, then the planner must state the reason for the difference. The developer has the opportunity to change the proposal to obtain the highest number of points.
When the application is first received the planning staff will have to post the property and publish a notice of the proposal in the paper, and

the time and place of the public hearing. At this point, (and actually the staff and developer will know beforehand) the size of the proposal needs to be determined. If the proposal is minor, that is a subdivision under four lots and building permits under $250,000, then the hearing officer at public hearing will decide the final outcome of the points awarded and the eligibility of the bonus. The hearing officer, who has been delegated the authority of making the determination by the governing body, will conduct the public hearing on policies with which there is disagreement. People wishing to challenge the staff's assessment of the points may do so by debating the merits of the project and the evidence submitted by the developer. After the debate the hearing officer will either assess the points as the staff did or assign a new point value. Each policy in question will be debated. At the end of the public hearing, the points are totalled and the permit is either granted or denied. If the permit is denied or the density bonus the developer wishes to receive is denied, then the developer has the opportunity to redesign the proposal and submit it again.
If the development proposal is major, one which is over $250,000, then because of its importance the governing body may wish to preside over the public hearing or leave the responsibility with the planning commission. In any event, the public hearing would be conducted in the same manner as the hearing conducted by the hearing officer.
The rationale is that for minor developments a hearing officer can make effective decisions and take some of the burden off the planning commission and governing body. This separation can speed up the decision-making process, when government becomes bogged down with many agenda items at public hearings. However, the development decisions which

have the greatest impact on the community will remain with the governing body.
The decisions of either the hearing officer or the governing body could be appealed by an aggrieved party to the elected officials for a rehearing. As with traditional zoning decisions, court review of a land use decision is always possible. (See the Development Review Process chart which follows).

................... SPS application

developer by staff
:2* jStaff negotiation
DATE; i DEVELOPERS PLAN i with develPer
6. not"in'Ag'rEEME NT 1 Meeting with WITH APPLICANT applicant
based on! I I mmm

There has not been a single court case which directly challenges or tests the SPS. However, there are several areas of the law which would govern the SPS. As in traditional zoning, the SPS regulations would have to be consistent with the comprehensive plan of the community. The New Jersey Supreme Court in Rockhill v. Chesterfield Township found that special permitting techniques would be proper if the regulation is premised and
explained on a rational basis (i.e. a comprehensive plan) and based on
meaningful criteria which would guard against arbitrary discrimination.
As to the question of mixed uses in a residential area, the court has taken
the sensible position that those uses which are deemed to be appropriate 68
should be allowed. Appropriate land uses should be designed to serve the
residents of the area. The courts' concern is with assuring that the
regulation is predictable, rational and that everyone is afforded equal
protection. It seems that the courts are aware that case-by-case review is
the only realistic way to easily channel particular types of development.
The reform techniques also must conform to the Fourteenth Amendment
to the U.S. Constitution: "No State shall____deprive any person of___property
without due process of law." This provision has never been considered a limitation on the police powers of the state, so long as there is ANY rational basis for the regulation.^0 The goals of the SPS policies must also be proper. That is the goals must promote community objectives. They would be improper if they promoted purely private objectives. If the regulation benefited only a class of private individuals then the SPS would be invalid.

Breckenridge, Colorado, and Fort Collins, Colorado are two cities which have adopted the SPS to govern land use decisions. Haines, Alaska and Englewood, Colorado are two communities which are seriously looking at the SPS technique. Haines' application of the SPS would be city-wide, while the Englewood's regulation would apply to only one of the city's neighborhoods.
Breckenridge, Colorado. Breckenridge is a small skiing community which had its beginnings with the mining craze in the 1800 's. It has experienced a tremendous amount of growth because of the ski industry and the recreation it has to offer.
In 1977, Breckenridge adopted the "Breckenridge Development Code," to insure that future growth and development took place in a manner which was acceptable to the residents. The Development Code applies to annexation, subdivision, improvements to land affecting development policies and extension of utilities. Development is divided into three types and administration is relatively quick. Type C is minor changes in existing buildings. The planning staff makes the decision to approve or deny an application within five days. Type B development is minor subdivision and building permits under $100,000. A public hearing is conducted by the Staff and decisions are made within two weeks. Type A is all other development. The public hearing and decisions are conducted by the Planning Commission within 40 days of application. In all instances, the Planning Commission may rehear a staff decision, and the Town Board may rehear a Planning Commission decision.
Absolute and relative policies were adopted to cover a wide range of community concerns. Topics covered by the policies include structural

issues, which make the building conform to the architectural style of the community. Policies include land use compatibility and intensity of use guidelines. There are also policies relating to the social, economic and environmental qualities of Breckenridge. There are 230 policies in all. Listed with each relative policy is the importance factor and possible plus or minus points the developer can score.
In some cases, to make sure that the policies are implemented as
represented by the developer, conditions are attached to the building
. 71 permit.
During the 1978 building season, the first year the permit system was
in effect, Breckenridge reviewed and decided permit applications of a total
value of almost $100,000,000.
In an interview held with Leslie Evers, Planner I, on June 18, 1982, she reported that the results of the Breckenridge Development Code have been favorable. City planners have found the point system and administration very workable. Developers are happy with the regulation, because it offers them flexibility. The planners and the community feel that the quality of development has improved, because it reflects the special architectural style of the community. The new land development system does leave one drawback, which the planning department is trying to resolve. The drawback is the density bonus. In some areas a density bonus is a "touchy issue". Increased density in such a small developed community is resisted by the residents. To resolve the issue, the community is trying to devise density bonus transfers from one area to another.
Leslie Evers also noted that other limitations have a greater impact on development than the development code. Development in Breckenridge is dependent upon water and sewer taps. The economy is also a limiting factor.

This year twenty projects have been approved, but have not begun because of the inability to get financing. Despite its minor problems, the Breckenridge Development Code in 1978 received the American Planning Association "Planning Award."
Fort Collins, Colorado. Fort Collins is set in the foothills of the Front Range of the Rockies. It is also the home of Colorado State University. Fort Collins has experienced a growth rate in the past ten years which has doubled the town's non-student population to 73,000 full-time residents.
After years of review by the City of development, the City found several weaknesses in their regulatory devices. Concern about leapfrog development, sprawl to the Southeast, the cost of providing services, and developers' complaints about the regulatory maze lead to Fort Collins adopting the Land Development Guidance System in 1981. The LDGS was designed to give landowners flexibility in developing their property and, at the same time, meet the physical, social, economic, and aesthetic needs of the community.
The LDGS is basically the SPS technique. Under the new system, no land use is automatically excluded from a specific site. Policy regulations ensure that each land use is compatible with adjacent land uses and fosters an overall healthy growth pattern. There are two types of criteria in the LDGS: absolute and relative. The developer must meet the absolute criteria. The developer under the relative or "variable" criteria accumulates points based on his performance. A score above the minimum percentage of points may be used to develop additional residential units. The developer is awarded a density bonus for a well designed proposal.

The review process is simple. There is a conceptual review and the
planning staff makes written comments to the applicant, after which the
application is filed. The application is routed to the different city
departments for review. Comments are written and sent to the applicant. A
meeting is then held with the developer to go over any revisions in the plan
which were bsed on staff comment. The staff writes a final report. Then,
the planning commission holds a public hearing to make the final
determination. The entire process takes seven weeks.
All applications for planned unit developments are evaluated under the LDGS. Any project, no matter how small, can be considered a PUD. Development not covered under the LDGS is governed under Fort Collins' traditional zoning. Developers have a choice as to which regulatory device they wish to be governed by. In the year the LDGS has been in effect, almost all developers- have chosen it over traditional zoning. Forty projects have been approved with one third on infill sites. The largest project is a 600-acre mixed-use development.
Cathy Chianese, a Fort Collins city planner, stated in an interview held on June 21, 1982, that the results of development under the LDGS have been good. Development has occurred on infill parcels of land and has been discouraged on the fringes of Fort Collins. The planning department has seen an upgrade in site design and landscaping since the LDGS has been in effect. The developers who have worked with the new system are pleased with the new regulations. Of the 65 projects which have been submitted to date, 99% of the developers have chosen the new regulations. Only 2 or 3 projects have utilized the traditional subdivision and zoning regulations. Ms. Chianese stated that one future problem can be forseen. Increased densities in older neighborhoods are starting to create neighborhood controversy. The

planning department is trying to resolve the controversy by educating the neighborhoods by showing them the benefits of development and the fairness of the LDGS. Again, despite minor difficulties, Fort Collins received tha American Planning Association's "National Planning Award" in 1982.
Haines, Alaska. Haines is a town of 1500 people positioned in a remote location in the panhandle of Alaska. Haines is northwest of Juneau, close to the border of British Columbia. The Haines coastline provides for an abundance of economic and recreational opportunities. Haines is very rich in natural resources. There is marine life of shrimp, crab and salmon. There is wildlife of moose, brown bear, mountain goats and birdlife. Along with the visual impact of a dramatic mountain backdrop, Haines stands out as a desirable place to live or visit.
Haines is also colorful because of its history. Having its beginning with the Chilkat Indians, in 1882 Haines became a missionary outpost. In 1898 Haines lay on the route to gold in the Klondike. Fort Seward was established in Haines to control crime associated with the gold rush.
Early industry such as mining, fishing, fish processing and lumbering operated out of Haines, but after economic difficulties of the 1970's, these industries floundered. As a result, Haines has a high unemployment rate. Its economy presently depends on tourism and fishing.
In 1977, the Alaska state legislature, realizing the state-wide
dependence on its coastal resources, passed the Alaska Coastal Management
Act. The Act mandates local planning for the balanced management of
resources and for the wise development of the coastal area. The Act also established the Haines coastal district, which was to devise and adopt a local plan to manage land and water development decisions.

In 1980, Haines adopted the Haines Coastal Management Plan. The management plan formulated coastal zone policies based on local goals and objectives and existing state and federal coastal management policies. The plan is designed to achieve a balance between resource development and resource protection. The plan does not, however, result in the physical regulation of land development.
Haines did not have a zoning ordinance to regulate land use and sought an implementing tool. In 1981, workshops were held to develop a land use code. The Haines Land Regulation Code evolved out of the workshops. The Haines code utilizes the SPS technique. The relative policy statements with high importance factors concern harbor facilities and support facilities to enhance fishing resources and tourism. Another set of policies emphasizes maintaining the visual, historical, and natural resources of the community. Policies were also drawn directly from the Haines Coastal Management Plan and the Alaska State Coastal Management Plan to insure the implementation of the local and state policies.
The intent of the Land Regulation Code has been to protect the valuable resources of Haines and develop local industry to put Haines back on its feet economically.
Englewood, Colorado. Englewood's borders are Denver to the North, Littleton to the South, Cherry Hills Village to the East, and Sheridan to the West. The city was incorporated in 1903. Little vacant land remains today in which to develop. With no annexation potential, because of the bordering municipalities, the remaining avenue for development is infilling the vacant parcels, building vertically, and increasing density.
Many of the vacant parcels of land under the existing traditional zoning lie dormant because of the zoning limitations. The planning

commission and city planning staff were concerned over the limitations of the zoning regulation and started looking for alternative ways to regulate which would give developers and the city more flexibility. Interest in the SPS technique was generated. The staff then studied the reform technique and decided to develop test policies. A community-wide workshop was conducted to test a hypothetical development proposal against the SPS policies and get the participants' reactions to the new technique.
Overall reaction were favorable, with special interest coming from one of the residential neighborhoods in Northwest Englewood. The Northwest neighborhood group's interest was further stimulated by dissatisvaction with previous variances which the Board of Adjustment and Appeal granted. The residents were not pleased with the residential development resulting from the variances, because the variances allowed shoddy development.
Instead of trying to "fight city hall", they asked the planning staff for help. The staff invited all of the residents to participate in a series of workshops. The workshops were set up to first identify the physical problems and then for the group to work on policy statements aimed at solving some of the problems. The group met once a month starting in October of 1981 and worked for seven months. The planning staff assisted them with technical advice. The Northwest Englewood citizens finished with the proposed SPS draft in June of 1982. They now plan to introduce the proposed draft to the Planning and Zoning Commission and eventually to City Council.
The proposed SPS looks similar to traditional zoning (as in lot area, set backs, and density) with one big exception. In addition to the regulations, the group has developed design criterion policies which the developer will have to address. A point system will be used to evaluate the

developer's proposal. If the developer does a good job on the design criterion, the neighborhood group, instead of giving a density bonus, will relax some of the regulations on lot coverage, side yard set backs, and
front yard setback. They see the role of the planning staff as negotiators with the developer in getting a proposed project which has aesthetic qualities. The advantage to the developer is that he can design a project with some flexibility, without having to seek variances from the Board of Adjustment and Appeals. This would produce a savings in time and money. In return, it would produce a more aesthetic residential development.
The citizen's group, which began as hostile citizens, has channeled their energy in a positive direction. It now has a good working relationship with the planning staff and city hall. It has also given the citizens the opportunity to let their ideas be known at the onset rather than waiting for a public hearing.
Since the proposed reform measures have not been adopted by City Council, it is too early to tell what will result from development in the neighborhood. The planning staff is pleased, however, with the results of the workshop. Refer to the Appendix for the proposed draft, Item C.

In this concluding section the SPS will be analyzed. The analysis will point out the criteria on which desired regulatory devices should be measured, and if the SPS meets with the criteria. Second, the results of development regulated by the SPS will be assessed. Finally, recommendations will be made regarding the Special Permit System.
The purpose of this thesis and the SPS reform technique is to recognize the dysfunction of development today and to realize that the regulatory tool of traditional zoning is not adequate to resolve today's urban problems.
The SPS concept is the best of two worlds. On one hand, it emphasizes small town decision making with sense of community. On the other hand, it can deal with a big city with diversity, broad cultural resources, opportunity and privacy.
The ideal land use decision making system should provide for comprehensive, accurate, creative and dynamic rules which are applied to development proposals to gain quality development. The rules should also be applied in a manner which is fair, consistent, understandable, predictable and coordinated.
How the SPS Measures Up. To assess the SPS against the above criteria, each factor will be discussed.
Comprehensive The land development regulations should address more than just height, bulk and set back issues.75 Instead, regulation should address every developmental issue of concern to the community. The SPS is comprehensive because, in developing the policy statements, the community is able to address a wide range of issues, such as social, economic,

environmental and design criteria of a proposed development. For example, if the value held by the community is to give everyone the opportunity for decent housing, a policy statement in the SPS would address that issue. A proposed apartment development would then be judged on whether it meets the policy as decent housing based upon its density, open space, school conditions, transportation, etc.
Accuracy Regulatory issues should be addressed accurately based on
community problems and community data. The decisions resulting from the
land development regulations should also be accurate. This is also a good
reason why development should be regulated by elected officials who
represent people whose lives are likely to be affected by it. Accurate representation does not always come from the private sector.
The SPS promotes the accuracy of the regulatory tool by getting citizens involved in the beginning of the process. The policies are an accurate consensus of the community, because they are evolved out of a public workshop. The SPS policies are also accurate in their consistency with the comprehensive plan and other absolute requirements of state and federal regulations that apply to local jurisdictions. Support data used in developing the policies also helps in decision making processes and obtaining accurate results. Such support data might include demographics of the community, existing soil conditions, traffic volumes generated by existing land uses, and special performance standards used.
Creativity Land development regulations should foster creativity on
the part of the developer.77 The SPS uses the carrot rather than the stick.
It offers developers an increase in density in return for his added costs of
providing public benefit. This approach is based on curbing the
externalities of development. The SPS regulation is not so much concerned

with the exact method a developer uses to internalize externalities, but it
is more concerned that the policies dealing with externalities are met.
This gives the developer latitude to be creative when designing his project.
Due to new demands for land and new techniques in dealing with land use
demand, it is hard to predict what future development will bring. The SPS
tries to accommodate shifts in demand and land development techniques by
addressing the impacts of development and not the specific use.
Dynamics The land use regulatory system should be dynamic and be
able to deal with change. Communities change their values and opinions as
new opportunities and new problems arise. The objective is to develop a
system which is flexible by dealing with development on a case-by-case
basis. However, it must have an administrative procedure which every
development proposal must go through. The system must also give the
administrators some discretion in the use of the regulations. The SPS is dynamic in several ways. First, the SPS is formulated based on the comprehensive plan which is a problem-oriented analysis of the community. The policies in the SPS state objectives, not only in physical terms, but relate to other social, economic and environmental problems. The objectives provide for implementing strategies which rely on the administration and the innovative techniques of the developer. Secondly, the developer is able to have the flexibility to respond to changes in the market because the SPS does not preclude a certain type of use at a given site. Finally, if there are variables in the community which change, such as new political, social or physical problems, the SPS can accommodate the change by changing the related policy statement.
Quality Quality development is hard to define. A Rockefeller Brothers Fund task force examined the issue of quality development and

concluded that no ideal development pattern existed but that quality of development was in important goal. "Quality is marked by respect for human and natural values. It is harder to create quality than to preserve it, for creation requires more choices and its goals are inherently complicated." The task force hoped "to maintain a balance of power between the conflicting forces and to create institutional structures that can reconcile their differences so that we can achieve quality development." It recommended that a process be established that would focus on quality from a variety of
81 viewpoints.
The SPS is a process which establishes the opportunity for quality development. First, it provides for a process in which the individual is able to express his values in terms of quality-in-life issues. Those value statements (policies) encourage development to provide for the visual integrity of the community. Over and above the traditional segregation of use approach, the SPS looks at the adverse impact of development on the values of the neighborhood. If development can meet with acceptable community standards, only then will the development be allowed.
Fairness The basic ideal of fairness requires that government
provide each citizen with "due process of the law." Due process requires a
system in which decisions are rationally made, in a process open to the
8 2
public, on the basis of facts and within a reasonable period of time. The SPS meets with these criteria because of the procedure adopted into the regulation. Decisions are based on evidence provided for each policy by the developer. At a public hearing, in which citizens may refute the evidence, decisions are based on the findings of fact that the developer has or has not complied with the policies. A time limit is also written into the

procedure so that the parties involved may know the outcome within a reasonable period of time.
The SPS is fair to all parties involved because the process develops a political foundation to launch attacks on the community's problems and developers are not excluded from developing because of a specific use. Instead, the rules state with precision the standards necessary to get development approval. The rules guard against arbitrary decision-making.
Decisions should be made on the basis of as many relevant facts and
should not be made on irrelevant or extraneous matters. The basis for decision-making under the SPS is how consistent the development conforms to the applicable policies.
Certainty The goals and policies must be clearly stated so that the public understands what is required. Developers need to know what they may or may not do. The SPS policies are developed by each neighborhood and should be clear to the developer. The rules also insure the predictability of the outcome. The prescribed standards used are the means by which the merits of a proposal are judged. If a proposal measures up, it passes. If it doesn't, both the developer and the community know the specific areas where revisions can be made in order to get approval.
Efficiency The process and administration should be efficient. In the past few years, with the increasing cost of development, people have gotten very frustrated with bureaucratic red tape, multiple public hearings and increased permit fee costs. As a result, the costs incurred by developers are ultimately passed on to the consumer. The SPS can do much to streamline the process. Support materials informing the public about the regulatory procedure should be provided along with any graphic aids which would clarify the adopted policy standards.

Where possible the process of local review should be examined to see
where it can be improved and streamlined. The process should provide
guidance to the developer instead of positive or negative reactions. Some
of the economizing procedures can be incorporated into the SPS. For
example, the pre-application conference held with the developers can answer
many questions the developer might have. A one-step permit center where the
applicant can drop off plans which are routed to proper departments can also
help reduce time, paperwork and cost. Salem, Oregon, features a one-stop
permit service. During the first year of operation, the volume of permits
rose from 17,000 to 20,000. At the same time, the operating costs dropped
from $74,000 to $72,000. Year two savings should be even more striking
because the $72,000 also includes $12,000 in start-up costs.
Application routing procedures can also be sped up by having a development review committee made up of different city departments. In that way review at staff level can become quicker. Once the application goes to public hearing, under the SPS only one hearing is required rather than hearings with multiple public boards. In gaining efficiency, the cost of implementing the SPS then bears a reasonable relationship to the benefits achieved from the SPS.
The Results of the SPS. The SPS will allow for a more economical use of land and strengthen a sense of community. Site selection for development is carried out through the market place rather than being constrained by a designated use district. This can result in mixed-use development. Offices, shops and recreational facilities can be located in the same place where people live. People will identify with a specific location. They will want to become involved with what is happening around them, including development regulation.

Other benefits will be gained through mixed use development. It will result in savings of public and private money. Instead of hopscotch and sprawling development, the SPS will enable development to become more concentrated and centralized. The centralization will not require miles and miles of sewer and water lines or great number of streets to be built. This will save the taxpayer. In return, a person will not be as dependent on his car. Being able to work, shop and play in the same location where a person
lives will save on driving time and the cost of gasoline.
Mixed-use development benefits both the public and the private individual. It aids in restoring a sense of community.
The SPS focuses on the benefits of development. Through the SPS technique communities can encourage development to provide for desirable improvements related to the comprehensive plan and over all public welfare. Requirements for development can even be "fine-tuned" for the needs of an individual neighborhood through the creation of individualized policies.
Why the Developer will Cooperate. Opponents to land use regulation would say that regulations and restrictions will bankrupt developers. It is true that in complying with the SPS the costs to the developer in building his project and providing public benefits will be greater than under traditional zoning. In return, however, the SPS offers the developer a density bonus. The more public benefits gained from the development, the more the developer gains through increased density. Developers will comply voluntarily with the relative policies because it is in their economic interest to do so. The community will get developers to spend their money for a public benefit, and in return, the developer has an opportunity to make additional profit because of the increased density.

SPS provides a fair way to allocate land use. Because the SPS does not assume that a development according to use is automatically allowed or prohibited, the system does not allocate use of land by drawing districts on a map. Instead, the market mechanism is used to determine a rational use of land. In an urban environment with the myriad of problems, a new system is needed to allocate land use in order to meet with growing problems.
SPS and its Impact on Social, Physical and Environmental Issues. Through the established policies, conflicting issues such as economic development and natural resource protection can be resolved. The trade-offs between providing for social needs such as low and moderate income housing and environmental protection are recognized. Environmental and aesthetic objectives can be achieved without doing so at the expense of social responsibility.
The trade-offs are decided when the individual policies are given an importance factor based on the values of the community or neighborhood. In this way, decisions about aesthetic quality, protection of natural resources and social responsiblity can be balanced. Based on the importance of a social issue, the developer can provide for jobs in the community (if that is the social issue) and mitigate the negative aspects of the proposed development.
Benefits of the Administration of the SPS. The SPS can be lengthy when all of the policies are added together. This could make the application very lengthy. However, the procedures of a pre-application conference with the city staff and the developer, the one-stop permit desk, coordinated staff review and one public hearing can significantly reduce the front-end costs to the developer. This will also result in a more

efficiently run office which will result in lower administrative costs like the Salem, Oregon, experience.
SPS is a rational way to make land-use decisions. The main reason for land use regulation is to gain for the community as many of the good impacts as possible and avoid as many bad impacts as possible. In the beginning of initiating reform regulation, the community and each neighborhood has the opportunity to develop their own policies. Once the system is in place, development is judged according to how it performs or measures up to the policies. The developer's performance for each policy is scored by the staff. When there is a disagreement between the staff and the developer, it is settled at a public hearing. The performance of the developer is decided at a public hearing based on the evidence provided. Once the points are totaled, the outcome of the public hearing is known. The decision reached is objective because it is not based on a petition filed against the development, applause, hisses and boos, but on the policy-by-policy debate.
In conclusion, the long run benefits of the SPS program will provide incentives to improve the quality of development while improving the environmental, aesthetic and social quality of the community. The SPS will also force builders to plan projects in greater detail, which will ultimately make the project run smoothly. The SPS will allow for more rational, accurate and economic land use decisions. For local government it will help prevent sprawl and generate social responsibility. The SPS is also a rational way for local government to make decisions about proposed development.

The prerequisite for effective land use control is a clear statement of purpose based on the community's comprehensive plan, its goals and needs. A carefully outlined description of procedure and a qualified staff to review development proposals is essential. The provision of a public hearing for the ultimate decision, which allows for all parties involved to be heard, is also essential.
The SPS controls must be:
Predictable and should not restrict the developer's creativity in responding to given problems.
Efficient in its function and clearly spell out submission requirements and review responsibilities.
Simple to administer, which means that the obligations of all parties involved must be easily understood.
Clearly stated to guide design features which are wanted and needed in the community.
One last suggestion with regard to the density bonus must be made. The success of the density bonus is not measured in terms of stimulating construction but whether it gains positive benefits for the community. However, in some cases a developer might be able to accumulate enough bonus points to build at very high densities. This would allow a project to be built to extreme height or bulk, and in the process, wipe out the desired effects of open space, visual, social or economic amenities. If this is the case, the community should specify an upper limit on the density bonus.
Ultimately, the Special Permit System must be suited to the unique social, physical, environmental, administrative, political and economic realities of each city wanting to initiate the reform technique.

Item A is the workbook for the Englewood community workshop. Included behind the cover page is an agenda, followed by the policy statements which would regulate development.
Item B is a hypothetical development proposal. The proposed development application includes the developer's evidence sheets which address each policy statement found in the SPS workbook. The evidence sheets also include a place for the staff recommendations, and a place for the final decision, when the application goes to a public hearing.
Item C contains the SPS policies which were developed by the Northwest Englewood citizen's group. The SPS policies were then worked into the R-2-C Medium Residence District draft of June 16, 1982. In the R-2-C draft, the regulations were referenced back to the policy statements of the SPS. The numbers in parentheses by the letter items are the numbers which refer to the policy statements. For example, "b. Permitted principle uses" on page 1 has "(5-1)" beside it. "5-1" is the policy found on page 6 of the SPS workbook, which has to do with permitted density. Also included in the proposed R-2-C is the Design Criterion.


9:00 A. 9:05 A.
9:30 A. 10:30 A
10:45 A Noon -1:00 P. 1:45 P. 2:15 P. 2:30 P.
3:45 P. 4:15 P.
M. 9:30 A. M.
M. 10:30 A. M.
Welcome by Planning Commission Chairman
Discussion of Planning issues to be addressed and purpose, process and result of session.
Slide/lecture on permit system.
.M. 10:45 A. M. Break
(Participants assigned to small groups)
. M. 12 Noon Fill out workbooks.
1:00 P. M.
M. - 1:45 P. M.
M. - 2:15 P. M.
M. - 2:30 P. M.
Decision-making procedures.
Mock presentation by two developers. Break
M. 3:45 P. M.
M. 4:15 P. M.
Small groups assign points to development propositions and make decision on application.
Presentations from group leaders.
M. 5:00 P. M. Summary how to complete ordinance,
statement from City about commitment, timetable for implementation, role of public in process.

1.1.1 Water Conservation The City (encourages) (requires) water conservation such as but not limited to water saving shower heads and water closets, recycling of water, automatic sprinkler systems, and native landscaping materials.
1.1.2 Wasting of Water A project likely to waste use of water is (prohibited) (discouraged). A project is encouraged to mitigate negative impacts.*
1.2 Air Pollution A project likely to produce gasses, particulate
matter or odors which affects the neighborhood to any significant degree is (prohibited) (discouraged). A project is encouraged to mitigate negative impacts.
1.3 Nuisances A project that will produce one or more of the
following to any significant degree is (prohibited) (discouraged) from being located near residential uses.
1.3.1 Glare.
* A developer should not be penalized for negative impacts on the environment if a project is designed to alleviate or mitigate those
negative impacts.

1.3.2 Noxious smells.
1.3.3 Noise.
1.3.4 Dust
1.3.5 Noxious fumes.
1.4 Storm Runoff A project is (prohibited) (discouraged) from
being designed and built to accept less than the same quantities and velocities of storm water runoff it now accepts or to pass on a greater volume or intensity of storm runoff than it presently does.
1.5 Storm Retention A project is encouraged to provide facilities
for the retention of storm water drainage which reduces the impact of existing runoff on downstream properties.
1.6 Flood Plain.
1.6.1 a. Structures to be permanently occupied by humans are (prohibited) (discouraged) from locating in the flood plain, b. A project'is required

to mitigate the on-site negative impacts of the flood plain as required in the flood plain ordinance.
1.6.2 A project is encouraged to mitigate negative impacts of the flood plain off-site or on neighboring properties.
2.1 Handicapped Facilities A project is (required) (encouraged)
to be designed and built to be accessible to the handicapped.
2.2 Retain Neighborhood Concept A residential project which is
likely* to house children is (encouraged) (required). (If this policy had been a required policy one year ago, then the Simon Center could not have been built.)
2.3 Housing Mix.
*Likeliness is judged on number of bedrooms, amenities in a project, and marketing techniques.

2.3.1 A residential project with over 10 units is (required) (encouraged) to permanently maintain 10% of the total number of dwelling units in the project as housing for low-income elderly and families.
2.3.2 A residential development of 10 or more units which includes 11% to 25% low or moderate income housing is encouraged.
2.3.3 A residential development of 10 or more units with more than 50% low and moderate income housing is (discouraged) (prohibited).
2.4 Support System for Elderly A service oriented project which assists the elderly in their specific daily needs is encouraged.
2.5 Day Care A commercial, industrial or public project employing more than 20 people per shift is (required) (encouraged) to provide day care facilities on the premises.
* A service oriented project could include a beauty shop, transportation service, cleaners, or medical and dental services; however, it would not be limited to those said categories.

3.1 Conservation of Nonrenewable Energy Resources A project is
(required) (encouraged) to employ extra insulation or renewable sources of energy for 50% of its heating and electrical energy needs. Some examples are solar, wind, wood-burning stoves, geothermal, and methane. One point will be awarded for every 10% of conservation.
3.2 Recycling Conservation and recycling of non-renewable re-
sources is (encouraged) (required). Examples include but are not limited to separation of glass, metal and paper trash receptacles, stabilize and contour slopes, and use of recycled water for irrigation.
3.3 Passive Solar A project is (required) (encouraged) to use
design, construction and landscaping techniques which will reduce heating and cooling costs. Examples are buildings with solar orientation, use of deciduous trees on the south for shade in summer (but not on the north side) and using evergreen trees on the north for protection against the wind, but not on the south side of the lot which would block solar access.
3.4 Decrease in Miles Traveled Mixed use projects which incorporate more than one of the following activities of work, shopping and living activities within a project are (encouraged) (required).

4.1 Public Fiscal Balance.
4.1.1 A project which will have a positive fiscal balance for each taxing jurisdiction is encouraged.
4.1.2 A project which will have a negative fiscal impact is discouraged.
4.2 Fiscal Balance Waiver A low to moderate or elderly residential
project which achieves a net point total of zero is exempt from the public fiscal balance policy. (Residential units consume more in services than they pay for with property taxes and user charges.)
5.1 On-Site Public Facilities A project is (encouraged) (required)
to replace to city standards existing curb, gutter, sidewalk, and streets which have been damaged during the construction phase. A developer is (encouraged) (required) to provide a letter of intent to repair public facilities which have been damaged during construction.

5.2 Utilities A project is required to meet policies of the
private utilities.
5.2.1 Electric.
5.2.2 Gas.
5.2.3 Cable T.V.
5.2.4 Telephone
5.2.5 Trash
5.3 Public Safety -
5.3.1 A project is (required) (encouraged) to meet with the rules and regulations of the police and fire departments. (Building Permits are processed at a later time than when a project is applying for a permit to allow development.)

5.3.2 In addition, a project is (required) (encouraged) to provide for its own services such as but not limited to a security system, sprinkler system, and exterior lighting.
5.4 Bicycle Facilities A project is (required) (encouraged)
to provide bicycle parking facilities.
5.5 Bicycle Ways A project is (required) (encouraged) to
dedicate bikeway linkages as indicated on the adopted Bicycle Transportation Plan. A project is (discouraged) (prohibited) from failing to dedicate bikeway linkages.
6.1 Alternative Transportation A project is (required) (encouraged)
to dedicate and construct facilities to support alternative means of transportation such as bus stops, bus shelters, bicycle and pedestrian paths.
6.2 Ingress/Egress A project is (required) (encouraged) to
limit points of ingress and egress to public streets, and ingress/egress points are (discouraged) (prohibited) from being dangerous.

6.3 Parking
6.3.1 A project is (required) (encouraged) to provide adequate off-street parking and is (discouraged) (prohibited) from creating offsite parking overflow as required by Englewood Parking standards.
6.3.2 Structured parking which gives the result of an increase in open space over regular off-street parking is (encouraged) (required).
6.3.3 Off-street parking is (encouraged) (required) to be bermed, buffered, landscaped and maintained.
7.1 Temporary Jobs Ten full-time equivalent
created by the project is (encouraged) (required), one point for every 10 FTE jobs created.)
construction jobs (Consider giving
7.2 Permanent Jobs Business that will provide at least four
full-time equivalent permanent jobs is (encouraged) (required) (Consider giving one point for every four FTE permanent jobs created.)

7.3 Economic Diversification Development which provides for
permanent jobs NOT in the retail, ________________, and _____________
sectors of the economy are encouraged. (Fill in the blanks with at least one more category. Some other examples of the economic sector might include service, manufacturing, public or industrial oriented business).
7.4 Affirmative Action A project which implements a viable
local affirmative action hiring program is (encouraged) (required).
8.1 Building Scale and Orientation.
8.1.1 The scale of a building (its height, bulk, setback, and lot coverage) is (required) (encouraged) to be compatible in appearance with the scale of neighboring buildings. A scale which is incompatible with neighboring buildings is (discouraged) (prohibited).
8.1.2 The long axis of a building is (encouraged) (required) to have an east/west orientation. A building with the long axis oriented north/south is (discouraged) (prohibited).

8.2 Buffering A project is (required) (encouraged) to be designed,
built and maintained so as to buffer* residential uses from potentially non-compatible uses. The design should provide the following features:
8.2.1 Reasonable access to light and air.
8.2.2 Solar access.
8.2.3 Personal privacy.
8.2.4 Protection from nuisance.
A project which does not buffer residential uses from potentially noncompatible uses is (discouraged) (prohibited)
*Buffering would separate uses through design features such as building setback distance from the lot line, dense landscaping, opaque screening
or fencing.

8.3 Screening Screening of mechanical equipment, storage areas,
trash receptacles and parking lots from public view through the use of berms, fences, landscaping, or other acceptable means is (required) (encouraged). A project which does not incorporate screening of mechanical equipment, storage areas, etc. is (discouraged) (prohibited).
8.4 Signs.
8.4.1 Signs shall comply with the Englewood Sign Code.
8.4.2 Comprehensive signing which is compatible with the architecture of the building is encouraged.
8.5 Open Space and Landscaping -
8.5.1 Impermeable surfaces which cover less than 85% of the building site and open space which covers more than 15% of the building site and is planted and maintained with live vegetation cover is required.
8.5.2 Open space which is greater than 15% of a project is encouraged to be landscaped and maintained to maximize solar access and create buffers between development and potential incompatible uses (in-

cluding public streets), to provide for visual amenities and create a pleasant environment for outdoor activities.
8.5.3 Open space which is greater than 50% of the site is (restricted) (discouraged).
8.6 Trees A project is (restricted) (discouraged) from removing
any existing trees on the building site.
8.7 Bikeways A project is (encouraged) (required) to physically
separate the bicycle paths from streets and/or pedestrian walkways.
8.8 Siding A project is (discouraged) (prohibited) from using
unpainted metal siding, sheet metal, corrugated metal, or reflective glass.
8.9 Color A project is (encouraged) (required) to be painted
an earth tone color.
8.10 Building Exterior Design A project is (encouraged) (required)
to incorporate design which is similar to adjacent buildings in terms of color, material, texture and finish. A project is (discouraged) (restricted) from incorporating design which is not similar to adjacent buildings.

9.1 Redevelopment A project is (encouraged) (required) to lo-
cate on, or redevelop property which is unused or substantially under utilized. (The point here, is trying to encourage redevelopment of property in areas that need rejuvenating through a more intense use of the land.)
9.2 New Neighborhood Activites A project which introduces an
activity not presently found in the neighborhood is encouraged. (A neighborhood which contains development where people can live, work, shop, and play without leaving the neighborhood is the goal to be achieved with this policy.)
9.3 Use Compatibility A project is (discouraged) (prohibited)
if it is a use which is incompatible with the neighborhood. (A project is presumed compatible if it achieves a zero or net positive score on the "project design" policies taken together).

9.4.1 Base Residential Density Permitted density is one dwelling unit per 3,000 square feet of lot area.
9.4.2 Permitted Residential Density Density will be allowed to increase by 2% for every net positive point received by a project.
9.4.3 Base Commercial Density Density for non-residential development is the total of the gross floor area in a building, and shall not be greater than two times the area of the lot on which the building is located.
9.4.4 Permitted Commercial Density Density will be allowed to increase by 2% for every net positive point received by a project.

Policy Absolute Relative (Performance) x Importance
1. Environmental Factors
1.1.1 Water Conservation A R (+2/0) x =
1.1.2 Wasting of Water A R (0/-2) x
1.2 Air Pollution A R (0/-2) x _
1.3 Nuisances
1.3.1 Glare A R (0/-2) x =
1.3.2 Noxious Smells A R (0/-2) x _
1.3.3 Noise A R (0/-2) x _
1.3.4 Dust A R (0/-2) x _
1.3.5 Noxious Fumes A R (0/-2) x
1.4 Storm Runoff A R (0/-2) x __
1.5 Storm Retention R (+2/0) x _
1.6 Flood Plain
1.6.1 a) On-site Impacts A R (0/-2) x =
1.6.1 b) Mitigate on-site Impacts A
1.6.2 Off-site Impacts R (+2/0) x =
2. Social - Cultural Factors
2.1 Handicapped Facilities A R (+2/0) x =
2.2 Retain Neighborhood Concept A R (+2/0) x
2.3 Housing Mix
2.3.1 10% of Total A R (+2/2) x =
2.3.2 11% to 25% R (+2/0) x _
2.3.3 More than 50% A R (0/-2) x =
2.4 Support System for Elderly R (+2/0) x
2.5 Day Care A R (+2/0) x

Policy Absolute Relative (Performance) x Importance
3. Energy Factors
3.1 Conservation of NonRe-newable Energy Resources A R (+5/0) x
1 pt. for every 10%.
3.2 Recycling A R (+2/0) x =
3.3 Passive Solar A R (+2/0) x _
3.4 Decrease in Miles Traveled A R (+2/0) x _
4. Fiscal Factors
4.1 Public Fiscal Balance
4.1.1 Positive Fiscal Balance R (+2/0) x
4.1.2 Negative Fiscal Balance R (0/-2) x
4.2 Fiscal Balance Waiver A
5. Service Factor
5.1 On-site Public Facilities A R (+2/2) x =
5.2 Utilities
5.2.1 Electric A
5.2.2 Gas A
5.2.3 Cable T.V. A
5.2.4 Telephone A
5.2.5 Trash A
5.3 Public Safety
5.3.1 Police and Fire A R (+2/2) x =
5.3.2 Private services A R (+2/0) x
5.4 Bicycle Facilities A R (+2/0) x _
5.5 Bicycle Ways A R (+2/2) x

Policy Absolute Relative (Performance) x Importance
6. Transportat ion
6.1 Alternative Transportation A R (+2/0) x
6.2 Ingress/Egress A R (+2/-2)x
6.3 Parking
6.3.1 Off-street Parking A R (+2/-2)x
6.3.2 Structured Parking A R (+2/0) x
6.3.3 Buffer Off-street Parking A R (+2/0) x
7. Economic Factor
7.1 Temporary Jobs A R (1 pt/10 jobs) x
7.2 Permanent Jobs A R (1 pt/4 jobs) x =
7.3 Economic Diversification A R (+2/0) x
7.4 Affirmative Action A R (+2/0) x
8. Design of Project Factor
8.1 Building Scale & Orientation
8.1.1 Scale A R (+2/2) x
8.1.2 Orientation A R (+2/2) x
8.2 Buffering
8.2.1 Access to Light & Air A R (+2/-2) x
8.2.2 Solar Access A R (+2/2) x
8.2.3 Personal Privacy A R (+2/2) x
8.2.4 Protection from Nuisance A R (+2/2) x
8.3 Screening A R (+2/2) x

Policy Absolute Relative (Performance) x Importance
8.4 Signs
8.4.1 Englewood Sign Code A
8.4.2 Sign compatible with architecture R (+2/0) x ,
8.5 Open Space & Landscaping
8.5.1 Impermeable surfaces A
8.5.2 Open Space greater than 15% R (+2/0) x
8.5.3 Open Space greater than 50% R (0/-2) x
8.6 Trees A R (0/-2) x _
8.7 Bikeways A R (+2/0) x s
8.8 Siding A R (0/-2) x __
8.9 Color A R (+2/0) x _
8.10 Building Exterior Design A R (+2/2) x _
9. Urban Form
9.1 Redevelopment A R (+2/0) x s
9.2 New Neighborhood Activity A R (+2/0) x _
9.3 Use Compatibility A R (0/-2) x
9.4 Density
9.4.1 Base Residential Density A
9.4.2 Permitted Residential Density R 2% for every point
9.4.3 Base Commercial Density A
9.4.4 Permitted Commercial Density R 2% for every point
Absolute Policies ___
Score on All Policies

for the

Joe Smith's Ambo-Cab Service
I am an ex-medic who served in the Viet Nam war. I currently own my own house at the corner of First Avenue and First Street. I would like to build a garage at the back of my house to operate an ambulance service. Englewood and the neighborhood really need this service because I am located between the hospitals and the elderly housing projects. The service would increase Englewood's tax revenue. I would also be the only ambulance service in the area.
My lot is 6,250 sq. ft., and could accommodate more building space. My house and garage contain 1,500 sq. ft. I would need the new garage housing the service to be around 750 sq. ft. It is my understanding that this would increase the density of the building space on my lot by 50%. According to the City's policy for increasing the density, I would have to come up with 25 positive development points (2% density increase for each positive point) in order to get the increased space I need. I will accomplish this by meeting all of the absolute policies and provide some extras in the design of the facility. I plan to live in the house with my family so I can be available at night to drive the ambulance. My wife has been sick, so I need to be at home to take care of my baby boy.
The garage for the ambulance will be in the back, with access off the alley. The garage will be equipped with handicapped access to the bathroom and an alarm and sprinkler system will be built in for safety purposes.
I will have off-street parking for my employees (six, two employees per shift, three shifts per day). I will also landscape and screen my business from the neighbors so I won't be a nuisance. Open space will be 45% of the lot. The building will be cinder block which I will paint white. I will do whatever I can to meet the minimums required by the City, but due to my economic situation, I cannot provide for anything over the minimum. Please consider my position while reviewing my plan.

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