Midway May Rezone Six Parcels to the C-4 Zone

Commissioners Clarify Concerns Before Vote 

by Robin M Johnson

After holding a public hearing on the proposed C-4 zone planning commission members asked a few follow-up questions of city staff before deciding whether to recommend the code text to the city council for further consideration. Following their decision they discussed rezoning six parcels of land south of Memorial Hill in the conceptual C-4 zone.

Steve Nichols, planning commission chairman, asked if the commissioners had any questions for the city staff. 

Nancy O’Toole, planning commission, referenced the developer incentive chart in the proposed C-4 code and said it seems like many incentives need to be completed to get down to the desired 20% commercial, 80% residential. “I don’t think that’s feasible.  This is an incentive, but I don’t see someone coming in and doing all these incentives and then having only 20% commercial and 80% residential.” She said if they can’t reach that “it would defeat the purpose of the C-4 zone.”

Henke said getting down to just 20% commercial is the most likely way a developer would be able to make his project work. With residential at 80%, “If the buildings are condominium like and they are sold, that brings in money rather rapidly. It makes it easier for a developer to come in and create the buildings, create the development. They need to get down to this 20/80 … to (qualify for) the lending to do a project. They are going to have to do items on this chart to get to that.”

Jeff Nicholas, planning commission, asked if developers would be attracted to this code or  “if they would feel like there are too many restrictions to make this profitable, to get financing, to attract commercial businesses, to sell residential units? From a financial perspective would a developer say this will work, we can make money and we can partner with the city to do something really great?  If we approve or adopt this code then what if no developers are on board with it?” 

Henke said, “There’s always the opportunity to go back and amend the code again or go back to the C-2 zone, but we have a lot of parcels that are zoned C-2. They have been that way for decades and they haven’t been built on. Just because we write a code doesn’t mean it’s going to be developed anytime soon.  From conversations that I’ve had, and we haven’t written it really to cater to the developer, but there are developers who are watching this process closely, and so that tells me there is some incentive to actually use this code.”

Kevin Payne, planning commission, said regarding the $100,000 fee in lieu for 1.5 points open space credit; Was it ever considered to exchange an acre of land in lieu for 1.5 points rather than the $100,000 to provide the city with the actual open space in case land prices increase substantially over the next five or ten years, to prevent the city getting short changed and ensure an equal exchange rate?

Henke said, “There are really three different options for creating open space” within the city. In addition to the $100.000 fee in lieu, developers can donate an acre of land with development rights for 1.5 points, or just buy the development rights for .75 points and leave the land in the property owners name to remain open space. Regarding the fee he said, “This code could be amended, if for whatever reason, land values out pace that 5% per year … so we are not short changed.”

Payne also asked how can the city have greater design oversight on the details and make sure this is a good quality development overall. Is it possible a developer could be required first thing to agree to greater input and oversight from the city in terms of design review?

Henke said, “Currently commercial development … goes to the architectural and visual review committee. We do have architectural standards listed in our code, we have a good committee and they do look at all the projects. We do have quite a bit of leeway or oversight just in our code. We don’t require every element because we have a page and a half of those. We make sure there is character to the structure that’s approved through the city. We do have oversight … we can really dictate what they will look like, the outside structure.”

Corbin Gordon, city attorney, said, “From a purely legal standpoint I think you could, legally, create a specific architectural requirement in this zone if you wanted to and attach that. I don’t think that’s an issue that’s been discussed but you could create that if you wanted.”

Henke said the code text amendment is in a more polished form this month,  we are definitely a lot closer towards a finished code than we were a month ago.  It’s expanded in size about double.” He said the planning commission has several options for recommendation to the city council; deny the present code, approve the present code or even modify items like height or density and then approve, or continue the item to a future planning commission meeting for further consideration. “ If you do have a continuance I would suggest maybe a special work meeting between the planning commission and the city council to look at some of the details of the code.”

Nichols asked, “Staff, are you comfortable that the code is in a position it could be sent forward?” 

Henke said, “I think that we’ve made quite a bit of progress over the four months with this. If it went to the city council I’m sure they’d take their time with the code and there would be more public hearings that are required as we go through a code text amendment. I feel it’s still a work in progress but we’ve got it to a point that we could probably move forward.”

Nichols called for a motion. Jeff Kohler, planning commission, made a motion to "recommend that city council consider moving forward the code text amendment to add the regulations to the C-4 zone.” O’Toole seconded. 

Before calling for a vote Nichols said, “From my own personal perspective I think this code is better than it was last time we looked at it; but there still are some details I wouldn’t mind working through further, particularly with city council. But I don’t have a vote.

“Is there any further discussion, other than my comment?” Nichols asked. With no further discussion the Commissioners Kohler, Nicholas, O’Toole, and Payne voted unanimously to recommend moving the proposed C-4 code forward to the city council.

Immediately following the planning commission considered the actual rezone of six parcels, 20.45 acres total, into the new C-4 zone. Henke said, “The current zoning is about 2/3’s C-2 and 1/3 R-1-11. The proposed zone would be the code that we just talked about in the previous item.

“Now there is property to the north that’s in the county and it is in our annexation declaration so potentially some of this other property could be brought into the city, the city at that time can decide what zoning to designate on that property.  (This property) is part of the Whitaker annexation but the county has agreed to keep these parcels in the county for the time being until the property owners come before the city with a petition for annexation."

The six properties include Horizon Provider LC, 2.5 acres; Brent Gold and the John Demkowicz, 8.93 acres; Karl Dodge, 6.17 acres; Thomas Grose Real Estate LT, 0.85 acres; White September LLC, 0.84 acres; White September LLC, 1.14.

Henke said, “This is a legislative item; the city does not need to rezone the property unless they feel it’s beneficial for the community. On the other side, if we don’t rezone the property then somebody could propose a development using the current zoning.”

Kohler asked if the motion coming forth to rezone this property to a C-4 zone Midway doesn't have yet would be like the previous motion, "a punt up to the city council." for consideration. 

“This will be a recommendation to the city council; there will be no need to rezone the property if the city council doesn’t adopt the code. The code will come first, then the rezone,” Henke said.

Nichols again called for a motion, then discussion. O’Toole made a motion to recommend the city council consider rezoning the six parcels into the C-4 zone. Kohler seconded. No discussion was raised. The vote was unanimous.