8 of 10 zoning ordinances now teed up for possible vote on April 21 by Bloomington city council

On Wednesday night, Bloomington’s city council took a half hour to complete the tedious process of introducing 10 separate ordinances that would change the city’s basic law on land use in the city.

After that, in just about three hours, the council wrapped up its initial discussion on eight of the ordinances. That sets up a possible vote to enact them at the council’s regular meeting next Wednesday, April 21.

The remaining two ordinances will almost certainly require more time in front of the city council, just as they did previously when the plan commission heard them.

They’re controversial enough that they’ve led to competing websites and yard signs.

One of the disputed ordinances covers the allowed use of duplexes, triplexes and quadplexes in residential neighborhoods. The other ordinance is the proposed new citywide zoning map.

The city council will take a first crack at the two more controversial ordinances, starting April 28 when it convenes a committee-of-the-whole session.

Even if the eight ordinances discussed by the council on Wednesday cover less contentious ground than the other two, they aren’t without their own controversies. And it could be too heavy a lift for the council, at next Wednesday’s regular session, to take votes on all eight.

On Wednesday, councilmembers indicated that they’d like to propose amendments to some of the eight ordinances. Debate and public commentary on any amendments will factor into the time it takes to complete the council’s work on the eight pieces of legislation.

One theme that cut across two different ordinances was the required daylighting of projects to the public.

Ordinance 21-17, about use regulations, would eliminate the requirement that interested parties be notified when a “by-right” accessory dwelling unit (ADU) is constructed. And Ordinance 21-20, about administration and procedures, would raise the threshold for a “by-right” site-plan review in front of the plan commission from 30 dwelling units to 50.

In connection with those ordinances, the very concept of a “by right” project got some scrutiny on Wednesday. What it means for a project to be “by right” compared to “allowed as a conditional use” will likely become a spotlighted topic, when the so-called plexes (Ordinance 21-23) are debated.

Notification about ADUs

The current unified development ordinance (UDO) says that the construction of an accessory dwelling unit (ADU) is an allowed accessory use in the R-districts. An ADU is an additional residential dwelling unit on the same lot as a single-family dwelling—either within the same building as the single-family dwelling unit or in a detached building.

An accessory use, like an ADU, is permitted only in support of some use that is designated in the UDO’s “Allowed Use Table” as permitted on the site.

Because they’re currently an allowed use, and not subject to a hearing in front of the board of zoning appeals (BZA)—like a conditional use would be—ADUs are often described as “by right.”

The current UDO also requires that nearby property owners be given notice about ADU construction. A notice has to be mailed to “all persons owning land within 300 linear feet from any property line of the parcel for which an ADU is being requested.”

The planning staff’s recommendation, which is part of the Ordinance 21-17 recommended by the plan commission, is to delete the noticing requirement for ADUs—because they are “by right.” There is no public hearing or meeting where the ADU gets presented, so there’s no chance to remonstrate or otherwise affect the outcome.

According to Bloomington’s development services manager, Jackie Scanlan, when nearby property owners receive a notice, it raises the expectation there’s an opportunity for them to weigh in on the matter, when in fact there is no such chance. The staff memo on the topic says, “[W]e have found that notice for by-right projects creates confusion for those receiving the letter.”

At Wednesday’s committee meeting, councilmember Matt Flaherty highlighted the fact that if a single-family house were built on a vacant lot, that specific use would not require a notice to be sent to nearby property owners.

Councilmember Dave Rollo acknowledged that Flaherty’s point was well-taken, but countered, saying, “I think the ADU concept is relatively new. And I think that the notification idea is not a bad idea.” Rollo continued, “I think that the advantages may well outweigh any downside.”

Rollo is thinking of proposing an amendment to the ordinance to retain the interested party notification.

Flaherty responded to Rollo by appealing to the idea that “by right” uses should be treated uniformly, in equal ways. If there were a notification requirement for building a new single-family home, Flaherty said, he might feel differently about a requirement of notification for an ADU.

Flaherty also cited concerns about the potential for daylighting issues that are more appropriately kept private in the context of ADUs. ”Accessory dwelling units are often rented for far below market rate, or sometimes for no money at all, often to family members who may have particular special needs, or maybe in a sensitive care situation,” Flaherty said.

He wrapped up the point by saying, “I think people have their reasons sometimes for wanting to add that type of housing, but not kind of have a public discussion about it.”

Thresholds for plan commission site plan review

A point Rollo made in his comments on ADUs had been that a notification requirement, while it might not change the basic result, would still be “in the interest of it leading to better outcomes.”

Earlier in the committee meeting, he had fleshed out in more detail the concept of better outcomes in connection with Ordinance 21-20. The ordinance would, among other things, raise the threshold for a “by-right” site-plan review in front of the plan commission, from 30 dwelling units to 50.

The plan commission review, with its associated public hearing—even for a “by right” proposal—could yield information from the public that might lead to a better outcome, Rollo said. “For instance, I could think of a development that might have HVAC units or something like that, that may, if the public were to come to a meeting, express their concern about noise, or, visual impairment. That might result in a berm or a tree buffer, or fencing, and so forth.”

Rollo continued, “That might influence the outcome, because the developer may well decide that it’s good to be a good neighbor. And because this is a public hearing, it allows that sort of interaction.”

Even under the proposed new standard, the 85-unit hotel conversion approved by the plan commission on Monday would have still been required to undergo a plan commission review.

But the pre-2019 UDO had a 100-unit threshold. Before 2019,  the 85-unit hotel conversion would not have needed a plan commission review. Senior zoning planner Eric Greulich on Wednesday characterized the reduction from 100 to 30 units as “drastic.” Raising the threshold back to 50 was kind of a “middle ground,” Greulich said.

At Wednesday’s committee meeting, councilmember Susan Sgambelluri said she was interested in knowing how many projects would not have been subjected to plan commission review, if the 50-unit threshold had been in place, compared to the 30-unit threshold.

Conditional use versus permitted (“by right”) use

The potential for public scrutiny, and the relatively likelihood of influencing an approval decision—or slightly altering the details of the outcome—is likely to be a part of the future debate on Ordinance 21-23, which designates the allowed uses for plexes.

The current UDO disallows duplexes for R1, R2, and R3, but allows them as permitted use in R4.

In Ordinance 21-23, as amended and recommended by the plan commission, duplexes are a permitted use in the basic residential districts (R1, R2, R3, and R4).

A permitted use is often called a “by right” use.

That contrasts with the staff-recommended conditional use for duplexes in R1 through R4. A conditional use means that a project has to go in front of the board of zoning appeals (BZA) for approval.

In the 2019 deliberations on the UDO, some opponents of conditional use for duplexes, who argued for disallowing them, would point to approvals by the BZA as a kind of inevitable outcome, making a conditional use tantamount to a permitted use—so goes the argument.

Whether a project is approved is a poor way to measure the difference between conditional use and permitted use—so goes the counterargument.

One of the ideas of the counterargument is that a requirement to undergo a hearing in front of the BZA will winnow down the conditional use applications to just those that are approvable, and to just those applicants who are willing to engage their neighbors at a public meeting.

The willingness of a conditional use permit applicant to engage with neighbors has been cited during the most recent round of UDO plan commission hearings—as possibly discouraging smaller mom-and-pop landlords from building a duplex, if they have to face neighborhood feedback that they perceive as abusive.

What are the UDO criteria that the BZA would have to use to evaluate a conditional use permit for a plex?

A basic kind of requirement that is set forth in the UDO involves compliance with federal and state law, and any entities that have jurisdiction over the property. Issues covered include regulations on floodplain, water quality, erosion control, and wastewater.

Another one of the conditional use evaluation criteria is that public services and facilities are adequate for the project—like streets, potable water, sewer, stormwater management structures, schools, public safety, fire protection, libraries, and vehicle/pedestrian connections.

The approval of a conditional use permit also requires the BZA consider whether any adverse impacts are minimized and mitigated. A project is not allowed to cause significant adverse impacts on surrounding properties. It’s also not allowed to create “a nuisance by reason of noise, smoke, odors, vibrations, or objectionable lights.”

An applicant for a conditional use permit is also required to make “a good-faith effort to address concerns of the adjoining property owners in the immediate neighborhood as defined in the pre-submittal neighborhood meeting for the specific proposal, if such a meeting is required.”

Schedule

The two controversial ordinances, on plexes and the citywide zoning map, are due to be taken up for discussion in a city council committee meeting set for April 28.

It’s probably unlikely for the April 28 meeting to wrap up the council’s committee discussion on either of the ordinances.

There’s a 90-day timeline after the plan commission’s certification of its positive recommendations to the city council by which the council has to act—to either adopt, amend and adopt, or deny the ordinances. If the council does not act, then the ordinances become law automatically.

The ordinances were certified to the city council on a range of different dates, as the plan commission took their votes over the course of a couple of weeks. The chronologically last ordinance—the new citywide zoning map—was certified on April 7 which translates into a 90-day deadline of July 6.

Does it ever happen that zoning laws get enacted automatically, because no action is taken by the legislative body within 90 days? Yes. The same statutory 90-day window applies to the county’s layer of government.

And last fall, the county commissioners did not act within 90 days on a rezone that had been recommended by the county plan commission, which resulted in automatic enactment.

Checklist

Ordinance Council Committee Discussion Council Vote
Ord 21-15 Technical Corrections
Ord 21-16 Ch. 2 – Zoning Districts
Ord 21-17 Ch. 3 – Use Regulations
Ord 21-18 Ch. 4 – Development Standards & Incentives
Ord 21-19 Ch. 5 – Subdivision Standards
Ord 21-20 Ch. 6 – Administration & Procedures
Ord 21-21 Ch. 7 – Definitions
Ord 21-22 Deletion of RE Zoning District
Ord 21-23 Duplex, Triplex, and Fourplex
Ord 21-24 Proposed Zoning Map

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