Reading up on why Tucson's zoning examiner quit

The city of Tucson's zoning enforcement officer resigned this week, citing "political interference" from the City Council.

Linus Kafka's letter of resignation didn't give specifics, but there was a case earlier this year which saw the Council vote to affirm that he had no authority to consider the neighborhood effects of any rezoning for historical purposes. In fact, the law gave him every right to do so.

In a rather incredible move, the Council took Kafka up on his double-dog dare, essentially telling him Valley of the Moon's land owners didn't have to consider neighborhood concerns about the venue during a rezoning for the 2.3-acre North Side parcel.

Kafka insisted the owners try to work with neighbors during three hearings he presided over in February, March and April. The folks from Valley of the Moon said "no" three times and finally got their way by going over Kafka's head to the Council.

Kafka then told the Council to go ahead and rezone the land but only if the Council thought, in his words from a report prepared for the Council, that:

• The Zoning Examiner cannot consider neighborhood testimony or evidence regarding the negative land use impacts of (Historic Landmark) zoning
• The Zoning Examiner has no discretion to continue a case in an HL rezoning to request details regarding how an applicant will operate their property or how it impacts neighbors.
• The Zoning Examiner has no jurisdiction during an HL rezoning to request land use conflict resolution between neighbors and applicants.
• The Zoning Examiner has no jurisdiction to determine whether the current land use of a property is legal, since the HL rezoning does not address land use.
• Under HL rezoning, the Zoning Examiner does not have authority to examine whether a non-conforming use is valid.

The Council took him up on it, voting 7-0 to approve the rezoning on May 19.

To help you understand what happened, I need to get you up to speed on what a zoning commissioner is and how rezonings work.

Some governments use a Planning and Zoning Commission to hear rezoning and land use cases and then make recommendations to a local elected leaders, like a city council, commission or county board of supervisors. Tucson instead has Kafka. So this is like the entire P and Z Commission resigning. It's not a small deal.

Zoning is simple. When you buy land with a house, yard and white picket fence you have the right to the land, the house, the yard, the fence and all the uses allowed under zoning laws. If you buy the same land with residential zoning and decide to launch a Snake-O-Rama on it, you need to have the land rezoned for a commercial designation that allows for the the rattlers, constrictors and such. You in no way have a right to the aforementioned rezoning but, if you are willing to wheel and deal, you may get one.

A good first step is to find out the city's general plan mapped your land as great for reptilian fun. The general plan is a basic guide, updated every few years, to figure out what should go where.

Zoning is meant to protect neighborhoods, guide growth and traffic and at the end of the day, protect the property values of existing property owners. To get a rezoning, an applicant must prove the city would be better off with what he wants to do than with what the zoning says is allowed. It requires wheeling and dealing.

Kafka wheels and deals for the city and the Valley of the Moon case is one of three I found that saw the City Council undercut his ability to drive a bargain.

Valley of the Moon

Earlier this year Valley of the Moon's board of directors requested to have their property at Tucson Boulevard and Allen Street down-zoned to Historic Landmark status.

Down-zonings are rare because they limit what a property owner can do on their land. In Arizona, down-zonings can only be done at the property owners request, unless the property owner is paid for the loss of value on the site. The Snake-O-Rama adds value through an up-zoning. The Historic Landmark limits property rights and is a down-zoning.

Typically, down-zonings are slam dunks – especially with neighbors. Who bitches about their personal slice of heaven getting quieter? It's just that Valley of the Moon didn't have that effect on the neighborhood and it was a "non-conforming use," according to city zoning laws.

Translation: Valley of the Moon was zoned for houses but is instead a rather eccentric events center, home only to (as supporters describe it) magic, enchantment and perhaps the occasional fairy. It's a venue that attracts visitors to concerts, hosts weddings and boasts other performances. With them come traffic, crowded parking, noise and the occasional bad apple among the attendees getting obnoxious in the neighborhood. Every single events center in a neighborhood around the world has these issues. The down-zoning meant Valley of the Moon needed something from the city and that gave the neighbors their chance to raise concerns.

A non-conforming use happens when a government creates a zoning map that leaves some parcels out of compliance with the new rules. Rather than shut them down, they get grandfathered. A local government then tells the land owner just keep doing what you do and as long as you do it, you can keep doing what you do, so long as you don't change what you do.

Neighbors had pre-existing problems with Valley of the Moon's owners and saw the rezoning as a chance to address them because — as anyone who covered local government for years and years can tell you—the neighbors suddenly had a bludgeon.

Tucson Historic Preservation Foundation president Demion Clinco represented the Valley of the Moon board before Kafka and argued, "No, don't use that bludgeon," because the rezoning request didn't change anything. It just restricted what future owners of the land could do. No, no, he told Kafka to tell neighbors, this is not the time to hit us with all those long-standing complaints.

Kafka wanted the board and Clinco to try to work with the neighbors. A rezoning gives neighbors "legal rights they don't ordinarily have," Kafka said during the Feb. 5 meeting.

Hearings on the rezoning in February and March ended when Kafka asked the Valley of the Moon people to meet with neighbors. They did not. A third hearing in April barely got started when Valley of the Moon said no again and preemptively.

The Council steps in

Two days after Kafka's hearing, the Council took up the historic designation during an April 7 study session. Councilwoman Karin Uhlich said the historic zoning designation "missed the mark," suggesting that it was broken when Valley of the Moon was the only applicant seeking that kind of rezoning. Kafka folding neighbors concerns was what was breaking it, Uhlich said.

"In our rezoning process, we rightly ask people asking for up-zoning to listen to our neighbors," Uhlich said. "There's not an intention to say in conversation that there might not be legitimate concerns from neighbors but those need to be addressed separate and apart from preserving historic treasures."

Neighborhood concerns about noise and traffic and other things can be addressed through other avenues.

Uhlich and Clinco were on the same page with the rest of the Council. However, City Attorney Mike Rankin told the Council the city's approach to historic preservation remains a rezoning even if it's a down-zoning and state laws allow neighbors to bitch and talk about the use. Rankin even warned the Council off looking like they were interfering with the Valley of the Moon case by discussing it.

There was one historic rezoning up for consideration anywhere in the city rezoning process. Hearing the item at all was a not so subtle hint to Kafka to back off.

Kafka was not out of line. He was following the law. If the Council doesn't want historic preservation subject to rezoning rules then it's possible to protect historic buildings outside them. That option? Deed restrictions.

Anyone thinking about a historic overlay zone should first ask an attorney about the difference between that designation and a deed restriction. Neighbors don't have the right to intervene with deed restrictions and they have the same force of law as the rezoning.

Clinco had good points about Valley of the Moon's owners being the first to negotiate the Historical Landmark rezoning process right up to the point where he said there should be no negotiations on a rezoning. He took it a step further, telling Kafka he has no real authority. I'm trying to imagine someone telling that to a Planning and Zoning commission in any town in America. I'm trying to imagine what Clinco would say if some rich lawyer representing Del Webb told someone like Kafka, "We'll address neighborhood concerns after we get the rezoning we want when neighbors have no legal leverage and we, the developer, hold all the cards." I'm trying to imagine a rich lawyer telling a volunteer P and Z commission to bugger off like Clinco told Kafka.

Kafka noticed Clinco's transition from reasonable point to unmitigated gall. So he became a bit of a dick — albeit a funny one if you speak the language of bureaucrats — when he wrote his findings up for the Council, recommending the rezoning only if they bought what Clinco was selling.

The Council did on May 19, voting unanimously to approve the rezoning without addressing a single neighbor's concern.

So, I'm guessing maybe that was what Kafka meant by "political interference."

Cut the trail (seriously, cut it)

Former Pima County Supervisor Dan Eckstrom called it the Sam Lena Rule. He would not meet with a developer after Planning and Zoning commissioners made a recommendation.

To meet with them after the fact can undermine the commission's leverage to get deals done on rezonings. The city doesn't have a commission for this. It has Kafka (insert surrealist joke here). It can muck up the process if a developer can basically ignore the zoning examiner.

Who needs to meet with neighbors because Kafka says so? Go to the Council. Kafka gets a concession and we'll see about that....

A February 2014 case saw a developer ask for and receive a rezoning of 12.53 acres at Speedway and Sarnoff Drive. The rezoning was from light residential to a heavier residential use. This is the most frequent kind of rezoning in that it's an "up-zoning."

Up-zonings immediately add value to a property. If you bought that house with the white picket fence and got it rezoned for a six-story building, you could turn around and sell it for a much higher price than what you paid. Hey, after your land was rezoned you don't need to build your Snake-O-Rama to make money off it. You bought your house zoned for residential and now can sell it rezoned for pit viper-commercial. It's how land speculators often work. Buy cheap. Rezone big. Sell high. God bless America.

Ray Schneider owned the land and went through the rezoning process. He faced some neighborhood protest. Schneider's proposed rezoning was compatible with the city's land-use planning for the site. The planning staff approved of the higher-density 5-unit per-acre development. Still, it's a rezoning and no clear right to change the zoning is inherent. Schneider made concessions. Among them, he and Kafka negotiated a greenway trail along Robb Wash, at the edge of the property. The projected price tag? About $250,000.

He got the rezoning and sold the land. This is where it got interesting because the buyer, Doug Kennedy, decided he didn't want to build the trail along the wash. So he asked the City Council directly to overturn the deal the previous owner had made with Kafka to get the rezoning. Last week, the Council reduced the developer's requirement to a payment of $55,000 to the city toward the design, construction or "study" of the trail.

That sucks. A $200,000 cut on a single case isn't that big of a deal but the precedent it sets is potentially damaging to neighbors. Property owners of land within 300 feet of a rezoning are – by law – informed that a request has been made. They can protect their investment by engaging in a public process. No notice goes out to those neighbors when a provision they negotiated – or that the city did on their behalf – goes back to the city this way. Neighbors would have to be reading every City Council meeting agenda ever after to watch for a developer well after the fact trying out wiggle out of a deal that won a rezoning.

Councilman Paul Cunningham, the East Sider who represents the rezoned area, said the neighbors weren't that interested in the trail in the first place and that they "got exactly what they wanted."

The developer felt rooked because he was quoted $30,000 for the price, which would have been closer to $230,000. Frankly, that's Kennedy's problem for not doing due diligence before he bought the land, which came with the terms and conditions.

There goes another knee out from under Kafka.

Oh my lord ...

Why doesn't a snake bite a lawyer? Professional courtesy. Get it?

A horse walks into a bar and the bartender says "why the long face?" Get it?

A landowner wants a PAD rezoning for a landfill on a non-conforming use. Get it?

Aw, come on. That's funny. You just gotta know your terms.

A planned area development is the designation a big project uses to get out from under detailed zoning law to build something cool. Williams Center on Broadway and Columbus Avenue is a planned area development. A planned area development is not a landfill.

Remember how we just talked about non-conforming uses? A planned area development as a non-conforming use in the form of a landfill zoned residential landed on Kafka's desk in 2012.

Kids, Valley of the Moon is to neighborhood as dog is to cat. Neighborhood is to landfill is as dog is to M1A1 Abrams battle tank. It's just not in the same group of nouns.

Yet in 2012, Kafka heard a case where well-connected Jason Tankersley, the the owner of a landfill that was a non-conforming use, asked for his 45 acres in a residential neighborhood near Speedway and Prudence to be up-zoned. The landfill had been there for a quarter-century and was grandfathered in perpetuity, but the applicant wanted to add landfill mining operations, an incinerator and green energy production.

For a guy who opined that the city should smash heads together to bring in better jobs, even I know there is such a thing as "site selection."

The proposal didn't match the land-use plan.

It didn't match planned area development rules.

It didn't match the surrounding uses.

And it's a non-conforming use.

Still, somehow city staff recommended approval.

It's not hard seeing why Kafka recommended a denial.

Obviously, the Council voted to approve it 7-0 when it came before them in 2013.

To Cunningham's eternal credit, he didn't just like the plan. He loved the plan. Between Kafka's desk and the Council meeting, the developer did make it a better project. It took more than a year but Cunningham —whose ward includes the project, which he lives next to — couldn't have been more enthusiastic in his making of the motion in favor of the idea.

"This landfill does so many different things in terms of green-collar jobs and job creation. If you want these jobs – here they are," Cunningham said, adding: "The most embarrassing thing about this process is how long it's taken." It took nine years ... so ... that's a bit long.

At the end of the day, the staff endorsed it. Even Councilman Steve Kozachik called it a "model" for how a rezoning should be done.

Kafka has no more knees.

The process counts

It's easy to think of politicians as corrupt or corruptible. It's a common shrug of those who watch city government and this Council to think they just care about their friends. Indeed, city politics is more cut-throat than the face the City Council provides at meetings — but what seems to be happening is that the those who sit on it can have an over-developed urge to fix things. That's different from the fix being in. Council members run for office usually because they like getting their hands dirty. The trick is to look clean while doing it.

To avoid the perception that the fix is in when it comes to rezonings, as little activity as is humanly possible should follow between a P and Z Commission/Zoning examiner making a recommendation and the Council voting on it. They can send it back to be fixed but when projects gets fixed after the fact, it looks bad.

Kafka's job has been to decide cases based on their merits, the law and sound planning done by the community. If he's not doing it well either fire him or move him. If he's going to approve a rezoning, part of his job is to make it a better deal for the city than what is otherwise on the land.

The problem is the Council is clearing paths around the zoning examiner's hearing room. No, it's not every developer, just some — and that is a bigger problem.

Now we have an inconsistency in the process. Some get treatment A and the rest get treatment B. Problems get fixed at the Council level. Who does the Council fix things for if it's some and not others? Political friends? Political adversaries? Political novices? I think it's more squeaky wheels getting the grease, so those who gripe get attention.

Cities don't establish a sound process to avoid corruption. They do it so the system doesn't look corrupt. The idea is to make rezoning a professional process above reproach so that the community buys into the process. Often though, councilmembers defer to the colleague in whose ward a requested rezoning sits. That member works it out, the others go along and get their way on their ward's rezonings. It's courtesy.

That's people. I'm talking process. It's not as much fun, but maybe this is what Kafka was talking about, and maybe it's what businesses mean when they say they have a hard time knowing what to expect when dealing with the city.