Zoning process is usually tedious but payoff is in approved projects

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Title:
Zoning process is usually tedious but payoff is in approved projects
Date:
July 1, 2007
Area(s) of Practice:
Real Estate Law
PDF File:
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During the past 50 years, retail development or the lack of it has defined the character of almost every community in the United States since zoning laws have been enacted. It is clear that the successful development of modem, clean and convenient retail spaces in this country has become a role model for nations around the world. The boom of retail in areas such as China and South America can be directly linked to the development achievements in the United States. The extraordinary development of retail is directly affected by the relationship of three major parties. Those parties are the developer of the site, the local planning board and the retailers themselves. These three parties all have to work in concert on decisions that affect their own interest while considering the demands of the other parties.

Where many residential and commercial projects stumble is a failure of one or more of the parties to reach a mutually beneficial accord. The beauty of the retail development process is that unlike many residential and commercial projects, almost all large-scale retail projects are subject to site plan approval from the local town planning board, which forces the parties to work together. Under site plan approvals a developer can get approval to go beyond the otherwise strict zoning restrictions in exchange for certain elements that me municipality may desire. The cooperation can result in a more generous floor area, lesser set back, higher height requirements, or innovative parking solutions in exchange for more green space, or a colonial exterior to match the surrounding community.

The site plan approval, also known as a special permit jurisdictions, will take into account all aspects of the development. Many times in order to achieve the best design and fastest track to approval, it is necessary to meet with members of the local planning board in what is known as a pre-application meeting. The informal atmosphere of the pre-application meeting gives the developer a chance to hear comments from staff which he can later incorporate into his proposal. Discussion at these meetings can span issues from the massing of the building down to the colors of the lamp posts. Initially, managing these opinions may seem frustrating, but the ultimate results are often better for the developer than just a coolie cutter solution to the issues.

The actual steps differ across jurisdictions, but one good example of a thorough process is the land use process in New York City. This process is called the Uniform Land Use Review Procedure. The first step of the process is the pre-application meeting as discussed above. The next step requires preparing the actual application which is accompanied by renderings of the site.

Preparation of the application involves giving a description of the proposed project, architectural plans and an environmental review of the impact of the development. The impact analysis on the surrounding community takes into account issues such as land use, zoning and public policy, socioeconomic conditions, community facilities and services, open space, shadows, historic resources, neighborhood character, hazardous materials, infrastructure, solid waste and sanitation, energy, traffic and parking, transit and pedestrians, air quality, noise, construction impacts and public health. Review of these issues could take several months or a year depending on the project.

Once complete, the application can be submitted to the staff of the Department of City Planning. DCP must certify the plan as complete before it is subjected to the scrutiny of a number of other parties. The plan must go through the local council members, the community board, the borough president and the city planning commission all before it reaches the City Council.

At that point, there is a vote which results in an official recommendation on the plan. Though it is a recommendation, it is usually followed by the other members in a one-hand-washes-the-other sort of process. Dealing with all of these entities may seem foreboding, but with the right relationships it can become a vehicle to help obtain support for the project.

Most municipalities do not have as many layers involved as New York City, but they all do require the same level of personal relationships to be able to present an application and deal with all parties in good faith. For example, a good relationship with the local officials will help gain approval for larger parking decks or more signage from the local communities' zoning boards. These deals are negotiations, offering tradeoffs such as providing landscaping for the property or restoration of a local park: will serve the project well (as well as the long term relationship with the community).

I have worked on projects in which the planning board allowed for an otherwise prohibited use if the developer agreed do several public amenities, one of which was to build a public esplanade and to allow access to the waterfront. This project was previously an industrial use and the developer wanted to create a residential building with retail throughout the complex. Once the development was fully reviewed and explained to the community, the project was well received and considered a major improvement to the area.

Another project involved in the development of a residential building in which the developer requested extra floor area and retail on the ground floor. Normally, these requests would not be allowed, but one of the reasons the local community board recommended approval was because the developer agreed to use the space for retail shops and not a restaurant or cabaret that would have gone against the character of the area.

The building was also well-received because it was designed to reflect the historic 19th Century manufacturing buildings which had been prevalent throughout the area. As a developer, once you get involved in the public process, your hurdles can become catalysts by simply tailoring the lock of the building to the surrounding community or restricting certain uses that it does not want in the area.

Ultimately the key to success with retail development is working through issues with the community and the retailers themselves Instead of viewing the relationship as adversarial, focus is on how the parties can work together towards a better property.

The added benefits to dealing with the local planning boards are numerous because concessions can be made in exchange for being sensitive to the community's character. In this way a much more attractive and well-thought-out retail development can be achieved, and it is through this process that the best retail centers in the world have been conceived and achieved.