41st & Harvard: Is the Comprehensive Plan meaningless?

When you buy a home in the middle of a neighborhood, surrounded by other homes, it's reasonable to expect that you won't wake up some morning to find your neighbor's house gone and a zinc smelter or slaughterhouse being built in its place. People less for a home next door to something busy and noisy, more for homes in quiet neighborhoods. That kind of price differential wouldn't make sense if any parcel could suddenly change to any other use. We have zoning an d planning laws in place to provide for orderly changes in land use, to protect the investment we've made in our property. Our zoning laws aren't perfect, but they ought to be applied evenhandledly. That doesn't appear to be happening in several recent controversial zoning cases that will soon be coming before the City Council.

One case is a proposal to rezone an area around the southeast corner of 41st & Harvard. The current zoning is RM (residential multifamily). As with the proposed F&M Bank at 71st & Harvard, the proposed change to the zoning runs counter to the city's Comprehensive Plan. Once this zoning change is approved, a second zoning change, called a Planned Unit Development (PUD), would combine the existing commercial zoning at the corner (the site of the Christmas tree lot) with the newly rezoned commercial area, plus some areas zoned for offices and single-family residential lots, to create one big commercial lot for a Wal-Mart neighborhood market and gas station.

We had the leaders of the neighborhood groups opposing the zoning change at the Midtown Coalition meeting a couple of weeks ago. They aren't NIMBYs: These homeowners would support commercial and multifamily development in accordance with existing zoning. The zoning change being requested is not in accord with the Comprehensive Plan for the parcels in question and involves a significant increase in intensity of use. They are not reassured by the fact that a PUD will be applied to the site, as they have an example on the NE corner of 41st and Harvard -- promises when the PUD was approved were then broken through amendments some time later.

In layman's terms, these neighbors bought homes that backed up to other homes. The adjoining lots were zoned and designated in the comprehensive plan for residential development. They had no reason to expect a supermarket loading dock across the back fence, and they paid some market-based premium on the basis of that expectation, which was grounded in existing use, zoning, and the Comprehensive Plan.

The key issue in this case and in the 71st and Harvard case, from the perspective of homeowner associations and neighborhood associations is the bypassing of the Comprehensive Plan.

The Comprehensive Plan is meant to give property owners and prospective property owners some degree of predictability. When considering the purchase of a piece of property, I should be able to look at the zoning map and the Comprehensive Plan and know what I am allowed to do with my land and what neighboring property owners are allowed to do, and the range of possible land use changes that may occur in the future.

Comprehensive Plan land use designations (such as "low-intensity residential" or "medium-intensity no specific use") are tied to zoning changes by a matrix which specifies which zoning categories (such as RS, CG, OL) are in conformance, are not in conformance, or which may be in conformance with the land use designation. By restricting the possibilities, property owners can invest with some degree of confidence that their investment will not be undermined either by an arbitrary zoning change or by an arbitrary refusal to grant a zoning change which is in accord with the Comprehensive Plan.

An owner's ability to make rational investment decisions is undermined by the frequent practice of changing the zoning without regard to the Comprehensive Plan, then amending the Comprehensive Plan after the fact to match the new zoning. Rezoning is no longer a matter of following the rules, but often who can hire the cleverest lawyer, or whether the applicant's plans will generate more sales tax and property tax revenue than the current land use.

I have heard it said that the TMAPC is right to ignore the Comprehensive Plan, since it hasn't been updated in ages, and there isn't any money to update it. The counter-argument is that there is no compelling reason for developers to push for a Comprehensive Plan update, because they can get any zoning they want without regard to the plan. (No land-use reforms will be considered by local politicians unless the development community is supportive, so great is its influence over local politics.) This reminds me of Oklahoma's old prohibition against liquor-by-the-drink, a law so often skirted that it was called liquor-by-the-wink. Only strict enforcement of the existing rules created pressure for reasonable reform.

The planning commission recommended approval by a vote of 5-4, and it will soon go before the City Council.