Can a developer's unfinished work be used against new rezoning proposal

Visitor Question: I am a resident of a multi-phase development begun in 2017. This sits on a subdivision of large private land. Huge areas of mature trees have already been cleared, affecting wildlife.

My question is whether the present condition of unfinished work, and failed undertakings of the Developer, can be an argument against THIS Developer getting approval of its re-zoning application to add another phase to its already full (unfinished) plate.

Also, while the market calls for a need for more housing, whether the market is buying (or not buying) speaks volumes. New manufactured homes are sitting vacant for months and even years in Phase 1 and the start of Phase 2. Yet the Developer is looking at adding a Phase 7.

I feel the community should not bank on this Developer (with its failing track record) whereby the loss overall is to the community: clearing more of our green space being used for hiking, biking, and wildlife in order to create more unfinished undeveloped area.

Any thoughts?

Editors Respond: Yes, we think you and your neighbors should definitely use this developer's failure to complete previous phases as an argument against further approvals at this time. You can say that when your local government gives this particular developer an approval, it amounts to shutting out other potential developers that might do a much better job of keeping promises and being able to perform the work.

Having said that we think this is an effective argument for you the residents to make, there is no guarantee that your local government will feel it has the option of turning down phase 7 approval if the plans meet certain criteria that are set out in your zoning ordinance, subdivision ordinance, or in previous ordinances that were passed to allow the development of the earlier phases.

It all depends on exactly what your zoning ordinance says about the process for approving phased development. If a blanket approval was issued prior to the start of any development, it is possible that applying for subsequent phases is viewed as strictly an administrative task, and that as long as the new phase does not make any changes from what was approved originally, the city has no right to deny the development approval.

We certainly hope your city has had more foresight about what could go wrong than that, but we have definitely seen ordinances that follow the assumption that after phase 1, other phases will be approved upon submission of more exact drawings and so forth.

As we mentioned ever so briefly above, the subdivision ordinance (if separate from the zoning ordinance) also could come into play here. Sometimes an entire large tract of land is rezoned at once, allowing a big parcel to be developed in the intended manner. Then the phases come as detailed subdivision plats, which often are subject to considerably less subjective review than the original rezoning. In fact, some city attorneys in some states will say that a city does not have any right to deny a subdivision approval if plats and accompanying plans and data are submitted properly.

So if you have not done so, please check right away with your city's (or county's) zoning staff to make sure you understand the exact procedure that will be undertaken for phase 7. Ask the staff member directly whether they think the city has a right to turn down the approval. That will tell you a lot.

If you find out that the planning staff believe the city (or county) has the discretion to approve or not approve phase 7, make sure that the staff person understands all of the little unfinished work that you are noticing. Sometimes one department or division of the city has not been communicating with another department about unfinished work. In your example, the public works department may know what has not been completed, but the planning staff may not be aware of the same level of detail about the developer's poor performance.

Be sure to be talking with your elected representative too. That would be a city or county councilperson if they are elected by wards or precincts, and if everyone serves "at large" and elected by the entire city, you might want to speak with the mayor.

Photos may help you tell the story about trees cut down, wildlife displaced, and so forth. Take some to the public hearing.

In sum, we hope you will find out, if you haven't already, that your council representatives have the option to say no, and that in fact they will do it. Remind them that if they feel they need to soften the blow, they can always say no, not at this time, not until the available lots have been absorbed and all of the promised public infrastructure been properly installed.

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