[Durham INC] A fundamental change to Durham's development process

[Will Wilson]

Fellow Durhamites,

The Planning Department proposed a text amendment to Durham's Unified 
Development Ordinance that would allow chosen developers to sidestep the 
rules that the rest of us must adhere to. Part of the sidestepping means 
that the rest of us would have no input into what gets built where.

With permission, I'm passing on comments written by long-time INC 
member, Planning Commission member, and development legal expert Tom 
Miller regarding a UDO text amendment that Durham's Planning Department. 
The Planning Commission rejected the text amendment 10 to 3. It now goes 
to elected officials.

There are two parts to his comments: first is his preface that explains 
the situation, and second is the text of his letter to the City Council 
and the Board of County Commissioners.

If you feel moved, please make your opinion known.

council at durhamnc.gov
Commissioners at dconc.gov

Thanks,
Will Wilson
President, INC

Tom's preface to his comments:
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The Planning Department initiated the text amendment to the UDO to 
expressly allow development agreements.   A development agreement is a 
statutory device that allows a local government and a developer to enter 
into a formal contract to write special zoning rules pertaining only to 
the developer's property.  The rules can be more strict than the regular 
zoning rules (unlikely) or less strict than the regular zoning rules 
(more likely).  The agreement can establish a slight change in the 
zoning rules for the developer's property or the agreement can throw the 
regular zoning rules out altogether and create an entirely novel and 
unique arrangement for the developer's property.  A development 
agreement may be about more than just zoning. It can include promises 
about improvements, city services, etc. What's more, the agreement may 
provide that the special arrangement for the developer will last for a 
certain period time during which the local government would have no 
authority to alter or change the zoning.  That period of time could be 
short or long - years even.

Durham's UDO has always declared that there will be no development 
agreements in Durham.  Now the city administration wishes to change the 
UDO to allow them.  The proposal the city has come up with would treat 
at least some development agreements - those that tamper with zoning 
rules - like rezoning cases.  Such agreements would be heard by the 
Planning Commission and the City Council )or the Board of County 
Commissioners if the land is in the county's jurisdiction).

When the UDO text change was first presented to the Planning Commission, 
the commission members had questions and wanted to delay its 
consideration to give the public more time to weigh in.  When the 
proposal to delay was floated, the city staff disclosed that the 
proposal to allow development agreements was tied to a rezoning on 
Farrington Road that had not yet hit the commission's radar and that a 
significant delay of the development agreements would spoil the 
Farrington Road rezoning which the city was obviously invested in in 
some way.  The Planning Commission delayed the development agreements 
just two weeks to allow staff time to address some of the commission 
members' comments.  When the item came before the commission members 
again on August 11, the commission voted 10-3 against the proposal. It 
is now headed to the City Council and the BOCC for a final decision.

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Now, Tom's letter to City Council and BOCC:
--------------------

Concerning case TC2000003, Development Agreements:

The City Council and the Board of Commissioners should reject this text 
amendment.

The statutory authority for local governments to enter into development 
agreements was in place when Durham adopted its UDO.  In the UDO Durham 
declared that such agreements would not be allowed.  Not here.  This was 
a deliberate decision based in ideas of simple fairness and openness in 
government.  The UDO is one set of rules for everybody.  Durham does not 
do business in back rooms or behind closed doors.  The declaration 
against development agreements is something in the UDO that we should 
all be proud of.  We have got along without special favors to the 
already specially favored for nearly fifteen years.  We do not need to 
change the rules now.

Development Agreements - allowing special deals and special treatment 
for favored developers - is anti-democratic.  How can we promote such a 
thing when we are at the same time struggling to make the whole 
development review and approval process more transparent, accessible, 
and equitable? Our UDO applies equally to everybody.  The UDO belongs to 
everybody.  The developer may own his land but zoning is public 
property.  The very idea of development agreements runs against this 
idea - a separate deal between the government and a developer that takes 
the developer's property out of the general regulatory scheme and 
provides the developer with an exclusive set of rules which he will own 
for a set period of time.  Zoning the developer can rely on.  What about 
zoning everyone else can rely on?

The legislative trend over the last few years has definitely been one of 
opening doors for developer interests and closing them for everyone 
else. First the General Assembly eliminated the protest petition right 
for neighbors of proposed rezonings.  Then just last year they took away 
the right of average citizens to ask for rezonings.  That right now 
belongs to land owners.  Now Durham, the "for all" city, wants to 
activate the development agreement method of land use regulation.  More 
for the developer, less for everyone else.  Public input has been 
reduced from real due process to a box to be checked at the end of the 
process.  With development agreements, due process will occur only after 
the city and county elected officials, staff, and the developer have 
hammered out all the particulars of their deal.  Potential stakeholders 
in the community will not be consulted.  They won't even know what's 
going on.  That's the point, isn't it?  By the time case is rolled out 
and the notices are sent, it  will be too late for the public to back up 
the momentum of the agreement or alter its course.  Review by the 
Planning Commission and even the hearing before city or county officials 
will be window dressing.  The case will have been agreed to and decided 
before it even started.

It's already happened in getting this proposal this far.  The only 
reason this text amendment is being considered is that it is necessary 
to bring about a backroom deal between the city administration and a 
developer near Farrington Road.  Planning Commission members only found 
this out when staff objected to a possible delay to study the item more. 
  "Oh no!  You can't delay this.  A delay will mess up a deal we have 
with a developer of a project on Farrington Road!"   We have not yet 
been briefed on the Farrington Road project.  It is obvious from what we 
have been told, however, that city officials have committed themselves 
to the project before opening it up to public scrutiny.  We were told 
again at our meeting on August 11 that if we delayed our consideration 
of the development agreement ordinance that it would "sink" the 
Farrington Road project.  I wish I could make people realize that this 
behind-the-scenes deal making - even to the point of agreeing to change 
the zoning code to formalize the deal  - is contrary to sincere public 
engagement and injurious to public trust.  There can be no equity in 
city planning if cases are decided before the public knows they have 
started and public involvement is reduced to a box to be checked.

We must vote this idea down.  Staff says this is just another tool. 
Imagine calling special treatment just another tool!  Whatever we might 
get from this tool isn't worth having - not at this cost.