HomeMy WebLinkAboutPEC100050 Mitigation of Development Impacts 042511TO: Planning and Environmental Commission
FROM: Community Development Department
DATE: April 25, 2011
SUBJECT: A request for a recommendation to the Vail Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code, for a prescribed regulations amendment to create Chapter 12-26,
Exactions and Dedications, Vail Town Code, to allow for the creation of regulations and procedures for mitigation of development impacts, and setting forth details in regard thereto.
(PEC100050)
Applicant: Town of Vail
Planner: George Ruther/ Rachel Dimond
SUMMARY
The applicant, the Town of Vail, is requesting a work session on a text amendment to Title 12, Zoning Regulations, Vail Town Code, to establish Chapter 12-26, Exactions and Dedications.
The purpose of this new chapter is to provide the legal framework for administering the Town’s mitigation of development impacts requirements.
Based on the criteria and findings outlined in this memorandum and the testimony and evidence presented at the hearing, the Community Development Department recommends the Planning and
Environmental Commission forward a recommendation of approval to the Vail Town Council for this item. A draft copy of Ordinance No. 4, Series of 2011, is attached for review (Attachment
A).
II. DESCRIPTION OF REQUEST
The proposed amendments will establish a new chapter to Title 12, Zoning Regulations, entitled “Chapter 12-26, Exactions and Dedications.”
The purpose of this chapter is to:
Clarify existing regulations and policies on exactions and dedications;
Establish expectations regarding the need to mitigate development impacts at the beginning of the development review process;
Ensure a review process that is consistent, predictable and equitable;
Clarify the review criteria and findings necessary for requiring exactions and dedications;
Establish the procedure for determining the impacts of a development that must be mitigated, as quantified and applied to development projects through rational nexus studies;
Identify exactions and dedications that are necessary for achieving the development objectives of the Town;
Protect the health, safety and welfare and to ensure the orderly and viable growth of the community;
Provide a mechanism to ensure adequate public facilities, open space, recreational opportunities and other amenities and facilities conducive to a desirable community;
Promote safe and efficient pedestrian and vehicular traffic circulation and to lessen congestion in the streets; and
Conserve and maintain established community qualities and economic values.
The proposed Chapter 12-26 includes the following components:
Policy statements on the requirement of exactions or dedications;
Definitions of terms applicable to the implementation of the new chapter;
Outline of the legal authority for the requirement of dedications and exactions;
Criteria for reviewing exactions and dedications, whether they are fees, dedication of land, or provision of infrastructure or services;
Findings to be made by the reviewing authority (Planning and Environmental Commission or Town Council) when approving development applications; and
A process for accepting dedications.
The proposed language is located in Ordinance No. 4, Series of 2011 (see Attachment A).
III. BACKGROUND
On January 10, 2011, Staff held a work session with the Planning and Environmental on the proposed text amendments. The PEC directed Staff to come back with another work session to
discuss the background of this item.
On February 14, 2011, a second work session was held with the Planning and Environmental Commission to discuss the background of the proposed text amendments. The Commissioners recommended
the following changes:
1. Provide a definition of infrastructure, facilities and services.
2. Provide a list of the types of mitigation that may be required.
3. Remove references to “but for” in the criteria section.
Staff reviewed the requested amendments with the Town Attorney, who advised Staff not to include the amendments in the proposed ordinance. However, should the PEC wish to recommend
these amendments that are not reflected in the proposed regulations below, sample language is included with potential modifications in Section VIII of this memorandum.
The Commissioners also requested the following examples of projects and their requirement mitigation:
STRATA- Required Mitigation of Development Impacts
Public Art: $70,000
Transportation: $273,000
Employee Housing: 12,665 sq ft of EHUs
FOUR SEASONS- Required Mitigation of Development Impacts
Public Art: Public art piece with no monetary value required was built on site within view of right-of-way
Transportation: Roadway and streetscape improvements adjacent to site plus $200,000
Employee Housing: 56 employee beds (all built on site)
RITZ CARLTON- Required Mitigation of Development Impacts
Public Art: $100,000 of public art required on-site
Transportation: Roadway and streetscape improvements adjacent to site, all fees waived
Employee Housing: 10 employee beds
IV. DISCUSSION ITEMS
What are the impacts of development to local governments?
Impacts of development vary widely among projects. Generally, development may affect population concentration, traffic patterns, use of public facilities (e.g., schools, parks), need
for public services, utility use and infrastructure needs.
Why do local governments require the mitigation of development impacts?
Providing all infrastructure, facilities and services that become necessary due to new development may be cost prohibitive for a municipality, due to a variety of financial and political
factors.
Anticipating new development by providing infrastructure can be a misuse of limited resources.
Special Development Districts limit the ability to foresee future development as each project creates its own unique development standards.
State and federal funding for infrastructure and capital projects has been limited by budget cuts, placing more financial burden on local municipalities.
Existing residents may not want to share costs for new development, and typically oppose tax increase ballot initiatives to pay for infrastructure associated with such development.
What is the legal framework that allows local governments to require the mitigation of development impacts?
Communities may require dedications and impose exactions on the granting of land-use approvals, provided that there is an essential nexus between the exaction or dedication and a legitimate
local government interest, and provided that the dedication or exaction is roughly proportional, both in nature and extent, to the impact of the proposed use or development.
Case law and regulations that permit mitigation requirements include two historic land use law cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of
Tigard, 512 U.S. 374 (1994), as well as Colorado Revised Statutes § 29-20-203: Conditions on Land Use Approval, and related case law.
What types of mitigation may be required?
The following is a general list of exactions and dedications that may be required with the approval of a development project:
Cultural/ Social/ Tourism (public plazas, event venues, conference facilities, etc.)
Fire (impact fees to pay for increased services and equipment, etc.)
Housing (new employee housing, deed restrictions on existing properties, etc.)
Law enforcement (impact fees to offset increased services, etc.)
Parking (new spaces, parking structures, fee-in-lieu payments, etc.)
Public Art (on-site art installations, impact fees to pay for public programs, etc.)
Recreation/Parks (impact fees to offset increased services, land dedication, new park, public facilities, etc.)
Schools and child care (land dedication, fee-in-lieu payment, etc.)
Streets (new median, additional lanes, land dedication, streetscape improvements, etc.)
Transit (bus stop, private shuttle services, etc.)
Utilities (stormwater, electric, gas, communications, sanitation, recycling, etc.)
How do local governments require the mitigation of development impacts?
The process of mitigating the impacts of development varies among different communities with different development objectives and goals. On one end of the spectrum, communities may
pay for impacts of development through taxes and federal funding. On the other end, developers may pay for all incremental impacts to the community. The policy decision on who pays
for impacts can affect future levels of service for infrastructure, facilities and services. The chart below identifies the types of dedications and exactions that may be required by
municipalities near Vail:
Municipality
Parking
Housing
Streets
Transit
Fire
Parks/
Rec
Public Art
Police
Schools
Within Eagle County:
Eagle County
x
x
x
x
x
x
Vail
x
x
x
x
x
x
x
Avon
x
x
x
x
x
x
Minturn
x
x
x
x
Eagle
x
x
x
x
x
x
Within Summit County:
Summit County
x
x
x
x
x
x
x
x
Frisco
x
x
x
x
Dillon
x
x
x
x
x
Silverthorne
x
x
x
x
x
x
x
Breckenridge
x
x
x
Other Resorts:
Aspen
x
x
x
x
x
Steamboat Springs
x
x
x
x
x
Are dedications and exactions for the mitigation of development impacts a tax?
No. A tax is monies required for real and personal property or an act, event or occurrence that provides revenue in order to defray the general expenses of government as distinguished
from the expense of a specific function or service. Dedications and exactions are considered a type of fee, not a tax. Unlike a tax, a fee is not designed to raise revenue to defray
the general expenses of government, but rather is a charge imposed upon persons or property for the purpose of defraying the cost of a particular governmental service, in this case being
construction of infrastructure, facilities and services.
What is the existing Town fo Vail policy on mitigation of development impacts?
The existing policy is to require mitigation of development impacts when there is a rational nexus between cause and effect, as required by state law. Development in Vail is required
to pay for the incremental impacts on the community.
How does the Town of Vail regulate the mitigation of development impacts?
Yes, the Town of Vail requires varying levels of mitigation of development impacts, depending upon the zoning of the development site.
Currently, mitigation of development impacts is required in Public Accommodations 1, Public Accommodations 2, Lionshead Mixed Use 1, Lionshead Mixed Use 2, Ski Base/ Recreation 2 and
Special Development Districts.
Mitigation may include deed restricted employee housing, roadway improvements, pedestrian walkway improvements, streetscape improvements, stream tract/bank restoration, loading/delivery,
public art improvements, and similar improvements.
Employee housing may be required, in accordance with commercial linkage and inclusionary zoning standards, in the High Density Multiple-Family, Public Accommodation, Public Accommodation
2, Commercial Core 1, Commercial Core 2, Commercial Core 3, Commercial Service Center, Arterial Business, General Use, Heavy Service, Lionshead Mixed Use 1, Lionshead Mixed Use 2, Ski
Base/Recreation, Ski Base/Recreation 2, Parking and Special Development Districts.
Which development projects in Vail are required to mitigate their impacts?
Mitigation of development impacts may be required for “large scale redevelopment/development projects which produce substantial off site impacts.”
Employee housing is required for any project in the applicable zone districts that has a net increase in commercial or residential floor area.
Which development projects in Vail are not required to mitigate their impacts?
Single-family homes.
Projects in low density zone districts.
Projects that do not generate net new employees in commercial space.
Will the proposed amendments change the Town of Vail’s development policies?
No. The proposed regulations will not change existing policy.
Will the proposed amendments change the Town of Vail’s development review procedures?
Yes. The proposed regulations will change current procedural practice with the establishment of criteria and findings when determining that mitigation of development impacts is required.
The changes to review procedures will clarify expectations that development pays for some impacts to infrastructure, facilities and services and creates an equitable, predictable and
consistent process for determining an exaction or dedication. However, the outcome of requirements will remain the same.
Will the proposed amendments change the Town of Vail’s development impact standards?
No. Requirements for development to pay for impacts to infrastructure, facilities and services will remain the same. The following chart details how the proposed regulations would
affect mitigation of development impacts for a project in Vail, using Strata as an example:
Exactions and Dedications
Existing Regulations
Proposed Regulations
Public Art
$70,000
$70,000
Transit
$273,000
$273,000
Employee housing
12,665 sq ft of EHUs
12,665 sq ft of EHUs
How are development affected by development impact mitigation requirements?
According to “Development Fees and Employment,” a study conducted by the University of Oklahoma and Florida State University, clear expectations of exactions and dedications allow developers
to anticipate costs. The expectation of exactions and dedications has also been proven to expedite review of projects, as municipalities are less apprehensive to approve development
when its impacts are mitigated. While exactions and dedications increase the cost of development, they provide certainty that is shown to increase likelihood of the implementation of
projects.
How is the Town of Vail affected by development impact mitigation requirements?
The same study referenced above notes that exactions and dedications lead to increased jobs in a municipality due to new construction, new employment sectors and funding for schools,
parks, fire, and other services. Further, the mitigation of development impacts allows the Town of Vail to defer costs of improving infrastructure, facilities and services to the developer
instead of the taxpayer. The Town of Vail also charges a construction use tax that provides funding for capital projects. In 2011, the Town of Vail has over $3 million in maintenance
costs and $17 million in capital improvement needs. Funding sources include but are not limited to construction use tax (estimated $500K), TIF funding from Lionshead ($8.5M), and traffic
impacts fees ($390K balance). However, this does not include an extensive list of unfunded projects that were cut to balance the budget, including over $18 million in high priority
projects. The Town continues to pay for extensive capital improvements, with a small amount of funding coming from development.
V. APPLICABLE PLANNING DOCUMENTS
Title 12, Zoning Regulations, Vail Town Code
12-1-2: PURPOSE:
A. General: These regulations are enacted for the purpose of promoting the health, safety, morals, and general welfare of the town, and to promote the coordinated and harmonious development
of the town in a manner that will conserve and enhance its natural environment and its established character as a resort and residential community of high quality.
B. Specific: These regulations are intended to achieve the following more specific purposes:
To provide for adequate light, air, sanitation, drainage, and public facilities.
To secure safety from fire, panic, flood, avalanche, accumulation of snow, and other dangerous conditions.
To promote safe and efficient pedestrian and vehicular traffic circulation and to lessen congestion in the streets.
To promote adequate and appropriately located off street parking and loading facilities.
To conserve and maintain established community qualities and economic values.
To encourage a harmonious, convenient, workable relationship among land uses, consistent with municipal development objectives.
To prevent excessive population densities and overcrowding of the land with structures.
To safeguard and enhance the appearance of the town.
To conserve and protect wildlife, streams, woods, hillsides, and other desirable natural features.
To assure adequate open space, recreation opportunities, and other amenities and facilities conducive to desired living quarters.
To otherwise provide for the growth of an orderly and viable community.
Colorado Revised Statutes
29-20-203. Conditions on land-use approvals.
(1) In imposing conditions upon the granting of land-use approvals, no local government shall require an owner of private property to dedicate real property to the public, or pay money
or provide services to a public entity in an amount that is determined on an individual and discretionary basis, unless there is an essential nexus between the dedication or payment
and a legitimate local government interest, and the dedication or payment is roughly proportional both in nature and extent to the impact of the proposed use or development of such property.
This section shall not apply to any legislatively formulated assessment, fee, or charge that is imposed on a broad class of property owners by a local government.
(2) No local government shall impose any discretionary condition upon a land-use approval unless the condition is based upon duly adopted standards that are sufficiently specific to
ensure that the condition is imposed in a rational and consistent manner.
VI. CRITERIA AND FINDINGS
The Vail Town Code prescribes the process, criteria, and findings for reviewing a proposed prescribed regulations amendment. In reviewing an application of this type, the Planning and
Environmental Commission and Vail Town Council shall consider the following factors with respect to the requested text amendment:
The extent to which the text amendment furthers the general and specific purposes of the zoning regulations; and
Staff finds the proposed text amendments further the general purpose of the zoning regulations because by requiring mitigation of development impacts, the text amendment furthers the
“general welfare of the town” and promotes “the coordinated and harmonious development of the town… that will conserve and enhance…its established character as a resort and residential
community of high quality.”
Staff finds the proposed text amendments further the specific purposes of the zoning regulations by providing the catalyst that could fulfill a number of the specific purposes. This
includes potential for requiring mitigation in the form of road improvements, transit improvements, new public facilities, rehabilitation and/or preservation of natural areas and other
amenities, for example. Staff believes these examples of mitigation further the specific purposes of the zoning regulations, including providing public facilities, securing safety,
promoting “safe and efficient pedestrian and vehicular traffic circulation,” conservation of “wildlife, streams, woods, hillsides, and other desirable natural features,” assurance of
“adequate open space, recreation opportunities, and other amenities and facilities conducive to desired living quarters” and “to otherwise provide for the growth of an orderly and viable
community.”
The extent to which the text amendment would better implement and better achieve the applicable elements of the adopted goals, objectives, and policies outlined in the Vail comprehensive
plan and is compatible with the development objectives of the town; and
Staff finds the proposed text amendment is compatible with the development objective of the Town to be a “world class mountain resort community.” Within that objective lies a general
belief that the Town of Vail should have first rate infrastructure, services and facilities. Requiring development projects to mitigate the direct impacts to that infrastructure helps
to further this objective. Another development objective of the Town of Vail is to have sustainable fiscal responsibility. Staff finds that the proposed amendments further this goal
by placing the financial burden of providing infrastructure and services upgrades on the development projects that necessitate such improvements and associated costs.
Staff also finds that the proposed text amendment better implements the adopted goals, objectives, and policies outlined in the Vail Comprehensive Plan. Specifically, the mitigation
of development impacts furthers the policy objectives of the Lionshead Redevelopment Master Plan and the Vail Village Master Plan, which calls for improved vitality and amenities, improved
access and circulation, improved infrastructure and creative financing for enhanced private profits and public revenues. The amendments also further the implementation of Objective
1.3 of the Vail Village Master Plan, stating that the Town should “enhance new development and redevelopment through public improvements done by private developers working in cooperation
with the town.”
The amendments further the goals of the Vail Land Use Plan, most specifically that “Vail should continue to grow in a controlled environment, maintaining a balance between residential,
commercial and recreational uses to serve both the visitor and the permanent resident.”
Careful consideration is needed when determining and imposing dedications or exactions on land use applications. In the absence of careful and thoughtful consideration, unintended consequences
could negatively impact the otherwise
intended objectives of the regulation or the Town. For example, a dedication or exaction maybe properly determined and imposed yet be so financially onerous that the a proposed project
is no longer practical. In this case, the Town may need to evaluate the need for the dedication or exaction against other public benefits derived from the project. This is, and will
be, an ongoing challenge and consideration the Town needs to carefully and thoughtfully consider.
The extent to which the text amendment demonstrates how conditions have substantially changed since the adoption of the subject regulation and how the existing regulation is no longer
appropriate or is inapplicable; and
Staff finds that the text amendments show a change in conditions, as the Town Attorney has advised Staff that the proposed language is necessary to provide legal framework for mitigation
of development impacts. The existing process and regulations may not be adequate enough to require mitigation or to provide the legal justification for such mitigation. Should the
Town be faced with a lawsuit, the proposed text amendments would allow for a stronger legal framework to justify exactions and dedications.
Additionally, staff finds that the financial sustainability and viability of the Town is critical to the continued success of the community. The proposed amendments place the financial
burden of providing infrastructure and services upgrades on the development projects that necessitate such improvements and associated costs. They do this in a way that the dedication
or exaction required is roughly proportional both in nature and extent to the impact of the proposed use or development of such property on the community.
The extent to which the text amendment provides a harmonious, convenient, workable relationship among land use regulations consistent with municipal development objectives; and
As previously stated, the mission statement of the Town of Vail is to be a “world class mountain resort community.” In order to achieve that mission, the Town needs to have infrastructure,
facilities and services that match the level of development that is and will occur in Vail. Further, over the course of the recent redevelopment in Vail, the Town has come to fully
understand that redevelopment needs to pay for more services in order to maintain the high levels of service that are a part of the Town’s municipal development objectives. In the
absence of a predicable and equitable exaction and dedication requirement, it can be reasonably assumed that the Town shall bear the financial burdens resulting from new development
thus jeopardizing the likelihood that the Town can continue to grow in a viable, orderly, harmonious and convenient manner.
(5) Such other factors and criteria the planning and environmental commission and/or council deem applicable to the proposed text amendment.
VII. STAFF RECOMMENDATION
The Community Development Department recommends the Planning and Environmental Commission forwards a recommendation of approval to the Vail Town Council, pursuant to Section 12-3-7,
Amendment, Vail Town Code, for a prescribed regulations amendment to create Chapter 12-26, Exactions and Dedications, Vail Town Code, to allow for the creation of regulations and procedures
for mitigation of development impacts, and setting forth details in regard thereto.
Should the Planning and Environmental Commission choose to forward a recommendation of approval of this request, the Community Development Department recommends the Commission pass the
following motion:
“The Planning and Environmental Commission forwards a recommendation of approval to the Vail Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code, for a prescribed regulations
amendment to create Chapter 12-26, Exactions and Dedications, Vail Town Code, to allow for the creation of regulations and procedures for mitigation of development impacts, and setting
forth details in regard thereto.”
Should the Planning and Environmental Commission choose to forward a recommendation of approval with modifications to the Vail Town Council for the proposed text amendment, the Community
Development Department recommends the Commission include the following modifications in the motion:
“The Planning and Environmental Commission recommends the following modifications to the prescribed regulations amendments:
Add a definition for infrastructure as follows: Facilities and services needed to sustain industry, residential, commercial and all other land use activities, including but not limited
to: parking (new spaces, parking structures, fee-in-lieu payments, etc.); housing (new employee housing, deed restrictions on existing properties, etc.); streets (new median, additional
lanes, land dedication, streetscape improvements, etc.); transit (bus stop, private shuttle services, etc.); fire (impact fees to pay for increased services and equipment, etc.); recreation/parks
(impact fees to offset increased services, land dedication, new park, public facilities, etc.); public art (on-site art installations, impact fees to pay for public programs, etc.);
police (impact fees to offset increased services, etc.); schools (land dedication, fee-in-lieu payment, etc.) and any other improvement/dedication/fee required by the reviewing authority
based on mitigation of development impacts and authorized by law.
Reconfigure the finding in 12-26-4A-4 to read as follows: “If the proposed use or development would not occur, the Town would not be considering either the provision or expansion of
the service or infrastructure facility in question.”
Should the Planning and Environmental Commission choose to forward a recommendation of approval to the Vail Town Council for the proposed text amendment, the Community Development Department
recommends the Commission makes the following findings:
“Based upon the review of the criteria outlined in Section V of Staff’s April 25, 2011 memorandum and the evidence and testimony presented, the Planning and Environmental Commission
finds:
That the amendment is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail Comprehensive Plan and is compatible with the development
objectives of the Town; and
That the amendment furthers the general and specific purposes of the Zoning Regulations outlined in Section 12-1-2, Purpose, and 12-13-1 Purpose, Vail Town Code; and
That the amendment promotes the health, safety, morals, and general welfare of the Town and promotes the coordinated and harmonious development of the Town in a manner that conserves
and enhances its natural environment and its established character as a resort and residential community of the highest quality.”
VIII. ATTACHMENTS
A. Draft Ordinance No. 4, Series of 2011