Land Use Entitlements For Mixed-Use Projects, Master Planned Communities and Infill Development Navigating the Approval Process for Permitted Uses, Site Plans, Sustainability Policies, Zoning and Parking Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. WEDNESDAY, NOVEMBER 5, 2014 Presenting a live 90-minute webinar with interactive Q&A Michael Levin, Principal, Development Management Associates, Chicago Ken Kecskes, Partner, Fox Rothschild, San Francisco Donna J. Pugh, Partner, Foley & Lardner, Chicago
Transcript
Land Use Entitlements For Mixed-Use Projects,
Master Planned Communities
and Infill Development Navigating the Approval Process for Permitted Uses, Site Plans,
• Orientation single family home rooftops to facilitate use of
solar energy systems.
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Site Development Measures:
Parking
• Reduce reliance on automobiles that use
fossil fuels
• Electric car charging stations
• Bicycle parking (equal to 5% of total parking
capacity in California), changing rooms and
showers
• Designated parking for fuel efficient vehicles
(up to 8% of parking stalls in California) and
labeled “CLEAN AIR/VANPOOL/EV” parking
• Transit-oriented projects discourage
automobile ownership by limiting parking
ratios to 1:1
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Water Efficiency
Water issues affect the negotiation of:
• Environmental documents and mitigation measures
• Land use entitlements, such as a local government’s general plan, specific plan, planned unit development permit or zoning, or other development rights
• Development Agreements, describing the vested rights and the economics of the public-private deal
• Water Service and financing agreements with regional water districts
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Trends in Water Efficiency
Future water use is going to be significantly less in new residential master planned communities and mixed use projects as water efficient fixtures are installed in response to legal requirements and compliance with voluntary standards
Automatic irrigation system controllers for landscaping provided by the builder and installed at the time of final inspection must be weather or soil moisture based controllers
2010 Model Landscaping Ordinance now requires compliance with an outdoor water budget based on location and lot size
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Impacts on water related
infrastructure
• Master planning of water and wastewater infrastructure is still
using outdated design criteria in local government codes and
public works policies.
• Smart developers of large scale projects will seek changes to
design criteria based on today’s water use and wastewater
generation -- saving potentially $1,000,000s -- as
infrastructure is “downsized” and impact fees are rescaled
• Set performance metrics tied to approved water demand
• Promote flexibility on how to achieve goals over the life of the
MPC (such as an initial menu of measures with ability to add
new measures approved by local gov’t)
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Impact of water efficiency in
entitlement negotiations
• Water saving measures can help you make the case for increased residential or commercial density in your project, because you are using less water per dwelling unit, per square foot in commercial uses or per acre in common area landscape.
• Developers that incorporate water saving measures into their MPCs may increase the overall value of a project when compared with projects that do not adopt such measures.
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Impact of water efficiency in
Entitlement Negotiations
• Addressing water saving measures in the environmental documents: CEQA EIR, NEPA EIS, etc.
• Know today’s baseline use
• Current water use on greenfield sites (i.e., farming)
• Quantify water use in redevelopment sites (check with retail utilities, government, poll current users).
• Know the water demand factors and the anticipated water use identified in prior environmental documents.
• Did those prior water demand numbers take into account the implementation of water saving measures? Important when analyzing the cumulative effects of your project and other projects.
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Impact of Water Efficiency in
Entitlement Negotiations
• Know the current water demand factors used by a local government and question the validity of their assumptions with data on your water saving measures
• Be prepared to explain why your water demand factors are more reliable by referencing technical data, published papers or journals.
• Create a record of substantial evidence for a change in standards.
• Arrive at a number for the water demands of your project
• Break up into indoor and outdoor components
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Impact of Water Efficiency in
Entitlement Negotiations
• Negotiate your mitigation measures based on the agreed upon water demand factors and project water use.
• Negotiate increased density or building intensity based upon water savings measures
• Reduce impact fees required by public agencies, because your project requires less water
• Government can be guilty of a “taking” if impact fees do not have a “nexus” to the proposed project and the size of the impact fee is not “roughly proportional” to the impact of development. (Koontz v. St. Johns River Management District)
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Material Conservation
• Builders must recycle and/or salvage for reuse nonhazardous construction and demolition debris (50 percent in California, more in other jurisdictions), or meet a local construction and demolition waste management ordinance, whichever is more stringent.
• Construction waste management plan must be prepared, with all trades signing off.
• Local ordinances or mitigation measures in project approvals require new construction to provide “three can” waste management:
recycling, composting, and landfill.
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Indoor Air Quality
• Construction materials must not exceed low VOC (volatile organic chemical) thresholds
• States set goals for reducing residential energy use from business as usual (BAU) baseline (California, residential by 20% and commercial by 15%).
• Installation of high efficiency lighting fixtures (especially LED fixtures), vacancy sensors in most spaces
• Commercial buildings must have post-construction, on-going commissioning program
• Energy use reporting by commercial tenants to landlords, shared with prospective purchasers, tenants, lenders
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Climate Change and GHG
• Land use policy is increasingly taking into account carbon emissions into the approval process.
– A project must quantify carbon emissions from various sources during and after construction and disclose those emissions in environmental documents (in California EIR)
– Environmental policy now emphasizing auto trip generation and vehicle miles travelled, de-emphasizing congestion management and LOS standards
– Mitigation measures may be adopted to reduce carbon emissions
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Climate Change and GHG
• Transit priority projects that help a
jurisdiction meet regional GHG emission
targets are given priority for federal
transportation dollars (California’s SB 375)
• What’s next? “Resilient design” as a
response to climate change concerns
– “Net zero” water or energy projects
– Design buildings to handle severe
storms, flooding, wildfire
– Anticipate forecasted changes in sea
level rise in placement of buildings
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Implementation Issues
Smaller cities and towns may not have the staff, or the expertise, to verify installation of numerous sustainable features
Delays at plan check stage, as building permit level plans take longer to review or must be sent out to experts
Potential for delays in issuance of certificates of occupancy, pending confirmation of compliance
Inspection fees may increase to hire qualified staff
Allow verification by third party inspectors who submit compliance certificates. Marketplace can set fair and reasonable inspection price. Local government can vet the reputation and procedures of inspectors or maintain a list of approved providers.
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Post-Construction Implementation
Issues
• Negotiate post-sale enforcement mechanisms – Who will verify that efficiency measures are still
installed upon resale of dwelling units
– City inspector, third party verification, buyer/seller reporting, or HOA enforcement
• Negotiate scope of “commissioning” obligations – Frequency and type of reporting to government
officials on effectiveness of water saving measures in HOA common areas and in commercial office, industrial, institutional uses
• Determine penalties for noncompliance after build out and who imposes penalties – building department, HOA, or someone else?
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Land Use Entitlements for Mixed-Use
Projects, Master Planned Communities and
Infill Development- Rezoning and Zoning Variances
Donna J. Pugh, Partner, Foley & Lardner LLP, Chicago
the right to build its project free from legislation
enacted after project approval that might
increase project costs or limit the scope of the
development
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Basic vested rights rules
Majority Rule - “Permit plus construction”
• A landowner has a vested right to develop when, relying in good faith, the landowner has a made substantial expenditures in reliance on a permit approval prior to a change in zoning laws.
• More than 30 states follow this approach
Minority Rule – “Permit approval for a limited time”
• A landowner has a vested right to develop for a period of years, as specified by statute, upon receiving permit approval of the project.
• The balance of the states follow this approach, except a handful of states says zoning laws are frozen for a particular project as of the date filing of an application
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Common Vesting Tools
Avoid the application of majority or minority rules, if
possible in your jurisdiction, by use of the vesting
tools:
• Vesting subdivision maps
– A landowner with an approved vesting subdivision
map gains the vested right to proceed with
development (including the right to building permits)
under the ordinances, standards and policies in effect
when project application is accepted as complete
– Limited duration provided by statute
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Common Vesting Tools
• Development Agreement
– A contract between a local government and a landowner whereby, in exchange for public benefits, the landowner receives a vested right to develop the project for an agreed upon number of years
– Typically better for the longer period needed to build out large scale master planned communities and mixed use projects
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Watch Your Permit Deadlines
Local governments were very gracious during the last economic downturn, extending permit deadlines by legislation or through “over the counter” extensions.
Local governments are becoming less flexible, so review permits and understand deadlines for commencement of construction (or potentially suffer a loss of the right to build the permitted project) under:
• Development permits
• Building Permits
• Subdivision Maps
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Impact Fees and Exactions
• What are impact fees and exactions?
– Payment of fees or dedication of land from a
developer to the government in exchange for a permit
to develop land.
– Examples: traffic mitigation fees, school impact fees,
park fees, affordable housing fees, public art fees
