The World (of Zoning) According to Jon

Surprisingly, Jon ain’t a big ol’ hypocrite on zoning

I write a bit about development projects that include zoning changes of some sort.  This is mostly because those that don’t require a zoning change just file their plans and they’re off.  There is no public discussion, except after, when we see the usual awfulness that we’re all left to look at.

Some, even CandysDirt.com’s editor, question me on what are seen as wildly inconsistent opinions with regard to zoning and resulting density.  I thought detailing my thought process would help others in how they think about zoning issues.

Every property is zoned for something.  Anything from Agriculture (AG) all the way up to the tallest skyscraper.  Land within a Planned Development District (PD) also has rules for what can be built on the land.  Land use within a PD may not be defined in the same language or categories as the standard zoning tables, but the documents that created them detail height, lot coverage, uses, etc.

That’s where I begin.

The underlying land rights (because that’s what zoning ultimately is) guide my opinion on redevelopment.  They do this because they’re the maximum. Zoning changes are almost always about exceeding those maximums.  It’s the rare zoning case that wants less (because less doesn’t often require a zoning case). You get charged extra for a second order of French fries, but you’re not if you don’t finish the first.

All things being equal, zoning/land rights are a huge determination of a land’s value.  Think of it as “opportunity.” Two side-by-side lots are worth vastly different sums if one is zoned for one single-family home whereas the neighboring plot is zoned for a high-rise.  In this case, the high-rise zoned plot may be worth 8-10 times what the single-family plot is (or more).  That’s a lot of money.

This is why you don’t see cities often downzoning existing land rights.  It would equate to an eminent domain seizure where the city would have to compensate land owners for the reduction in value. The larger the area, the larger the bill for the city.  For example, were that fictional single-family plot worth $1 million and the city takes away the high-rise rights from the neighboring plot, the city owes that land owner $7-9 million in lost value.  Were the city not willing to pay that, the landowner would sue and likely win.  The city would then have to pay the money anyway but would also be on the hook for the legal fees too.

Texas is big on land rights not being messed with (diminished).

Toll Brothers Oak Lawn Project

I’ve written a lot on this project. I’ve written a lot that at least one city council member thinks is mean.  I’m “mean” to drive home a point that’s been driven home repeatedly.  The area surrounding this project has been zoned MF-3 (unlimited height) for 50 years. Toll Brothers is hardly the first to utilize its capabilities. Basically all buildings over 36 feet between Oak Lawn Avenue and Turtle Creek have utilized all or a portion of their height rights.

A short list includes The Mansion on Turtle Creek, The Mansion Residences, The Plaza condos, the Heritage Auctions building, Renaissance Condos, The Mayfair condos and all the new ticky-tacky apartments on Cedar Springs between Oak Lawn and Turtle Creek. That’s not to mention the cancelled Limited Edition and its neighboring apartment tower, the stalled Turtle Creek Gardens project, Teixeira Duarte’s two coming high-rises, Hillwood’s 3001 Turtle Creek project, Republic Tower project and the recently-announced high-rise to be built on the back of the Belmont Financial building at Turtle Creek and Dickason.

Like it or not, these projects are simply tapping into the land use rights granted a half-century ago. If you oppose this project and live above the third floor, your home used those same rights. If you want to live in a high-rise with no tall neighbors, that’s a tall order (yes, I said it) because the rights to build tall are almost always clustered together.

My support for Toll Brothers boils down to my support for their use of their land rights. Beyond that, I feel the negotiated plan is better than a by-right plan.  Some want to call that bluff, I don’t.  And even if the bluff is called, there will be a high-rise on that plot.

Finally, I don’t think it’s been pointed out, but the quality and price-points of Toll Brothers are a blessing.  Yes, a blessing.  If you look at the flypaper stucco boxes being built by right on Cedar Springs, you do not see properties that will age gracefully.  Think about it, one of the main boundaries of this neighborhood is being filled with properties that will, in time, drag down the area. And when they’re torn down in 20-30 years, they will all be high-rises. Guaranteed. Toll Brothers’ putting an expensive stake in the ground may attract better quality instead of a continued descent into even more cheaply constructed buildings.

Pink Wall’s PD-15

Across town in the poor section of Preston Hollow at Northwest Highway and Preston Road, there’s the Pink Wall.  What was once a tony downsizer’s paradise has become decidedly less tony.  Within the area bounded by The Athena and Preston Tower high-rises lies PD-15.  Begun in 1947, PD-15 is old and by today’s standards, poorly written. Instead of using the terminology of newer zoning, PD-15 gives a maximum number of units within its boundaries with little or no detail on height, setbacks, etc..  As written, it essentially stated that what is currently constructed in the PD is all that can be constructed there. (A change in the 1970s wound up adding 60-ish unbuilt surplus units to the area)

Today, due to several factors, the PD will likely be reopened to accommodate increased development. There is a task force in place to make those recommendations.

Unlike the Toll Brothers area, PD-15 properties essentially have no development rights beyond what they have today. Those 60-ish surplus units equate to about 10 additional units per acre of low-rise construction in the PD – not enough to entice development.

In this case, the buildings that want significantly more rights are essentially sitting on Santa’s lap wanting presents.  It’s up to the neighborhood to decide how much and where to grant those rights.

And so again, my opinion rests on the underlying rights, which in this case are nil. The outcome rests with the agreement hammered out in the cage match of negotiations.

Proposed Lincoln Katy Trail project

Carlisle and Hall Streets

This area is zoned MF-2, which among other criteria, gives a 36-foot height limit and a minimum size of a residential unit (one-bedrooms are required to be at least 1,000 square feet). There are two projects on this corner in various stages of fruition. One calls for a pair of high-rises while the other is just one more six-story stucco box with as many smaller apartments crammed in as possible.

The magnitude of the ask from the developers is enormous. From 36 feet of allowed height to 79 feet and over 200 feet is outsized.

In these cases, I side with the neighboring low-rise residents because the base zoning is so much less than the ask.  Were a developer to come in and ask for four stories instead of three, that’s one thing (and it would still be double what’s already there now).

Underlying Zoning

There you have it.  You will see me take opinions that back-up the underlying zoning.  I will almost always support landowners exercising their rights, if for no other reason than the removal of those rights is cost prohibitive. When an upzone is asked for, I will weigh the amount of the developers’ ask against the zoning. I’ll weave that into how I feel it benefits or hurts an area.

Oh, and extra points for beauty and quality. I’ll stretch to get a prettier building.  I’ll stretch for buildings with longevity.

 

Remember:  High-rises, HOAs and renovation are my beat. But I also appreciate modern and historical architecture balanced against the YIMBY movement.  If you’re interested in hosting a Candysdirt.com Staff Meeting event, I’m your guy. In 2016 and 2017, the National Association of Real Estate Editors has recognized my writing with two Bronze (2016, 2017) and two Silver (2016, 2017) awards.  Have a story to tell or a marriage proposal to make?  Shoot me an email sharewithjon@candysdirt.com.

10 Comment

  • While I strongly oppose downzonings, they aren’t takings requiring just compensation so long as they don’t result in the elimination of all economically viable use of the property.

    • mm

      The case law I’ve read would disagree.

      • What case law is that?

        I just finished a land use law class last semester, so that fact is pretty fresh in my mind.

        Here is a brief overview of the case law: http://landuselaw.wustl.edu/articles/brief_hx_taking.htm

        Specifically the second (still standing) prong of Agins v Tiburon where the determination of a takings claim is whether the regulation “denie[s] an owner economically viable use of land.”

        • (1) City of San Antonio v. El Dorado Amusement Company seems pretty much on point in
          deeming downzoning with substantial economic impacts to be a regulatory taking. (2) In Sheffield v. Glenn Heights, the Texas Supreme Court specifically rejected your contention that the first prong Agins standard had been obviated in Texas. (3) Patel v. Texas Department of Licensing set down probably the broadest substantive due process standard in the country for overturning oppressive governmental economic regulation. (4) There appears to be a standard written right into the termination section of the Florida condominium act that if applied in Texas consistent with the case law discussed above would have obviated any attempt to downzone the Toll seller’s lot. In sum, your legal analysis appears to be on about the same level as your ignorant lies about General Lee.

          • (1) If you had read the decision, you would have seen that the takings decision in that case was based on the fact that they took away the alcohol permit from a property that had always had one to that point. This had a severe negative impact on operating profits and was judged to be “unreasonable interference” due to “historical uses [being] critically important when determining the reasonable investment-backed expectations of the landowner.” That’s a very different situation from a residential downzoning.

            (2) Of course a case from 2001 would operate under the assumption that a regulation had to substantially advance legitimate state interests, because that provision was not obviated until 2005’s Lingle v Chevron…

            (3) This has nothing to do with zoning. Perhaps the reasoning could be applied to zoning, but that would definitely need another case (unless you have some examples of lower courts applying it to zoning?).

            (4) We are not in Florida.

            To be clear, it is my *personal* opinion that most zoning is a taking and the police power justification is bulls*** (except for dealing with heavy industry). Unfortunately, SCOTUS does not agree, and that’s the world we live in.

          • “In sum, your legal analysis appears to be on about the same level as your ignorant lies about General Lee.”

            lol what

          • (1) The City of San Antonio v. El Dorado fact situation resulted from a rezoning of the property. (2) Sheffield was a 2004 decision and contemplated Lingle. The Texas constitution has its own takings clause subject to interpretation by Texas courts. (3) The Texas Supreme Court setting a new substantive due process standard has everything to do with zoning. (4) The Toll seller’s situation would have presented a fact situation that Florida appears to have decided on by statute. As long as the Texas cases allow for the consideration of the fact situation by a court, the Florida statute would be relevant precedent.

  • To paraphrase, PD-193 is old and by today’s standards, poorly written. So why start with an outdated zoning plan (for what is currently zoned there) as the basis for determining what could be built there?
    “I will weigh the amount of the developers’ ask against the (current) zoning.” That’s a recipe for getting stuck in the past.

    • mm

      Just because murder has been on the books for a while doesn’t mean it’s not still illegal. Whatever you may think of PD-193, it still legally governs the area. Of course what I said was PD-15 was old and poorly written. In fact, it’s 3 pages long. Trust me, there’s a lot more detail in PD-193.
      .
      It’s funny that city council calls the MF-3 zoning around Toll Brothers a “mistake”. But has any city council in the past 50 years tried to undo the “mistake” when other taller buildings utilized those rights?

      • Legal only means it’s lawful; legal doesn’t mean it’s right.

        PD-193 is antiquated. All I know is MF-2 doesn’t belong in Uptown.