Playing the development game:  
A brief overview of how and why new developments almost always get the green light in Flagstaff.
Norm Wallen - Tea Party Advisor

Most people seem to be poorly informed as to how the development game is actually played. This is, I think, partly because there are those who prefer it this way and partly because it's not very exciting, at least until the later innings. Too bad because everyone lives with the outcomes, for better or worse.

The first step for a developer is to own, lease or option a piece of land. We tend to think of it being already owned but more commonly it is optioned, which is one reason developers are so impatient; options run out and money is lost. Although the public never knows the details, it is safe to assume that the eventual purchase as well as the sale price are highly dependent on the zoning. This, in turn, often depends on getting an upzoning on the property.

The official process begins when the developer submits a proposal to the city. This is reviewed by staff, for compliance with ordinances and other probable impacts. Under Arizona law, staff is not required to take into consideration a development's impact on schools. Furthermore, some would argue that staff is not required to consider the issue of water availability. It is not commonly known that most of this evaluation of impacts is done by the developer's own consultants (architect, engineer traffic person, fire-safety person, etc.) at his expense, subject to review by city staff. There are some well known cases where these professionals have been caught in serious errors - by citizens as well as staff.

This review is followed by an "informal" meeting of the Development Review Board, at which the developer and his team hear and react to the staff evaluation. The public is allowed to attend but is not allowed to comment.

Next come negotiations, sometimes including another informal DRB meeting, followed eventually by a "formal" DRB meeting which, unless the sky falls, results in approval, usually with a series of requirements or "conditions." That's it unless a re-zoning or conditional use permit, a relatively minor departure from existing zoning, is needed. If either of these are required, it's on to the Planning and Zoning Commission, a citizen board appointed by the City Council which recommends to the Council on re-zonings and makes the decision on conditional use permits, subject to approval by the Council.

It's important to remember that the public gets no official opportunity to comment unless the proposal goes to Planning and Zoning and the public is typically unaware of developments such as Harkins Theatres, Hampton Inn and Home Depot until ground is broken. The only avenues available for public objection are 1) a change in ordinances, e.g. design review standards, 2) sufficient public outcry to discourage the developer - not likely but it has happened elsewhere and 3) a change in zoning prior to developer application; this must be initiated by the property owner, City Planning Director, Planning and Zoning or City Council and is highly unlikely.

Re-zonings, on the other hand, are another matter. The City Council has the authority (and P and Z can recommend) to deny a rezoning. This is because our zoning ordinance specifies that "the proposed change would not be detrimental to the majority of the persons or property in the surrounding area nor to the community in general." Why, then, have no rezonings been denied in the past 13 years while 53 have been approved? Some members of Planning and Zoning and the Council, quite understandably, may think a proposed development is a good idea. Others don't but get worn down, partly because of the inevitable, and appropriate, negotiations among developer, staff, P and Z and Council. Typically, the developer makes enough concessions to get some votes though the changes often seem minor to opponents. Another factor is the fear of something worse occurring under existing zoning. While this fear is sometimes warranted, I think it is greatly overdone. I think the Rio/Lockett Park subdivision approval is an example of both of these tendencies.

Finally, comes fear of a lawsuit should a developer be denied. Developers and their attorneys seldom fail to raise this specter which is subtly, or not so subtly, reinforced by the City Attorney. There is no legal basis for such a suit because denial of an upzoning is not a "takings," (though it would be if Arizona voters had not overwhelmingly defeated Prop. 300 back in 1994). Just the same, Council members are leery of attorney's fees and citizen anger - maybe even a recall. I think this is an indefensible position because it is a form of intimidation. I also think it highly unlikely that a developer would gamble considerable money and much loss of time on a suit they have little chance of winning. Maybe Dell Webb or Tom dePaulo would file a lawsuit but we aren't that "big time" - yet. Nevertheless, I believe a Council is unlikely to deny an upzoning unless they have a clear indication that the citizenry is behind them. Public support for "saying no" to a development can be shown by letters to the newspaper and to Planning and Zoning and the Council; by speaking out at public hearings and by initiating a referendum following Council approval. The Tucson City Council has recently taken an even more "risky" action by reversing an upzoning, saying they welcome the chance to test the legalities. It will be enlightening to follow this one.

I think many people are unclear that well publicized and generally good planning documents such as our Open Space and Greenways Plan, our Flagstaff 2020 visioning document, and the upcoming Regional Plan are only advisory; they have no teeth. This is illustrated by the recent approval of Fairway Peaks which violates the spirit and almost all the specifics in the vision document.

Norm Wallen is a community activist who recently stepped down from his Flagstaff City Council post after four years of service.