To better provide consistency and enforceability of future zoning cases, the City looked at possibly creating a list of standard zoning stipulations and discussed those methods with Council and the Planning and Zoning Commission at the joint study session last week.
"(Stipulations) can be very problematic from a risk-management standpoint," City Attorney Steve Kemp said. "A bad planning stipulation can create litigation."
Risk management litigation is costly, he said, and for that reason the City has "moved away from unique stipulations."
Using other cities' stipulations for example, Kemp said one had a stipulation stating the R-1 (one-acre single-dwelling) lot "shall be animal friendly." Another noted, "The height of the building shall be mitigated by color."
He said Peoria had a few examples of bad stipulations as well, such as the one for new single-family home subdivisions being developed next to older communities. That stipulation said the new home "shall match the adjacent single-family home."
"This doesn't mean we won't have projects that will need special stipulations," Kemp said. "But there's nothing wrong with saying ‘No, I don't like this' and continuing the case instead of writing the stipulation right there."
But Mayor John Keegan said on the flipside they have had issues that were "easily resolvable, where you don't have to hold a person up."
"Maybe come up with a process," he said. "Four, five or six things a stipulation should have and if it doesn't have meet with the developer and coordinate where it's too ambiguous."
Kemp agreed there is no problem taking care of a stipulation the evening it appears before Council and taking a 10-minutes recess to review before taking action.
Councilwoman Pat Dennis said her concern was making sure the developer follows through with the stipulation.
"The problem is the stipulations get lost in the orders," Dennis said
Community Development Director Debra Stark said with the new GIS system now they will be able to click on a parcel. The stipulations are recorded with the plat, she told Council, so the City code compliance would be better empowered to enforce.
Kemp and Stark also discussed other legal issues faced by Council and the Commission during planning and zoning hearings.
"Sometimes you have to make unpopular decisions with the residents," Stark said. "But there are other laws out there we have to abide by."
Arizona is unique, Kemp said, because zoning is deemed to be a legislative act. He said final plats, special-use permits, and site plans are all administrative action.
"The courts are having problems with this," Kemp said. "And other laws out there."
The Federal Fair Housing Act of 1988 is based on the concept that housing for people with certain disabilities be treated the same as single-family homes, such as group homes.
"Takings," such as property, is another legal issue filing court rooms, Kemp said.
"If the government takes too much it has violated your Fifth Amendment rights," Kemp explained. "‘Takings' have to be reasonable use and reasonable value."
Kemp said in those cases there needs to be a balance.
With the Growing Smarter legislation, comities of 50,000 or more had to have a General Plan with a number of specific elements, he said.
"As a result, the General Plan took on much more status then it did before," Kemp said. "It was-the City's zoning shall be consistent with the City's General Plan. It changed to consistent and conform to."