GUEST COMMENTARY | A Case Against Waivers

05/14/14 | By | 252 views More

Several weeks ago, Seth Cagin penned a thought-provoking commentary suggesting that rules should be broken to provide variety in the town’s landscape and to achieve public benefits. His argument was that zoning, especially mass and scale, should be waived to accomplish these purposes. What he failed to recognize, though, is that “waiving” the land use code is a whole different process than “allowing” the differences. While I don’t disagree with the diversity of building forms Seth wants to encourage, the devil is in the details of the process.

Variety in design – shape, size, how a building looks or fits on a lot – is good planning. It makes a place more interesting. What’s also important is maintaining a scale that respects the integrity of a place, and it’s what people value about Telluride – the historic scale of the place speaks to them. What gets tricky is allowing creativity and change while still respecting this scale.

What Seth forgets is that there’s a difference between throwing out regulations, i.e., waiving sections of the code, and varying them. Telluride established the PUD process to allow the latter. It specifies that in exchange for providing public benefits (which are spelled out in the PUD), an applicant may vary development standards. It provides a context for variation.

The problem with allowing waivers is the message it sends – if you don’t like something in the regulations, ask for it to be ignored – without any context or limits. It’s bad process because it discourages planning and it starts to look like spot zoning, which the courts frown upon. A better approach would be to amend the PUD regulations to address changed conditions and provide clear direction for what is acceptable.

The current trend, towards an increased use of waivers rather than directing applicants to the PUD process is troubling. It opens the door to all sorts of unintended consequences and smacks of unfairness. When is it OK to waive something and when is it not? Who gets waivers and who doesn’t?

I’ve been involved in the town planning process for many years, and don’t remember a time with so much emphasis on waivers. Curious about their use, I looked at waivers considered by the town over the last 20 years or so. For the most part, Town Council has been very sparing in its use of waivers for applications involving mass and scale. Waivers have primarily been granted for such things as application fees, allowing more than one principal building on a lot and land dedication requirements.

Council granted height increases three times (for the pavilion in town park, for an historic building and for a project that had a 1980s era agreement on height) and denied other requests. Only two mass/scale waivers were granted – one for a grocery store (never built) and another for a church. Several other mass and scale requests were withdrawn after consideration.

I would encourage the town not to rely on waivers for mass and scale. If something isn’t working, better to amend the PUD process to give clear direction and context to land use decisions. To do otherwise makes a mockery of the planning process and leads to chaos, and potentially to lawsuits.

 Levek is the former town planner and mayor of Telluride.

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Category: Guest Commentary, Opinion

Comments (2)

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  1. Seth Cagin says:

    I wasn’t as clear in my commentary as I thought I was. I don’t believe that waivers are the only or the best or even an appropriate way to achieve good planning. My point was that since they are permitted in the Town Land Use Code, you can’t blame an applicant for seeking one. I also think that absent waivers, the LUC doesn’t allow enough variety in the townscape or enough flexibility to town officials and developers. I would love to see the LUC opened up to give town officials – HARC, P&Z and council – more ability to allow variances. Applications would still be subject to an exhaustive public process, so my strong sense is that it would not and could not be abused. Just as it is hardly easy for a developer to get a General Waiver now.

  2. Jim P. says:

    Good points, Amy, and I agree with most of your reply too, Seth.

    Amy, the Telluride Transfer applicants, and the Town attorney as well I believe, stated that the variances TT wanted couldn’t even be asked for in the subsequent PUD process, without the general waiver being approved first….is that correct?

    I for one stated at their hearing that I was potentially in favor of some of the proposed variances — including increased height — but that they were offering unclear & insufficient public benefits in exchange.

    My understanding of our PUD process has always been that it opens up a negotiation to mutually benefit both the applicant & the public……as Amy says, the idea & reality of a “waiver” seems unnecessary at best.

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