New Ordinance May Kill Residential Zoning

RICHLAND – For the past year or more, Richland County Council has leaned on the County Development Roundtable to make land development policy that could end up turning zoning throughout the county, as well as land development, on its head. It has to do with the County’s current Green Code that was developed in 2008 by an earlier Roundtable group. There is no history of what went into that ordinance and now the County is preparing to replace the Green Code with a less restrictive but much more complicated provision.

The Green Code was little used until Tracy Hegler, the County’s current Planning Director, was hired. LongCreek resident Sam Brick currently has a lawsuit pending against the County, stemming from their application of the Green Code in the LongCreek Plantation subdivision. According to Brick, Hegler, in her Development Review Team (DRT) role, has focused on some Green Code ambiguities. To aid local developers, Brick said, she has determined in Green Code applications that residential zoning standards do not apply.

Interpretation of Bonus Space

Brick says this is in the face of specific provisions in zoning ordinances that reference the Green Code and its bonus provisions. Hegler’s interpretation is that the bonus provisions are not necessary because of a conditional provision to get to the bonus that says no minimum lot areas are required. This interpretation is before the Circuit Court along with another strained determination that, under the Green Code, the requirement for 50 percent pervious surfaces in buildable areas is only applicable if the developer uses such surfaces in sidewalks and driveways.

“So, of course,” Brick said, “a developer will jump to abide by such a costly ‘green’ provision.”

Since major land development is within the purview of the Planning Department and its DRT that makes final decisions on Green Code projects, Hegler’s interpretations are final.

Roundtable Membership

Because this issue has caused even the County Council to wince at some of these interpretations, Council has requested the Development Roundtable to suggest changes to the Green Code. A third of the members of the Roundtable are members of Hegler’s staff. The other two thirds are people she appoints from the development and conservation communities. There are no representatives for neighborhood zoning or property owner associations’ interests. Even though the Roundtable is an advisory body that drafts proposed ordinances regarding land development policy, its meetings, agendas, reasons for action, discussions, decisions, etc. are all done in secret. This may be a violation of the Freedom of Information Act, a matter that Brick is pursuing in the Court of Common Pleas next week.

On April 22, the Roundtable presented its draft proposed ordinance in a work session with the County Planning Commission. The meeting was advertised seven days ahead of the meeting but the subject of the meeting did not mention the Roundtable – only that it would be a work session. The notice said the “topic will be open space design standards.” There was no mention of the Green Code, although the proposed ordinance would replace the Green Code. There was no mention on line in the Richland Web sites that such a meeting would occur and no notice by the Planning Department of the meeting to persons who had expressed an interest in the topic other than a personal email from Hegler to the Executive Director of the Columbia Home Builders Association. According to Brick, what the Roundtable presented to the Planning Commission is complicated, complex and internally inconsistent.

The Open Spaces proposal

The proposal is for a developer to set aside some lands as a conservation district or as an “open space,” in order to be free of the otherwise applicable zoning standards. According to Brick, it also forces property owner associations (POAs) to accept the open space and to maintain it in perpetuity. If the development occurs in an area covered by a property owner’s association with the association being under the control of a developer, as is the case throughout Richland County, that property owner’s association would pick up the tab for the management, the upkeep and the total care of the set-aside. The POA would have to maintain expensive storm water systems to include whatever low impact development techniques the developer might utilize.

There is no evidence that Richland County POAs were involved in the preparation of this proposal. Even though the residential zoning standards would not be applicable, the change from their applicability would not be controlled by the County Council. Actually, there is no indication as to what the zoning would be in an “open space” development.

Council would be no help

Should a community want to complain about an open spaces development in its midst, it would not be to their County Council representative. Council would not be involved. It would be approved or denied in accordance with land development ordinances by Hegler and her Planning Department.

“With the open spaces proposal,” Brick said, “a builder developing a parcel over 2 acres could set aside a front yard or such as an open space and build without any zoning standards.”

The Columbia Home Builders Association testified that this would be great. In residential areas, they could build houses on concrete slabs right next to each other.

The ordinance speaks to reduction of impervious cover being a purpose of the provision but the only mention of impervious surfaces is with regard to unenforceable suggestions for the mentioned low-impact techniques and restoration of some pervious surfaces made impervious by the developer. The current Green Code limits builders to 50 percent impervious surfaces in their buildable areas. The Roundtable eliminated this provision, which is standard practice throughout green code provisions all over the United States. While the open spaces purpose section speaks to preservation of green space, provision for recreation, protection of wildlife habitat and creation of community and pedestrian connectivity, there are no provisions requiring these purposes included in its terms. Such provisions are specified as requirements in the Green Code. Regarding pedestrian connectivity, the “open spaces” proposal allows pedestrian connectivity between neighborhoods but only with Planning Department approval. In the Green Code, pedestrian connectivity is required. The proposed changes provide enhanced authority for the Planning Department to make determinations regarding conservation issues. Yet, Richland County has its own independent conservation department currently run by a conservation professional at the doctorate level.

The proposal sets forth a series of subjective constrained and unconstrained spaces of varying types and circumstances. It provides credits to be awarded by the Planning Department with complicated calculations, multipliers and bonuses. It considers lakes or open water as a constrained space that would qualify for a set aside bonus. When the builders were asked about this in the work session, they defended the practice by stating that the lake could be drained and they could then build on it. The proposal has never been discussed in a public setting.

County Council, after flawed notice of its consideration of the proposal and first reading of the ordinance, quickly passed, the proposed ordinance during its May 28 meeting.

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