By Roland Murphy for AZBEX
A little more than a year ago, I talked with Withey Morris Partner Jason Morris to get his take on the state of zoning and entitlement issues around Arizona. (AZBEX, Feb. 22, 2022)
Since he was forthcoming, effuse and exceptionally quotable in his responses—and since the intervening year has been chock full of variations on the same themes—I decided to reach out again to get Morris’ take on what’s changed, what hasn’t and what the future may hold.
The hot topic last year was HB 2674, a bill in the Arizona House that would have stripped municipalities of much of their power to determine project approvals and zoning. The bill came as a shock to cities and towns and created an uproar of protest before being withdrawn by its sponsors, Republican State Representative Steve Kaiser and Democratic State Representative César Chávez. (AZBEX, Feb. 8, 2022)
In the year since, Kaiser has been elected to the Arizona Senate. He introduced a somewhat milder but still inflammatory bill—Senate Bill 1117—in the current legislative session. That bill generated similar responses from municipalities and the League of Arizona Cities and Towns before being voted down in the Senate by a vote of 9-20.
Despite the defeat, Kaiser is continuing efforts to get the bill’s less controversial measures put into law. Some of those include requiring cities to allow auxiliary dwelling units (backyard casitas) and duplexes and triplexes, as well as limiting design reviews and public comment periods.
Given the timeliness of the issue and the nearly one-year anniversary of our last conversation on the issue, it seemed a perfect place to pick the conversation back up.
The Need for Reform is Real
Talking about the recent vote on SB 1117, Morris called its defeat “a net positive,” but he cautioned, as he did a year ago, that the matter was far from finished. “At the end of the day, the state controls our zoning,” he said. “The cities don’t. So, if cities believe the status quo is acceptable, they’re going to be in a world of hurt in future legislative sessions. I anticipate that we will ultimately see some significant changes. We have to because the status quo is unacceptable in terms of land use.”
The status quo to which Morris referred is cities’ refusal to adjust outdated zoning for new development, particularly for multifamily. It was that complicated patchwork of zoning regulations around the state, many of which have not been updated in decades, that led to Kaiser’s legislative proposals.
I reminded Morris that last year we had referred to state actions as parents taking the kids’ metaphorical keys away if they refused to behave. “That’s well stated, and—not surprisingly—children being children, they did not show any restraint or make any significant changes. It’s almost as if they thought knocking the matter back for a year meant doing away with it forever. Then they were somehow surprised when the matter dared come back up because the issue was still not addressed. It’s mind-boggling.”
As one of the larger and better-known land use law firms in the state, Withey Morris regularly represents developments that encounter significant opposition to their requests for rezoning and plan approvals, particularly from resident groups and their supporters in local government who take a reflexive Not In My Back Yard view of change.
“I’m tired of this,” he said. “There’s such a disconnect between the lowest levels of entitlement process—whether it’s staff or a voluntary board that’s looking at entitlements or whether it’s a homeowners’ association acting to protect their piece of the globe—and not looking at the larger picture impact of 100 like-minded groups all saying, ‘Not in my back yard.’ The end result is somebody is going to take your ball away from you and tell you, ‘No, it’s not your game and you’ve proven yourself incapable of being in charge of this.’”
Morris continued, “By the way, I’m not advocating for this to happen. We have an opportunity, both in the land use perspective and in terms of water, to make significant changes to ensure a positive future, but if we continue to keep on doing what we’ve been doing and pretend that those things don’t exist, then we’re going to find ourselves behind the eight ball.”
Consistency Across Municipalities
Another topic we discussed as a step in the right direction last year, and one that supporters of state action could take some degree of comfort from feeling that they had taken action in the right direction, was the possibility of establishing standards at the state level to provide universal definitions for land use. Under such actions, terms like low-, medium- and high-density would have consistent definitions across municipalities. A medium-density project in Phoenix would have the same criteria as one in Scottsdale or Bullhead City.
Another, related item would be requiring cities with populations larger than a set minimum to provide areas for development and land uses for each density and development type, removing some cities’ policies of mandating project densities insufficient to meet local and regional needs.
“That’s spot on,” Morris said. “Having some sort of universal definition so that people are comparing apples to apples can only help the debate. I would go a step further and say unless there is going to be significant movement on the part of the individual cities and towns, then the state may be well within its rights to create some zoning parameters for the benefit of the citizens of the state. The alternative is to just see how things go, and I’m not optimistic about that.”
We also discussed common issues encountered in project opposition and the inherent irrationality associated with some of them. Two of the most frequently encountered arguments raised by NIMBY forces and their supporters are projects they feel are too dense or too tall.
In an age that is moving toward a greater social impetus for sustainability, these concerns are rooted in sentiment, not logic. Density makes the most efficient use of both new and existing infrastructure, and Morris had a great deal to say about height.
“Limiting height is the least sustainable approach to development in the universe. Every time you take a floor off a building, all you’ve done is make it less energy efficient, less economical and far less affordable. You have, by proxy, endorsed sprawl.”
Just as we had a year ago, we wrapped up our conversation with me asking Morris where he wanted to see things a year from now. Despite his frustration with the slow pace of progress, he kept an optimistic tone in his response.
“A year from now, I am hoping that all of the cities have had and, more importantly, have taken an opportunity to review their building and development codes to see where they can permit additional efficiencies without taking away from local control. The alternative is, if they don’t, they may not have that opportunity in two years.”