By Roland Murphy for AZBEX
HB 2674 – the bipartisan legislation proposed by Republican Arizona State Representative Steve Kaiser and co-sponsor Democratic State Representative César Chávez to preempt “local laws, ordinances and charter provisions” that limit residential development – has generated increasing levels of controversy among local officials, development opposition groups, housing advocates and other stakeholders dealing with the quagmire minutia of guiding proposed projects through the approval process.
Excellent high-level overviews of the bill are available at The Arizona Republic and AZ Big Media. The full text of the legislation is available here.
In this piece, we will provide AZBEX readers with a middle ground, looking at the various components of the legislation in detail, but offering up a summary without the legalese and without commentary. All quoted and partially-quoted entries have been edited for formatting.
Before getting into the meat of the bill, we need to explain the legal concept of “zoning by right,” also known as “use by right.” As defined by The Community Planning and Land Use Community of Practice, “A ‘use by right’ is a use permitted in a zoning district and is therefore not subject to special review and approval by a local government.”
The bill amends eight sections of Title 9 of the Arizona Revised Statutes, repeals one section and adds two new ones. Many of the amendments simplify legalistic language in the current statute, changing wording like “issuance of” to “issuing,” etc.
The crux of the bill is the addition of Section 9-462.09, which extensively revises local bodies’ authority under the zoning and approval process, preempting them in favor of a more relaxed and centralized state-level process. Most of the amendments not dealing with language revisions serve to establish the authority of the new addition.
Section 9-462.09 begins by laying out its intention and justifying its need by stating, “Housing supply and affordability are matters of statewide concern. All local laws, ordinances and charter provisions that are contrary to, inconsistent with or more restrictive than this section are preempted, and a municipality may not by law, ordinance or charter provision regulate, restrict or limit residential zoning, residential construction or residential development standards, except as expressly authorized…”
The rest of this article will cover the key aspects of the new section.
Among other changes, Section 9-462.09:
- Establishes “zoning by right” for any land in districts currently designated for agricultural or single-family dwelling use to allow the construction of up to eight single-family or 12 two-family units per acre;
- Allows multifamily development standards in commercial and residential areas for heights of up to 55 feet or the highest currently allowed within one mile, whichever is greater. For developments located within a half-mile of a bus or rail stop, freeway or major arterial road, the maximum height is raised to 75 feet;
- Sets density limits to the maximum currently allowed density for a mixed- or residential use within a mile of the proposed site, or for the nearest multifamily development if there are no mixed- or residential uses within a mile;
- Prohibits municipalities from requiring general plan amendments, use permits or reviews by boards or commissions for housing projects that would fall under the new ‘by right’ conditions;
- If an applicant requests a land use designation change for a site to allow it to build housing, the municipality has to determine within 30 days whether the application is administratively complete. If it is found not to be complete, the municipality has to follow procedures laid out under statute until the application is determined complete.
Resubmitted applications have to be ruled on within 15 days of receipt, and the municipality is required to approve the application within 90 days unless a property owner in the zoning area “demonstrates by clear and convincing evidence” that the development hasn’t addressed a direct impact that the complaining owner will suffer while on his or her property. (Emphasis added)
If those direct impacts are found to objectively exist, municipalities’ required mitigation measures cannot “create an undue burden” on the development and construction. The municipality will be required to specifically identify the least restrictive way to address the problem and then conditionally approve the application while the developer addresses it. - Applicants may file a complaint and request a trial in Superior Court if they believe a municipality has violated the approval and mitigation processes. As a “trial de novo,” the Superior Court will have to consider the evidence without regard to any prior municipal proceedings. Courts cannot defer to municipalities’ past findings or conclusions, and the burden of proof will be on the municipality to show that the complaining property owner will be harmed while on their property if the development proceeds and that it has identified the least restrictive way for the developer to solve the problem.
Design Standards and Enforcement
In one highly substantive amendment to existing procedures, the bill also curtails municipalities’ ability to capriciously delay or hinder projects based on local design standards. Specifically:
- Municipalities cannot adopt or enforce ordinances or other legal requirements that would withhold a building permit or other approval “related to or regulating residential housing design elements.” There are exceptions for historic locations and landmarks, safety concerns like flood mitigation and private agreements between property owners;
- Applicants who are denied permits or approvals based on design standards will be allowed to bring an action in Superior Court;
- Design elements specifically covered include floor plans, exterior elevations, the number of stories (except as they affect maximum heights), the style/materials/shapes of roofs/porches/patios, garage and driveway orientations, most landscaping (including common areas), open space and amenities, sidewalk placement, and, “any other architectural or aesthetic element that does not directly affect an objective and identified health or safety condition.”
Building Codes and Energy Conservation
Another amendment would prevent municipalities from using building code and energy efficiency regulations as a way to deny approval for residential projects. Specifically:
- Except for energy efficiency conservation, all building code requirements have to be adopted solely to provide “a reasonable level of safety and health;”
- If a municipality implements a requirement that is more strict than the most recent unamended model code, it must show the stricter requirement is necessary to prevent “an imminent objective threat to safety or health;”
- Residential or commercial building codes related to energy conservation have to show conservation as the sole purpose for the code, and
- Starting January 1st, 2023, cities and towns will be required to conduct an analysis to report the up-front cost of any proposed building code change and an analysis to determine electricity cost savings. If the municipality cannot show a proposed efficiency change would pay for itself within five years, the change will not be allowed.
Miscellaneous Items
In addition to the major additions and amendments shown above, there are also several small amendments that narrow municipalities’ operational latitude, including:
- A municipality can issue one comprehensive request for corrections in a proposal. If an applicant requests a meeting to discuss the corrections and get instruction on how to address them, a meeting or discussion must be held within five business days;
- Municipalities are generally prohibited from denying license applications that are necessary for land development or building construction;
- Applications for licenses and approvals will be considered approved if the municipality fails to issue them in the overall time frame under the statute, and the municipality will be required to post those time frames for all license applications on its website.
Status
As of February 3rd, the bill has been introduced and had its first reading in the House. It has been referred to the Commerce, Appropriations and Rules committees, but no committee actions have been taken yet.