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What's the Rush?

The city considers proposed code changes that could help businesses—but harm neighbors

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While he campaigned for a City Council seat last year, Richard Fimbres pledged to streamline Tucson's land-use code (LUC). After being elected, he followed through on his promise—and critics say that the community may be harmed as a result.

In late March, the council approved a motion by Fimbres to have a draft revision to the LUC prepared within 90 days. The change would remove existing buildings from having to meet numerous mandates of the LUC, such as parking and landscaping improvements.

Presently, land-use code standards must be met in order for the owner of either a new or existing building to obtain the required certificate of occupancy (CO).

Developer Tom Warne, who says that he's been working on the LUC issue for three years, notes that only one of his properties would be impacted by the proposed LUC amendment. Warne believes there are several advantages to the possible revamp.

"It will make it easier for owners of small businesses, so the consequences will be increased employment, increased sales taxes, and stemming the deterioration of inner core neighborhoods," Warne says.

Warne says the current LUC is "totally inoperative." As for the proposed changes, Warne says: "The process for obtaining the CO will have set procedures and ... it will also make Tucson more competitive with other communities."

In the past, Warne claims, a business moving into an existing building faced a Pandora's box of regulations, because the complex LUC rules could be interpreted differently, depending upon how many city inspectors were involved.

"If you make it too difficult," Warne warns, "you end up with empty stores."

According to city planner Glenn Moyer, the proposed ordinance would allow a CO to be issued to a new business taking over an existing building if the structure has the same footprint as it did in 2005, when extensive air photos were taken.

"If the building hasn't had an addition," Moyer explains, "then it can be deemed to be in zoning compliance. If it has the same configuration and no zoning complaints, it can be approved."

Warne admits this change may cause some difficulties, because it will potentially grant a "get out of jail free" pass regarding zoning violations that haven't been identified.

"There probably will be a few isolated cases," Warne concedes, "but I expect most will have been complained about."

Neighborhood activist Ruth Beeker isn't so sure of that. She is concerned about potential problems that the draft ordinance could create—including its waiver of almost 100 pages of LUC regulations.

"When it's implemented, do we have the pieces in place to ensure we're not getting nuisance (businesses)? I don't think so," Beeker asks.

One example that raises concern is the Coffee X Change at Grant Road and Campbell Avenue (See the Nov. 19, 2009, Guest Commentary.) In that situation, a lack of sufficient parking has led to a nightmare for neighbors of the 24-hour business.

"If we're going to do something that will have potential impact on surrounding areas," Beeker says, "we need to look carefully at it. ... Before we put this in place, it needs to be carefully dissected."

Despite her worries, Beeker acknowledges that she could find the proposed ordinance to be acceptable. However, she thinks much of the language is subject to interpretation, and the LUC committee she sits on didn't have a chance to review the proposal in detail.

Given the council's 90-day timeline, the topic was only "mentioned" at the committee's meeting in March. It then went to the Planning Commission for review in April and a public hearing in May.

After a lengthy session at which several opponents and a few supporters spoke—including Warne—the Planning Commission, on a 7-2 vote, suggested that the City Council approve a slightly modified ordinance.

Included in the draft recommended by the Planning Commission is a provision that a site inspection by city staff to verify zoning compliance "may be conducted." That language considerably weakened previous language saying that "a site inspection is required." Even Warne acknowledges that the provision needs to be strengthened.

Beeker calls the Planning Commission meeting "a total farce" and labels the four changes they recommended to the proposed ordinance "Band-Aids."

"We're using a hammer to swat flies, but it's an old Tucson tradition to do things like that using the LUC," says Rick Lavaty, chair of the Planning Commission and one of the two members who voted against the ordinance.

Even though the proposal won't necessarily influence how commercial buildings are inspected for safety, Lavaty says: "I'm concerned we're introducing health and safety issues (into the process). ... Down the road, this may impact neighborhoods, such as with a bar with inadequate parking, and the residents will have nowhere to go."

As for the ordinance-adoption process, Lavaty observes: "Seeing the mayor and council bypass their own (LUC) committee bothered me, but there's a Tucson tradition for that also."

The ordinance is scheduled to be considered at a City Council public hearing on July 7.

"I'd like to see the council not accept the document," Beeker observes, "and the city staff be given direction to start at the beginning and get it right this time."

Speaking for Fimbres, his aide, Mark Kerr, says that remains a possibility.

"The council may send it back to the LUC committee," Kerr says.

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