Making Developers Toe the Line--Kind Of

Nobody likes to admit it, but the much-ballyhooed zoning agreements intended to forestall battles between neighborhoods and developers are riddled with loopholes that can leave residents out of luck.

And probably no one knows that better than Phoenix Councilwoman Linda Nadolski, who's pushing a bill in the state legislature that would allow cities to enforce stipulations, or zoning conditions, as they do their zoning ordinances. Which is to say, with the threat of criminal penalties for violations.

Nadolski calls the bill "preventive medicine" and says it's good public policy to let neighborhoods know the city will stand behind the deals they make to protect their homes. "So many neighborhoods have really come to rely on the conditions they negotiate with developers to mitigate damage to their lives," she says. "I don't have a good example to offer you of a developer violating a zoning condition, but our attorneys and zoning enforcement officers tell us many of the conditions in existing agreements are not enforceable under the present law."

Though she's loath to discuss it, Nadolski has had firsthand experience with the problem.

Nadolski rode to power in east central Phoenix as a neighborhood champion in 1986, only to find herself in the humiliating position last year of giving developer J. Fife Symington additional goodies for the Esplanade just so he'd keep his original bargain and help pay for street improvements. His price for compliance was the city council's approval of taller buildings and more square footage, changes bound to generate even bigger traffic headaches for surrounding single-family neighborhoods.

The reason for the deal? The original zoning conditions Symington had agreed to--and ignored--were unenforceable, city council members learned to their dismay. Probably no one on the council suffered more political damage over the incident than Nadolski, in whose district the Esplanade is located.

Nadolski and the Neighborhood Coalition, the local brain trust for neighborhood preservationists, see their legislative measure as the way to lock up concessions won by residents, so the city never, ever has to go out and "repurchase" them at such a cost.

And they've succeeded in winning at least passive acceptance of their legislative measure from developers in the Valley Partnership, a group made up of developers and neighborhood leaders. "We don't see a problem with the bill, at least philosophically," says Dave Bixler, executive director of Valley Partnership. No developers testified against the bill in legislative committee hearings held last week, and zoning lawyer Bob Kerrick, who chaired the Phoenix Planning Commission last year, predicts that opposition to the concept by developers will be unlikely.

If the developers seem inordinately well-behaved about a bill that would cramp their style, it may be because the measure is not all that effective. That's the opinion of some, anyway.

"I'm not upset about it, but I don't think it's gonna help all that much, either," says Grady Gammage, a Phoenix zoning lawyer and leader in Valley Partnership. "It's a minor Band-Aid."

He explains: "You've got the problem of vagueness--some of the conditions aren't very artfully drawn, so they're subject to interpretation. You've also got an enforceability issue because in some cases all the neighborhood is offering is a promise not to object, and that's not enforceable because it's protected by the First Amendment. Courts have held that, because the neighbors' promise is not enforceable, neither is the developer's side of the agreement.