Overlay Overload

For a variety of converging and interconnected reasons, Kansas City has seen a flurry of activity in recent months related to its development codes and standards. Three major updates to development standards have been adopted for the Downtown Loop, Troost Corridor, and the City’s Parkways and Boulevards. With support from a Mid America Regional Council grant, additional standards are being studied for Independence Avenue and the Marlborough neighborhood. The City Council recently proposed study of standards on Linwood Boulevard, and the City has taken steps to establish a design review committee for Manheim Park. The City updated some districts and standards adjacent to the Downtown Streetcar starter line as it pursued federal funding for streetcar construction, and is now reviewing a more comprehensive transit-oriented development policy that includes new standards and modification to existing standards that would apply throughout the City.

This renewed focus follows a five year period with very little action or attention given to the City’s regulatory tools. When Kansas City completed a ten year process to overhaul its zoning code in 2010, the region was still recovering from recession. Development activity was almost non-existent, particularly in the urban core. Now, as the economy improves, the desirability of Kansas City neighborhoods increases, and catalytic investments like the streetcar spur new investment, development activity is exploding. Predictably, as the pace and scale of development has increased, so has friction with established neighborhoods, where residents and community stakeholders fight to affirm expectations and realize their visions for better neighborhoods and a better city.  The City is faced with the dual goals of encouraging development it desperately needs and striving to establish quality communities that can sustain and thrive over time.

In this mix it seems that the zoning overlay has become the regulatory tool of choice. The reasons for this are varied, but at the most basic level communities are recognizing that existing tools and processes are not up to the task and looking for any course of action that will achieve better outcomes. While every neighborhood and community has its share of regrettable projects, a handful of recent cases highlight some of the specific shortcomings with the City’s development review.

Sometimes the Right Regulatory Tools Are Missing

In 2014, an existing building was demolished in the historic Garment District to build a new pad site Jimmy John’s restaurant and drive-through. This project drew strong opposition across the board. Neighborhood representatives, business leaders, adjacent property owners, City staff, Parks Board, Plan Commission, and City Council all agreed that the drive through restaurant use was not appropriate, the scale and orientation of the building was not appropriate, and the design was not appropriate. But none of that mattered in the end, because when the City adopted its new zoning code in 2010, created new districts especially for Downtown, created process for neighborhood notification and public hearings, and identified drive-throughs as uses that require special scrutiny, it never actually adopted its new zoning districts for most areas. This particular area was zoned for industrial uses that disappeared decades ago. As a result, design review was not required, and there was no public forum to review or debate the appropriateness of the development. This example of the inability of the City to support and protect its own policy and development goals Downtown spurred efforts to finish the downtown zoning process begun in 2010 and adopt additional design standards. The project was also one of several factors cited by City staff when it pursued new standards for development along Parkways and Boulevards.

Sometimes Code and Policy Tools Aren’t Used How They Should Be

More recently, the City approved a development plan for a new hotel in the Crossroads Arts District at the southwest corner of 20^th and Main Streets. At the intersection of strategic investments in the Downtown Streetcar starter line and 20^th Street streetscape, this site is particularly important for the City, and one with great potential. The value of this location, combined with the City’s efforts to remove billboards and a viaduct that were inhibiting investment, created expectations that development of the site would be able to capitalize on the supportive investments and opportunities around it. Despite the City’s adopted policies and strategic focus to encourage transit-oriented development, the proposed development was an auto-oriented, parking-dominated concept that ignored public investments around it. Initially, the concept placed mechanical storage at one of the City’s most important corners, and skipped a front door altogether, placing its entrance in a vestibule in the rear of the ground floor parking level.

With neighborhood and City pressure, some improvements to the design were made before final approval, but the project remains an example of the deep disconnect between the City’s goals and its development review process. In order for private development to be possible here in the first place, the City had to provide the property, remove billboards, demolish a viaduct, and grant incentives. This should give the City incredible leverage in achieving its highest goals for development at the site, particularly because of the great value added by surrounding investments. Beyond leverage, dozens of specific policy and design recommendations adopted through the City’s Greater Downtown Area Plan provide the policy framework to shape better outcomes.

This case is representative of a broader shortcoming in the City’s development review process, which is that the plans and design guidelines that communities work so hard shape and adopt are either treated as suggestions or ignored altogether when it comes to review of specific development projects. In simple terms, the zoning code is mandatory law, and adopted plans are an advisory guide. However, cities are empowered and expected by state law to use adopted plans and policies in consideration of development projects. City staff reference adopted plans and policies in their staff reports, but in practice the City generally requires what is narrowly defined by zoning. For all of the time, effort, and dialogue invested in crafting area plans and policies, communities see these tools discarded in precisely the situations where they should determine the future quality of their neighborhoods.

Using plans and policies in development review is tricky. It requires staff to be trained and supported differently and plugged in to complex and diverse issues across Kansas City neighborhoods. The high-level and discretionary nature of policy (as compared to the black and white precision of zoning) also puts staff in a position where they can be easily undermined by elected officials to score political points. In light of these complications, it is often simpler to focus on code requirements, but the consequence of this approach is that development review decisions are detached from the community’s strategic goals and priorities.

Sometimes the City Breaks its Own Rules to Appear Development Friendly

Implementation of adopted policy is a nuanced topic, but sometimes the City simply breaks its own rules. In the case of Dollar General at 43^rd and Troost, the development proposal appeared in the context of strengthened neighborhoods, renewed community focus, and a series of public and private investments along the corridor that were positioning Troost to achieve better outcomes. Multiple recent community planning efforts articulated a vision for Troost that transitioned from used auto sales, discount retailers, and parking lots to more active, walkable, transit-oriented development on the corridor.

As it considered the development application of a poorly-designed, poorly-situated Dollar General, the City had the policy tools, community support, and market conditions to achieve something better. The City also had the adopted zoning to protect community interests. Development of Dollar General required several variances – exceptions to the adopted code – in order for the project to proceed. Even though the project undermined community goals and violated adopted regulations, the City approved the project with the mindset that on Troost any development was good development.

In recent years, the City has made it a priority to increase citizen satisfaction with City services. In the realm of development, the City battles a stubborn (sometimes deserved) reputation for being difficult to work with. From elected officials to front-line staff, there is a strong pressure to be flexible, accommodating, and customer friendly, and the customers for the Planning and Department are generally developer applicants. These pressures allowed this project and others to slip through the cracks, even when existing zoning should prevent it.

Overlays to the Rescue?

To its credit, the City has recognized many of the shortcomings in its development review process identified above – sometimes as a result of emphatic neighborhood feedback. The City has also undertaken some soul searching about the operation of its Planning and Development Department, described in detail here. Increasingly the City has turned to zoning overlays as the answer. To evaluate the merit of this approach, it is helpful to review what exactly an overlay does, and some of the benefits and drawbacks that go with it.

Most cities have adopted zoning as a tool to guide development and protect quality of life. The zoning code is the rule book for land use and development in the City, and lays out for each property the permitted uses, intensity of development, interaction with surrounding properties, and standards for design. Because there are land uses and types of development that are appropriate in some locations and not others, the rules for development are organized into different zones or districts. Kansas City’s zoning code includes residential, office, commercial, industrial, and special downtown districts. These districts constitute the base zoning in the City, and in most cases the only zoning.

At its simplest, an overlay district is a type of zoning district that applies in addition to the underlying base zoning that is already in place. Typically, zoning overlays have additional requirements or stricter requirements to address unique conditions in a specific location. Several different types of overlays have been part of the City’s zoning code for years. An historic overlay is intended to protect significant historic structures and districts. A pedestrian overlay includes additional design requirements along active, walkable streets. More recent overlay proposals have applied to specific corridors or neighborhoods, such as the community-led Troost overlay, while other proposed overlays apply to certain conditions throughout the City, such as a transit-oriented development overlay. For the City and some neighborhoods, the advantages of zoning overlays are clear. If the right regulatory tools are missing, new standards can be adopted in an overlay. If the City will not or cannot use the full weight of its policy tools, then those provisions can be codified and made mandatory in a new overlay. If bad development is slipping through the cracks then additional overlay standards can bolster neighborhood protections.

Overlay districts enable the City to raise the bar on design while remaining responsive to local needs and conditions. Both of these goals are important to neighborhoods, and so it is no surprise that overlays have emerged as an appealing solution to many of the City’s development review challenges.

The Path to Bad Zoning is Paved with Good Intentions

Overlays can be useful tools, but they also cause problems. Overlay districts reduce transparency and add complexity to the City’s zoning rules. Reduced transparency makes it more difficult for community members to effectively engage with developers and the City on projects. When residents cannot easily use and interpret zoning requirements, they are likely to be at a disadvantage in the development review process. By necessity, zoning cases and public hearings for development projects focus narrowly on specific regulatory requirements. If residents cannot frame important land use decisions within the focused constraints of these requirements, their concerns are likely to be sidelined. With Jimmy Johns, Dollar General, and many other cases, legitimate concerns about the appropriateness of the development were dismissed because of a narrow consideration of specific code requirements. These types of cases make zoning a barrier to desired outcomes and are a key driver for many constituencies to pursue stronger zoning requirements. Often the use of overlay districts makes this problem worse.

Reduced transparency compounds these challenges by creating new barriers for developers as well. Developer investment decisions depend on a predictable and efficient development review process. By creating multiple overlapping sets of rules for development and changing those rules from one part of the City to the next, overlay districts add risk and uncertainty, and may genuinely inhibit development that is actually desired by the community. Many Kansas City neighborhoods must overcome daunting systemic challenges to attract new investment and development. Making the zoning code more complicated through use of multiple overlays can be unnecessary and counterproductive.

The added complexity of multiple overlapping sets of rules also makes the code more difficult for staff to administer, especially when multiple overlay districts throughout the City begin layer in unpredictable ways. For example, a base zoning district may allow a particular use while a neighborhood overlay may prohibit it. A separate Citywide overlay for other conditions may permit the use but with specific design requirements. Each zoning district is internally coherent, and reflects important community priorities, but together they create a byzantine confusion. As the City responds to growing community requests to address local land use and development priorities, these layers of regulations become even more cumbersome as each part of the City accumulates its own package of interconnected rules, and no place has quite the same expectations. When the City already struggles to connect its adopted plans and policies to its regulatory approach, a broad embrace of overlay districts across the City again exacerbates one of the precise challenges that neighborhoods face with the development review process.

This consequence of this expanding unintended complexity in the zoning code is not theoretical. It was one of the primary motivations to overhaul the City’s zoning code in 2010. Decades of incremental changes resulted in a zoning code that was difficult to administer, and included nearly forty separate zoning districts. It took many years of hard work and great expense to clean up the zoning code, but the City ultimately adopted a streamlined code that made it easier to achieve desired outcomes. The 2010 zoning update also built a number of regulatory tools into the zoning code that the City has not really used yet, but which may present a more functional and effective alternative to the adoption of multiple overlay districts.

For many, the adoption of overlay districts is perceived as a positive interim solution for communities with urgent need of better regulatory tools. Overlays are seen as an alternative to other solutions that may be more robust but are also more challenging to implement. In many ways, overlays offer the path of least resistance. A local overlay avoids bogging down neighborhood priorities with the consequences of Citywide adoption. The pool of potential stakeholders is much smaller, eliminating potential opposition or outside resistance. Regulations that are perceived as “aggressive” or “innovative” are easier to deploy in focused geographies with concentrated support. However, when an overlay district becomes the City’s only regulatory tool for the full suite of development review challenges, it begins to function as a mechanism for the City to appease residents without actually addressing the underlying issues with the policy coordination, development review, and the shortcoming of its existing zoning districts. When misused, overlay districts become band-aids on a broken code and a broken process that is increasingly difficult to patch together. This is where the City’s recent approach is taking us.

Finding the Right Tools

The City’s use of overlay districts as a catch-all solution for shortcomings in its development review process is problematic. Below are a collection of alternative strategies that achieve desired outcomes while avoiding some of the drawbacks of overlays. These strategy range from political to policy to regulation. Some require the use of new processes or standards, while others require only a change in mindset. These suggestions are a way for the City to have its cake and eat it too, improving the quality of development without degrading the effectiveness of the City’s zoning.

Use existing policy documents and area plans as intended

Because zoning codes are regulations, and comprehensive and area plans are policy documents, it is commonly perceived that the zoning code is rule book, but plans and policies are unenforceable suggestions. In actuality, Missouri state statutes clarify that city zoning should be developed in accordance with city plans, and the consideration of  city plans is the foremost consideration when adopting or modifying zoning. There is a long legal history supported by the U.S. Supreme Court that empowers the City to reject development proposals that do not conform to the recommendations of adopted plans. It is important to recognize that the City and its constituents are empowered to set and enforce development expectations in plan and policy documents. Many of the City’s area plans and other policies provide a rich and detailed collection of resources to guide design and development conversations, and no regulatory change is necessary to use these tools more deliberately. If all of the effort that communities and City staff put into developing local overlays instead was focused on building political support better use of plans, then community development expectations could be met in a way that does not the drawbacks of expanded and overlapping regulatory layers. This approach would also ensure that the incredible effort and participation that goes into the development of city and area plans is actually relevant to the consideration of specific development proposals.

Rediscover local design guidelines

Area plans as they are crafted and used today are too broad and too general to tackle many of the specific design and development priorities for communities, but that does not mean that it is impossible for policy documents to fulfill this role. If some places in the City are particularly unique or complicated or critical, then they warrant master planning and detailed design guidelines that are not possible at the scale of an area plan. Clarity, detail, and rigor can be found in guidelines as well as code requirements, and these tools can assist staff, applicants, and community members without complicating the regulatory environment. Area plans can continue to play a role in organizing and integrating these more detailed efforts into broader policy goals.

Rezone the property where existing rules are inadequate

The City spent a long time and devoted great attention to crafting the zoning districts in the code today. The existing collection of districts maintains a balance between simplicity and detail, and provides a flexible suite of tools to address many diverse development scenarios. Often, gaps in the development review process exist simply because the right zoning is not in place. Usually, a simple rezoning to a more appropriate base district can resolve most issues. In the case of Jimmy John’s downtown, the review procedures, use limitations, and other criteria necessary to prevent a drive through pad site in a historic district were already detailed in the City’s downtown zoning. By changing the base zoning from industrial to a Downtown district, the City was able to protect other parts of Downtown from similar development scenarios in the future without adding a new regulatory layer. Ideally, good overlay districts build upon the requirements of the base zoning, providing additional clarity and guidance in unique situations. Unfortunately some of the City’s overlay districts, including the newly adopted Troost Overlay, instead use overlays as a way to change the base requirements for a property without going through process of rezoning. When the City uses overlays to modify rather than supplement existing zoning, users of the code no longer know whether the rules for a zoning district are really the rules for the district, and the clarity and effectiveness of development review is reduced across the City.

Adopt design standards for base zoning districts (and stop trying to regulate form through the back door)

When multiple communities, corridors, and constituencies across the City are all clamoring for better tools to improve the quality of development, this is a signal that a citywide shift in regulatory approach is necessary. In contrast to an incremental patchwork of conflicting development requirements, the adoption of design standards for base zoning districts would in one stroke protect the entire City with one set of rules that is easy to understand, use, and administer. For some, the prospect of a Citywide change to zoning is a non-starter. Local constituents fear a watering down of standards, and City officials fear political backlash from powerful property owner and developer interests. But the current approach of adopting multiple local overlays will create the same de facto citywide regulatory conditions without the ease of use. Each overlay effort takes time, effort, and lengthy engagement. Political debate about development expectations is not avoided with local overlays – it is dispersed and obfuscated, with negative consequences for how the City governs. When so many different neighborhoods and constituencies are pushing for stronger design standards (or any design standards), the framework for Citywide advocacy already exists. Adopting design standards for base zoning districts not only facilitates more useful regulatory tools, but positions community efforts to be more impactful.

Create new zoning districts

A fundamental premise in the use of overlay zoning is that the underlying base zoning is appropriate and effective in what it regulates, and that additional requirements are necessary for some narrow conditions. When the base zoning is broken or misaligned, no overlay can fix it. There is great commonality in many the City’s existing and proposed overlay efforts, and this presents an opportunity to revisit the City’s zoning districts to find solutions that do not require complicated overlapping rules. As an example, many of the areas where the City is considering overlays are diverse, urban, mixed use corridors. It is likely that community expectations for these corridors are not too far removed from some of the Downtown districts that already exist. With a new name and some minor modifications, the City’s Downtown Mixed Use District could easily be applied to corridors like Troost, Independence, Linwood, and others.

Use the special districts that already exist in the code

When the City overhauled its zoning in 2010, there was a recognition that the more than forty different districts that had emerged over time each existed for a reason. Individual communities advocated for local development standards, and the motivation and support for these standards do not go away just because the zoning code was simplified. Recognizing that the goals of creating a simple, efficient zoning code and responding to unique local needs are both important but sometimes conflicting, the City incorporated into the new zoning code a number of creative and flexible tools designed specifically to achieve these outcomes.

Kansas City’s zoning code includes two special districts – the Neighborhood Conservation Overlay and the Special Review Overlay – that are both designed to respond to unique local design needs without complicating or degrading the City’s overall development review framework. What makes these particular tools unique is that they combine a formal, standardized regulatory process with a more policy-oriented, community based design review process. While they can be applied to different districts and neighborhood across the City, these districts help to maintain simplicity and clarity by ensuring that the process for local design review is consistent across all districts. They facilitate neighborhood design review (and formalize a process for a design review committee), and they incorporate local design guidelines into this formal review process. However, these guidelines function as a policy guide and not as separate set of regulations for each district. In this way, the Neighborhood Conservation Overlay and Special Review Overlay strengthen the City’s existing policy tools, maintain a common framework for regulation across the City, but still empower local communities to define and enforce unique development expectations. Because there are so many simultaneous efforts to enhance local development standards, and because the City seems reticent to pursue Citywide development standards, it is perplexing that these special review districts have not been employed to coordinate and integrate these efforts across the City.

Sometimes overlays are the right tool

Together, the above strategies represent an alternative approach to adopting multiple overlapping overlay districts in an effort to avoid some of the pitfalls of overlay zoning. This does not mean that overlays should never be used. In some cases, the shortcomings of overlays can be overcome by narrowing the focus and widening the geography of the district. The City’s Pedestrian Overlay is a good example. This district originated from a specific set of rules for a small geography in the Brookside area. With the zoning code overhaul in 2010, these rules were generalized and broadened to be applicable Citywide. The provisions of this overlay have since been used in other parts of the City, and for incorporation in other policies and standards. A common set of expectations across the City increases clarity and predictability for users. Supplementing the base zoning rather than modifying it ensures that the basic rules for development are always understood. A focus on specific criteria and functional needs rather than local geography helps to avoid a situation where each neighborhood administers its own mini zoning code. The Parks and Boulevard standards, while not technically a zoning tool, represent this supplementary functional approach. The City’s proposed transit-oriented development overlay is also in this category of overlays that can provide additional guidance in specific situations without degrading the function of other development review tools.

As the City explores new zoning tools to respond to community aspirations and enhance the quality of development, several things are clear. First, there is broadly-based and passionate support for higher quality development, and a recognition that there needs to be a closer connection between the development review process and the plans and policies that should be guiding the City’s future. There is also a recognition that the current status quo for development approval is falling short. In this environment, overlay districts are an increasingly popular tool to tackle some of these challenges. By thinking carefully about how the zoning code works and what overlay districts are doing, we can make sure that we do not create an entire new set of challenges tomorrow as we attempt to fix problems today. Luckily, there are many other tools in the City’s toolbox. Together, these strategies can create a framework where development quality is high, community members participate proactively in development decisions, regulations are clear and predictable, and the City is positioned to achieve its long term goals.