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March 20 2020

COVID-19 Our Update For Clients

To all clients, consultants and friends:

We know this is a difficult time for many businesses and families.
Lazarus & Silvyn is open for business, ready to serve and advise.

Our primary commitment is to safely continue to be available and responsive to our clients.

We are taking this issue seriously and are taking precautions to protect our staff and employees. These precautions include:

offering conference call options instead of in-person meetings, and
continuing to have all attorneys and staff available via phone and email.

We will maintain this commitment to serve you as the required containment measures and closures continue throughout the State.

We know these are uncertain times, and we want to offer encouragement and stability as we can. We are also working with other business leaders in the Phoenix and Tucson markets to understand resources that will be available to businesses as this unfolds and as this very critical time resolves.

Lazarus & Silvyn stands ready to assist and advise.

Please feel free to call us with any questions or concerns.

We hope you and your family stay safe and healthy!

January 3 2020

Top predictions for 2020 land use law in Arizona

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The New Year and decade ahead hold challenges and opportunities for our clients and partners.

Just as in years past, the combination of legal expertise, political acumen and strategic insight will be essential in guiding successful projects from start to finish.

Land use regulations, zoning restrictions, entitlements and permitting in Arizona are going to remain complex, especially as it relates to achieving sustainable, environmentally responsible developments.

What follows are our insights on what to anticipate in land use in 2020.

#1 Growth in specific markets will not slow down in the foreseeable future.

Some of the significant areas of new development to take note of in 2020 will be healthcare and hospitals; assisted-living and sober-living homes; infill multi-family (especially apartments); education/student housing; golf course preservation and redevelopment; and medical marijuana and possible recreational marijuana.

#2 Substantial new employment opportunities in Arizona will greatly increase the need for single-family residential and associated neighborhood commercial developments.

2020 will continue to see substantial new employment opportunities. Consequently, there will be a need for new single-family residential and associated commercial development in areas where major employers will locate. Adequate water supply and new infrastructure improvements will be issues affecting the success of zoning in these areas. Simultaneously, the demand for these uses will affect infill developments because of the limitation of land and the effects of new developments on surrounding neighborhoods in the inner city. Expect a continuation of entitlement issues related to growth such as traffic, height, and view corridors, density and noise, and air quality.

#3 There will be a greater focus on infill as a sustainable form of development.

Infill development requires extensive work with surrounding neighborhoods and determining the win-win path forward for adjacent neighbors and the new project. Constructing new multi-family housing within existing communities will be critical to maintaining housing affordability. Educating the public on the importance of multi-family housing and the desire of newer generations to rent and live in multi-family communities will be key to successful zoning entitlements.

There will be a heightening of community input on many entitlements as it affects development in surrounding communities.

While cities and towns will want to take advantage of the economic opportunities in 2020, there will be more pressure from the public not to affect what they perceive to be their current lifestyle. Therefore, anticipate continued struggles within the legislative bodies that, on the one hand, promote jobs, increase tax dollars, pay for new much-needed infrastructure and, on the other hand, succumb to pressures of existing and future anti-development factions.

#4 There will be a greater need to educate the public on new projects before discussions become inaccurately framed.

As various list-serves and other modes of communications for neighborhoods have increased, one of the biggest challenges will be educating the public on new projects with facts before inaccurate hyperbole frames the discussion. Elected officials, design review boards and government staff will rely on the development community to ensure effective communication and appropriate framing of issues.

Because NextDoor and similar apps do not lend themselves to people trying to understand all sides of an issue, the development community will need to anticipate inaccurate information and work to get the facts of a case into the public as part of the decision-making process.

# 5 Developers will be asked to bear the costs for increased density and height through zoning requirements, stipulations and development exactions.

Developers will be asked to bear the costs related to traffic accommodations and assuring enough water, sewer and energy to their properties. On the other hand, cities will need to address mass transit, including light rail and buses; parks and recreational opportunities; alternative people movers such as scooters and bicycles; additional heights to accommodate appropriate densities; and pedestrian-friendly environments.

#6 The cost of upsizing infrastructure to assure sustainable communities will need to be addressed.

Most of the infrastructure like streets, water, sewers have been constructed based on growth models that did not contemplate the level of densification now being proposed to ensure we create sustainable communities. Generally, jurisdictions permit “hooking up” to the current system as long as there is capacity. We need to develop a new approach so that the first project to be proposed once capacity is utilized is not saddled with the costs of upgrades. If this problem is not addressed soon, then infill will come to a halt after the last project is completed using the existing capacity.

January 3 2020

Lazarus, Silvyn & Bangs, P.C. becomes Lazarus & Silvyn, P.C.

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Lazarus, Silvyn & Bangs, P.C. is beginning the new year as Lazarus & Silvyn, P.C. to reflect the leadership of partners Larry Lazarus and Keri Silvyn. Both are respected Arizona land use and zoning law attorneys with offices in Phoenix and Tucson.

Founded by Larry Lazarus and Keri Silvyn in 2012, the firm assists communities and developers in growing responsibly. The firm specializes in helping clients with navigating the complexities of zoning, land use, entitlement and development agreements in Arizona. They also provide land use planning services and legal expertise in commercial real estate transactions and financing.

Lazarus began his career in Arizona in the 1970s and was instrumental in helping create the City of Phoenix’s first and most comprehensive set of land use policies within the Urban Form Directions’ Village Concept Plan. For the past 13 years Mr. Lazarus has been recognized as a Best Lawyer in America. Amongst many of his accomplishments, he was selected for the Center City Starr Award in 2017 for his continued leadership in development of the downtown in the City of Phoenix. Throughout his career, Lazarus has remained devoted to facilitating appropriate and well-planned developments large and small.

Silvyn has been practicing land use law in Southern Arizona for more than 20 years with a focus on sustainable, responsible and economically feasible growth. In 2010, she spearheaded a landmark initiative called “Imagine Greater Tucson” to help Pima County leaders and residents define and achieve values-based growth that connects land use and transportation planning. In 2013, she was named Tucson’s Woman of the Year, followed by Tucson’s Land Use and Zoning Law Lawyer of the Year in 2017. Since 2007, Silvyn has also been recognized as a Best Lawyer in America.

Lazarus & Silvyn, PC is a land use law firm helping clients create responsible development throughout Arizona with a primary focus on Phoenix and Tucson metropolitan areas. The firm has been a driving force in creating appropriate, well-planned development including downtown high-rise office buildings, luxury condominiums and work-force housing, urban in-fill redevelopment, planned residential communities, student housing, light industrial buildings, community centers, resorts, golf courses, recreational facilities and Native American community properties. The firm represents both public- and private-sector clients in numerous sectors, including education, energy, healthcare, historic preservation, life sciences, mining and utilities.

December 26 2019

New Rezoning Protest Law: Game-Changer for Controversial Rezonings

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By: Keri Silvyn, Esq.

Let’s pretend that you own (or are under contract to purchase) a piece of property. You consult your local zoning attorney to determine whether you can use the property as you desire. You are told that a rezoning is required. You have the time, desire and drive to get it done (of course with the help of that zoning attorney!). The goal is to work with the surrounding property owners, jurisdictional staff and elected officials to find common ground, mitigate impacts and get the rezoning approved. What if common ground is not completely achievable and the rezoning becomes controversial – especially for the immediate surrounding neighbors? Knowing the risks and consequences of a rezoning protest that can trigger a supermajority vote of the elected body is incredibly important.

After decades of the State legislature not being interested in zoning protest laws, we now have two legislative sessions in a row with bills focusing on zoning protest requirements within cities and towns. The 2017 legislative session resulted in a major change to the law when Governor Ducey signed House Bill 2116 into law, becoming effective on August 9, 2017. And in 2018, additional amendments were offered to clarify the calculation for protest. Although the 2018 amendments were not passed, it appears there may be more attempts to clarify this calculation in upcoming legislative sessions.

The Law Prior to August 9, 2017

Before explaining the 2017 changes, understanding the law as it existed before August 2017 is important. In cities/towns, if 20 percent of the property owners within 150-feet on any one side of the rezoning property protested in writing, then ¾ of the elected body, or supermajority, had to vote for the rezoning. The supermajority vote for a seven-member city/town council required six out of seven members. A nine-member city/town council required seven out of nine members. In addition, to calculate the protest votes for a property that abutted a public street/right-of-way, the 150-foot protest area did not include the street. This allowed the protest area to extend beyond 150-feet of the rezoning property because the area measurement began on the other side of the street, opposite the rezoning area. Cities/towns had difficulty administering this law, particularly when the rezoning property had an odd shape that made it hard to determine what a “side” is for purposes of the calculation.

The Law Today

So, what did HB 2116 change?

20 percent calculation based on all sides of the rezoning property.
Under the new law, a supermajority vote is triggered if 20 percent of the property by area and number of lots, tracts and condo units within the “Zoning Area” files a written protest. The Zoning Area includes both the proposed rezoning area and the area within 150 feet of the entire boundary of the rezoning area, including rights-of-way. The 20 percent is no longer based on each side, and now must include 20 percent of both the land area AND the number of lots, tracts and condo units within the Zoning Area. With these changes, triggering a supermajority vote has now become more difficult for adjacent property owners.

Public rights-of-way are now part of the 150-foot calculation.
The old law excluded public rights-of-way from the 150-foot protest area. So, if there was a 120-foot public street adjacent to the rezoning property, the old law ignored the public street and began the 150-ft measurement on the OTHER SIDE of the street right-of-way. The new law includes the street within the 150-foot measurement area. In the same scenario as above, now the 150-foot protest area covers the 120-foot street and the properties/area extending 30 feet beyond the public street. For properties across the street from a proposed rezoning, the new law generally makes it more difficult to reach the 20 percent protest

Three-Quarter vote on a 7-member council is now 5.
The new law now states that for purposes of calculating the supermajority (3/4) vote, “the vote shall be rounded to the nearest whole number.” For those who must go to YouTube to learn math (especially when trying to help your kids with homework), here is a link to the YouTube video explaining what “rounding to the nearest whole number” means: https://www.youtube.com/watch?v=s7qzUt0wuDs.
Bottom line is that ¾ on a seven-member council is now five and not six. In the Tucson region, this modifies the supermajority vote count for all cities/towns in the region: City of Tucson, City of South Tucson, Town of Oro Valley, Town of Marana and Town of Sahuarita. In the Phoenix metro area most cities have a seven-member council, now requiring five votes for a supermajority. For those cities/towns with five or nine-member councils, the new law does not change the supermajority number, which is four and seven respectively. For example, the law does not impact Phoenix’s nine-member council, which still has a supermajority vote of seven members.

Many cities and towns have their own ordinances explaining how the supermajority/protest works in conformance with the old laws. Those cities/towns have or should be revising their zoning ordinances to reflect the new law. Because state law preempts local law on this issue, the new State law controls even if a jurisdiction has not revised its local ordinance.

It’s not over yet!

One concern about the new law already being voiced from citizens and some local jurisdictions is that the protest calculation includes BOTH the land within the rezoning area AND the 150-foot perimeter around the rezoning area. If the rezoning area is large enough (with or without right-of-way adjacent to the rezoning request area), then the surrounding neighbors could ostensibly never get to 20 percent to trigger the supermajority vote. SB-1014 was introduced in the 2018 session to address this issue by proposing language to require calculating the 20 percent one of two ways:
EITHER within the rezoning request area
OR within the 150-foot perimeter (but not both).

SB 1014 was not passed in 2018. However, expect another push in 2019 to revise this language.

Understanding the protest laws as part of an overall zoning strategy – especially for contentious cases – is critical!

With all of the changes in 2017, and a promised attempt in 2019 to further revise the protest laws, watching this law carefully along with the timing of your rezoning case in a city/town is important.

So, make sure you contact your local zoning attorney at Lazarus, Silvyn & Bangs, P.C. to understand the law and how it applies to your property!

December 25 2019

Supreme Court Victory for our Case: Pawn 1st, LLC, an Arizona Limited Liability Company vs The City of Phoenix, et al

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By Larry S. Lazarus, Esq.

We Won!!

The Supreme Court upheld the City of Phoenix Board of Adjustment variance that our firm successfully secured in 2010 on behalf of William Jachimek of Central Pawn.

Although the Supreme Court discussed several issues, including the distinction between an area and use variance, the issue of greatest significance to municipalities in the State of Arizona is how to determine whether a special circumstance is self-imposed by the applicant.

Facts of the case

Mr. Jachimek entered into a lease to locate a pawn shop on a parcel of Commercial C-3 zoned property at the southwest corner of McDowell Road and 32^nd Street in the City of Phoenix. This property had historically been used for various adult uses under a legal nonconforming use until the owner evicted their tenants and discontinued the adult use. C-3 zoning permits pawn shop uses provided the exterior walls are at least 500 feet from a residential district and the owner obtains a use permit from the zoning administrator. On behalf of Mr. Jachimek and the property owner, our firm applied for both a use permit from the zoning administrator and a variance from the 500-foot residential district separation since that criteria could not be met.

At the successful Board of Adjustment hearing, the following facts were important to establish special circumstances related to the property that were not self-imposed:

The unique nature of the discontinuance of the nonconforming use of the property;
The City of Phoenix had completed an eminent domain action that resulted in the property size being reduced to only 12,000 square feet which was dissimilar to other C-3 properties in the area;
The 12,000 square-foot size was smaller than any of the twelve surrounding C-3 zoned corner parcels.
The eminent domain action eliminated the frontage area around the building, resulting in its direct abutment of a public sidewalk.
The eminent domain action also restricted parking availability for the property.

Thus, the Board of Adjustment reasoned that the circumstances were “not created by the owner or applicant,” and granted the variance. Variances cannot be granted if the circumstances are “self-imposed” by the property owner.

Issue

A competing pawn shop appealed the City Board of Adjustments decision arguing that the decision by Mr. Jachimek to enter into a lease for this use on a property where he knew a variance would be necessary was self-imposed and therefore any other special circumstances were not relevant to the analysis. The Court of Appeals agreed with the competing pawn shop owner. Fortunately, the Supreme Court disagreed with the Court of Appeals.

The Decision

The Supreme Court reasoned that “Special circumstances are not ‘self-imposed’ when the owner wants to use the property in a way permitted to other similarly situated properties, but cannot do so because of externally imposed circumstances like those involved here. Although it is fair to say that Jachimek voluntarily acquired the Property subject to the special circumstances, he certainly did not create them.[1]”

In addition, the court added: “The court of appeals’ rule would impose an undue restraint on the sale of property, as anyone purchasing a property with knowledge of the restriction would have no ability to obtain an area variance. This approach would give purchasers fewer property rights than sellers and, thus, would contravene our case law and longstanding legal tradition in favor of alienation. Accordingly, an applicant or owner’s selection of a property, even with knowledge that an area variance is required for an intended use allowed on other similarly zoned properties, does not itself constitute a self-imposed special circumstance precluding an area variance.1”

Conclusion

Many municipal and private practice land use lawyers were pleased with this decision. If the Court of Appeals decision had remained intact, it would make approving any variance incredibly difficult since almost all decisions to locate a use/business on a property involve the owner’s decision-making and the right to pursue entitlements. If the owner decision became the factor to create a self-imposed hardship no variance request could be successful. We thank the Arizona Supreme Court for this well-reasoned decision for both Mr. Jachimek and to sustain the Board of Adjustment variance process.

[1] Pawn 1^st, LLC vs City of Phoenix

December 24 2019

Tucson’s Sign Code Revision Project Moves Forward

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By: Rory Juneman, Esq.

The City of Tucson (“City”) recently adopted a major amendment to its Sign Code that took effect February 1, 2018. The amendment is the first significant and much-needed update to the Sign Code in decades. The final, adopted amendment was the culmination of a year-plus effort by the City’s Planning and Development Services Department (“PDSD”) and stakeholder engagement to revise the Sign Code. The business community was actively involved in this process and the changes reflect that involvement. Below is an explanation of why the City began this effort and some highlights of the changes.

The U.S. Supreme Court and sign regulations

This effort began as a response to the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. In Reed, the Court held that municipalities cannot impose “content-based” regulations on signage unless the regulation is narrowly tailored to further a compelling government interest (the most difficult standard of judicial review to meet). For the City, Reedmeant that the Sign Code’s content-based regulations – such as those for real estate and political signs – likely violated the First Amendment’s free-speech protections and needed to be removed.

In addition to the Reed issues, City staff and various stakeholders had become concerned that the Sign Code was overly complicated, outdated, inflexible and too prescriptive, leaving little room for creativity. To address all of these issues, Mayor and Council directed PDSD to update the Sign Code to both comply with Reed and simplify and modernize the City’s signage regulations. After a year of stakeholder meetings and public hearings before the Planning Commission and Citizens Sign Code Committee, the Mayor and Council unanimously adopted the Sign Code amendments on December 5, 2017.

Highlights of the Sign Code update

One of the main reasons to update the Sign Code was to simplify the regulation and provide flexibility for local businesses to design signage specific to a site or use. Below are highlights of some of those changes:

Master Sign Program (“MSP”): allows a development to propose a unified, site-specific sign package that can deviate from technical Sign Code provisions as long as the MSP meets certain standards. A proposed MSP will be reviewed by the newly created Sign Design Review Committee (“SDRC”) and approved by the PDSD Director. The MSP has the potential to help larger projects, such as retail centers and master-planned developments, which have unique site and signage needs.
Single Sign Design Option: allows design flexibility for one specific permanent sign without a variance. Sign design is reviewed by the SDRC and approved by the PDSD Director.
Business District Signage: the regulations for signage in commercial and office zones have been simplified and now provide consistent signage allotment based on street frontage length.
Premises Definition: the definition of premises has been expanded to allow for adjacent developments under separate development plans to be considered one premises for signage purposes (i.e., can share common signage).
Parapet Signs: signs placed on a parapet wall are allowed as a wall sign.

In addition to the substantive changes, the Sign Code is now considered a land-use regulation within the Unified Development Code as Chapter 7A rather than Chapter 3 of the City Code.

Lazarus, Silvyn & Bangs was involved throughout the entire amendment and stakeholder process. So, if you are working on any signage within the City of Tucson and need assistance navigating these new regulations, we look forward to assisting you!