Currently, the City land development regulations (“LDRs”) provide that certain high-density, purely residential zoning designations are consistent with the aforementioned mixed-use future land use categories. The City’s Comprehensive Plan allows a developer to calculate density either by using one of two calculations: units per acre or permissible floor area ratio (FAR), which is the ratio of the building area compared to the size of the land on which the building is being constructed. The FAR calculation generally results in a much greater number of units.

A City presentation at the February 4, 2021 City Council meeting showed the implications of permitting calculation of density based on FAR by providing an example. The example indicated that, in the UMU-60 category, the maximum permissible density is up to 60 units per acre. The maximum permissible FAR is 2.5. Assuming a developer owns 1 acre of land (43,560 SF), maximum density based on units per acre is 60 residences. Maximum density based on FAR would be 109 residences (1,000 SF is the average size per unit). Thus, the FAR density is much greater.

The City’s proposed comprehensive plan amendment would eliminate the option to calculate density using FAR for developments that only propose to construct residences. Because a comprehensive plan amendment will take approximately seven months to adopt, the City also proposes a moratorium on all rezoning applications for properties within the three land use categories (UMU-60, CC-35, and CMU-35) that seek to calculate residential densities on single-use, residential developments using FAR.

The moratorium was presented for consideration on first reading (there has to be two readings for approval) on May 6, 2021. The City Council voted to continue the agenda item until May 20, when the proposed moratorium would be presented again with one significant change: it would exclude properties within walking distance (¼ mile) of the transit emphasis corridors in the City Comprehensive Plan.

While the City’s intentions in attempting to address long-standing complaints of its residents may be noble, both developers and the City should be questioning whether the proposed regulations will result in a taking or a compensable claim under the Bert Harris Act.

Developers should be concerned because the time within which a property rights claims must be asserted is limited. Additionally, recent proposed amendments to the Bert Harris Act may impact who may bring a claim and when the claim may be brought.

The City should be concerned because there currently are a total of 851 acres of land that will be impacted by the moratorium and the proposed comprehensive plan amendment, which can result in a significant number of claims. The City should evaluate its exposure and how to limit its exposure in advance of opening a potential flood gate for claims.