Wednesday, November 29, 2006

From our Nov. 20 print issue: Encanto historic designation controversy doesn't deter Council

Council OKs Encanto HD extension
Overrules citizen planners, to match National Historic Register boundary for area

By David Tell, Messenger Editor
© 2006 Quicksilver Publishing Group. All rights reserved.

Following two seeming setbacks, the proposed historic zoning overlay for an additional area of the Encanto-Palmcroft neighborhood was approved by City Council on Nov. 1.
The proposal affected a set of vintage “garden apartments” at 1302 W. McDowell as well as current and former single family homes between 11th and 13th avenues along the north side of McDowell Road. It was voted down by the Encanto Village Planning Committee and city Planning Commission, which are citizens advisory bodies whose decisions are not binding on Council.
The proposal has been controversial in and beyond the neighborhood, largely due to a proposed upscale condo project that would be built in place of the apartments, which had been a crime and blight nuisance to adjacent residents, requiring regular police attention.
The overlay, which would extend the city’s protective historic zoning to match that of the National Register of Historic Places’ more honorific boundaries for the district, imposes a one-year moratorium on any demolition and requires an approved plan for any replacement structures, in order to harmonize development with the adjacent historic homes. Adjacent residents also included in the overlay opposed it for fear that the problem apartment property would continue to languish.
Opponents have also objected to the unusual means by which the overlay was initiated—at the suggestion of Council’s Housing Neighborhoods and Historic Preservation subcommittee last spring and then by the full Council—rather than originating with the Historic Preservation Commission. However, city HP Officer Barbara Stocklin has pointed out that ordinance allows for that route of initiation, as well as other paths for an overlay proposal. In addition, while the commission has a policy of requiring 75 percent owner support to initiate an overlay, it is not bound by that policy, nor is Council.
Nonetheless, apartments property owner Scott Haskins, a California developer and art conservator, said the overlay approval is “disappointing,” and that he is evaluating all legal options for overturning Council’s decision.
“City Council’s basis for evaluating the situation comes from a completely different direction than the village planning committee or the Planning Commission,” Haskins said. “The Encanto Village Planning Committee looks at the benefits to the village and at issues relative to property rights. The Planning Commission looks at property rights and development in the city and considers also legal issues that they feel are important to planning issues. City Council looks at it from a political point of view: ‘Who needs what and who is going to vote with whom?’ Council refused to recognize the validity of the opinions of those other two bodies,” Haskins said. “And the Council completely ignored the preponderance of opinion of the neighborhood. The neighborhood was overwhelmingly opposed.
“Council ignored all that,” Haskins said. “Their issue is heightened with the passing of Prop 207. 207 underlines the issue in the neighborhood. According to City Council, it is handing over my project to HP. HP doesn’t have any development guidelines, only an arbitrary loosey-goosey guidance they would like to attempt to impose or oversee the project with. If they listened to the minority neighborhood activists, the property is going to be only two stories tall and a lot less units. That’s half the value. Council said ‘We don’t care about the R-5 zoning and the property rights, we’re going to rezone it.’ Or attempt to.”
Haskins’ plans are for four-story structures.
Proposition 207 is a citizens initiative passed in Arizona, as in several other states, a couple weeks ago, promulgated by property rights activists in the wake of the Supreme Court’s controversial “Kelo” eminent domain decision last year. It allows people to sue governments for land use actions they believe have diminished their property’s value.
Whether Haskins could sue under the new law, given that his property was rezoned before Prop. 207 was passed by voters, is not clear. Larry Felix, an attorney in the city’s Law Department, said for a law to be able to be applied retroactively, it usually has to explicitly state that is is intended to so apply.
“My project should be the poster boy for 207,” Haskins said. “There’s a question about that [its applicability to his case]. The city vote doesn’t go into effect for 30 days. Of course I’m having my attorney look into that. City Council has to go back over their resolutions and vote them into play.”
However, Haskins’ timetable could be confounded by the fact that the clock also doesn’t start ticking on Prop. 207’s effective date until after the public vote has been “canvassed” and then certified by the governor, a process that also tends to take several weeks.
Haskins said there could be a whole host of legal issues giving him opportunity to overturn the rezoning. As an example, “We believe the city submitted the whole proposal improperly or illegally,” he said. “Statutes say for City Council to put into motion a historic overlay the way they did, it requires the signature of at least one property owner—which they did not get. There are three or four or five [other possible legal] points.”
In addition, Haskins, who has retained not only local attorneys on his behalf, is also working with Choice Zoning Group, a firm specializing in community relations related to land use issues. The Midtown Messenger has been told it is formerly owned by District 5 Councilman Claude Mattox, who sold it to Robert Rakowski. Whether or not connected to Choice Zoning’s efforts, a column by Laurie Roberts in the Arizona Republic in September characterized apartments as “garbage,” not historic; and a local radio talk show reportedly used the case recently as a take-off for a wider harangue about property rights. Mattox and District 8 Councilman Mike Johnson were the two “no” votes on the overlay, vs. five in favor. District 2 Councilwoman Peggy Neely was off the dais.
Haskins feels his case touches a public nerve more broadly in Phoenix.
“I’m in the process of initiating a referendum,” he said. “We believe City Council has acted improperly and not in the best interest of property rights. We believe this is an issue the city [populace] would like to know more about and vote on.”
Haskins seems to have in mind a referendum effort seeking to overturn Council’s decision in a citywide election, similar to when Biltmore area neighborhood groups and others mounted a challenge to Council’s raising the height limitations for the area of 24th Street and Camelback to accommodate developers’ plans for the area.
Haskins was asked about longtime Fairview Place resident Marge McCue’s comments in the October Midtown Messenger that his apartment plans seem “pie-in-the-sky” and his projected value per square foot seems unrealistic. Her remarks were based on a presentation of his plans made at Encanto Clubhouse at Encanto Park in September.
“She’s not a developer,” he retorted. “If you’ve got comments from other developers and people who invest their money in the improvement of a city, I’ll be glad to listen. I can get opinions all day from people who don’t know squat.”
Asked whether it is specially advantageous for him to be developing property in Arizona, where Prop 207 has passed, rather than in California, where a similar initiative failed, Haskins replied, “I don’t know if there’s any benefit [to being a California developer investing in Arizona], but the ‘Socialist Republic of California’ would of course follow that path. California sides with the rights of the renters. They pass all these social programs, add all the taxes to the businesses. There’s a completely different social atmosphere in California.”
Encanto-Palmcroft resident G.G. George heads the Encanto Citizens Association, through which she has fought for the neighborhood’s historic status and other issues for decades. Critics attribute the initiation and passage of the overlay at least partly to her connection with District 7 Councilman Doug Lingner, who represents the area, as well as most of the areas containing the city’s residential historic districts. Of the latest outcome, “I’m very pleased that the Council saw the precedent, the policy that the city has established and of course the value to Palmcroft of those historic apartments,” George said. “The Encanto Citizens Association’s official position is that the mayor and Council acted correctly to align our Phoenix Property Registry boundaries with the National Register boundaries.”
The apartments in the overlay area have been identified by the HP Office as historically significant, as “first-generation buildings on land that was part of the original Palmcroft plat.” Other, similar “garden apartment” complexes have been preserved for reuse, and—in Scottsdale, for instance—are specifically being documented for designation as a significant historic style of their era.
Haskins’ pending hardship appeal of the previous denial of a demolition permit for the apartments has been canceled, as moot under the rezoning. “If he wants to file demolition economic hardship request, he will have to start over again,” Stocklin said. “There’s a separate process for filing under the ordinance, given that the HP zoning is now no longer pending but is permanent.” Haskins, asked whether he would pursue that route parallel to his other efforts, said he hadn’t decided.
In addition “There is the possibility of the property owners filing a ‘regulatory takings’ claim, within 30 days of when City Council approved the minutes from the meeting when the action was taken,” Stocklin said. “We hear that they’re planning on filing one.” She said there was a regulatory takings claim filed a few years ago in a Garfield neighborhood case. It is unclear whether that is one of the avenues Haskins was referring to among his legal options, or an additional one.
According to attorney Felix, a regulatory takings case has long been a possible legal remedy, but he said success in bringing a claim tends to require a showing that a regulatory action reduced a property’s value to zero, or at least to a merely nominal value.

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