More legal problems with Recode?

More legal problems with Recode?

By Steve Hunley

Recode Round 2 was held on Thursday, May 30 and it exceeded the six and a half hours of Recode Round 1 on May 14 with a marathon nine and a half hour comedy where city council tried to fix over fifty errors in Recode. It was another very long session of” may, shall, and will” legal verbiage corrections in the two and a half year old effort to change all zoning for the City of Knoxville by the process known as Recode Knoxville. How many more errors are left? City council and the mayor declared Recode was almost fixed at the end of the meeting. Yet the Recode Draft 5 Map is not available, so all that work was done on Recode Draft 5 text only.

City council and the mayor were stung last week on Tuesday when two local newspapers including this one showed how city council had tried to hide Recode from the public with the December 2018 Ordinance O-187-2018 that stated that only an advertisement in a paper of record was needed to inform property owners of the 425 page zoning overhaul for all Knoxville property. Even though city council later instructed the planning commission to send out a mailing on Recode to all 50,000 property owners it is estimated that less than five percent of Knoxville property owners know what Recode is today. The main reason for this is that the mailing on Recode was so poorly worded that it conveyed very little information about what Recode is. Responsible government is about transparency. There is little transparency here.

At the meeting city council bent over backwards to seek forgiveness by offering free coffee and pizza to everyone in the audience. Approximately seventy-five citizens attended the meeting but many left after the mayor stated there would be no vote on Recode that evening.

It was ironic what city council focused the most time on. A great deal of time was spent on kennels for dogs and maybe cats, how many people could work in a home office, how many cars could be at a home. The discussion of property people’s property rights was not so lengthy. Michael Stinson of Holston Hills asked a question which caused discomfort to city council, the mayor, and the city law department. Stinson asked, “Will residences and businesses have protection from Recode if their property is zoned into a nonconforming use?”

While this was a simple question it created an intense discussion with conflicting responses from the city law department, council, and the mayor. Stinson asked where the Grandfather Clause was in Recode. Council member Lauren Rider said, “Grandfather is not a legal term, it is a layman’s term.” Yet “Grandfather” is cited 14 times in Tennessee Code Annotated but has no citing with reference to zoning. Knoxville City Attorney Christina Magrans-Tillery spoke of state law that pertained to Recode and said, “What we have done is use our local terminology to make it more user friendly and readable.”

Oh really?

Council member Marshall Stair read what he thought would shut down the Grandfather discussion with Recode Draft 5 Section 17.1 paragraph two:

“A nonconforming building, structure or use of land lawfully existing at the time of the adoption or amendment of this ordinance may be continued and maintained as provided in this article; provided, however, that nothing herein may be construed to authorize the continuation of any illegal or nonconforming use which was illegal prior to the adoption of this ordinance.”

Mr. Stair claimed that was the protection people needed. That wording is more user friendly and readable? That is written in the negative. Was it done on purpose to make it more difficult to understand?

As an attorney, Mr. Stair failed to notice that this paragraph was not written clearly. It should have been written like this:

“A lawful prior non-conforming building, structure or use of land existing at the time of the adoption or amendment of this ordinance may be continued and maintained.”

It took me five minutes on the internet to find that. I am not an attorney, but I can read. So why after two and a half years was this critical property rights issue written so poorly in Draft 5 of Recode? It is often said; never attribute to malice what can be attributed to incompetence.

To be fair to council member Marshall Stair, he soon told council even he was confused by Sections 17.1 and 17.2 after there was more discussion and Mr. Stair made a motion that 17.1 and 17.2  be revised by the planning commission. Mayor Rogero said, “We don’t need a vote on that…okay…let’s have a motion that we come up with the appropriate language” and it passed unanimously. Is this circus what you what to determine your future property rights?

This is what you get when the Knoxville Planning commission arrogantly tries to re-write sixty plus years of zoning case law in two and half years and then passes on an incomplete flawed zoning product to the city council. None of those on council have training or experience in creating zoning law. Not a single person on city council has a degree in Urban Planning, Architecture, or Civil Engineering. Yet they feel they have the right to change the law that controls the property rights of every single person in Knoxville.

After debating briefly with Mr. Stinson, Mayor Rogero said, “We’re all learning a lot in this process.” The city and county taxpayers pay over six million dollars a year to Knoxville-Knox County Planning to do this. So why are council and the mayor doing the work of the planning commission? Especially since they have no idea what they are doing?

There is no reason for Recode.

We already have two of the supposedly brilliant Mixed Use apartments in Knoxville and they were done without Recode. The first is the Evolve apartments at 1913 Cumberland Avenue. The second is Crozier building at the corner of Central and Willow Avenues. Both of these Mixed Use apartments have reduced parking requirements just like in the Recode plan. Not that that is a good thing or a smart thing.

In the past two weeks two more supposedly magnificent Mixed Use apartments have been considered and approved by city council. City council unanimously approved two payment-in-lieu-of-tax (PILOT) agreements for a 237-unit Mixed Use apartment complex and an Airbnb-styled boutique hotel next door on Henley Street. Not just one PILOT, it was so good it got two. Seriously, it had to have two PILOTS? When has that ever happened in the city of Knoxville? More importantly, why did it happen?

The Kerns Bakery Mixed Use redevelopment will break ground in July. Isn’t it something all of these new Mixed Use apartments being done without Recode? Makes a reasonable person wonder why Recode is worth all this risk, headache, and trouble?

If you are a city of Knoxville resident or a person who works in the city you need to ask yourself an important question. Is this the representation you deserve? Recode serves no purpose other than to erode the property rights of people in Knoxville. Demand from your elected city council members that it be voted down. Protect your property rights.

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