Mack ranch given master plan amendment
Douglas County Planning Commissioner Mike Jarrett shook his head as he walked away from Tueday’s meeting.
“I hope what we did today doesn’t open the door to others trying to avoid transferring development rights when developing properties, but I’m kind of afraid it will,” Jarrett said.
Jarrett was concerned because the master plan procedure designed to assign urban zoning to properties in areas where growth is desirable had been circumvented by a Minden rancher/developer who had steadfastly refused to buy in to the process.
The TDR process was tailored to protect the development value of land and an owner’s rights to develop it, while helping preserve open space in the county.
The process allows land owners to move zoned residential densities from property to property, and particularly onto properties where development is considered desirable – the “receiving” areas adjoining the towns or other developed areas. It also allows for the sale of those rights to others, helping to avoid what land-use planners call “windfall-wipeout zoning.”
Jarrett’s concerns stemmed from the planning commission’s tacit acceptance of the Douglas County Board of Commissioners’ approval of Mackland developer Renee Mack’s request for urban zoning to be be assigned to her ranch property adjacent to the town of Minden.
When the 1996 master plan was constructed, Mack’s property had been identified as a receiving area – suitable for urban development. Mack fought the classification, arguing that her family’s estate planning would be hampered by the zoning because no monetary value had been established for TDRs. Her request – that the land’s prior zoning of mostly one dwelling per acre be retained – was acceded to.
Earlier this spring, Mack had approached county board of commissioners and requested a master plan amendment that would rezone her property for urban lots of 8,000- to 12,000-square-feet, densities of about three to five homes per acre.
The board forwarded the request to the planning commission which heard it and denied it March 10. The commissioners agreed at that time with the county planning staff’s assessment of master plan requirements for zoning changes. Planning commissioners told Mack she needed to go through the process the master plan had set in place, and move development rights onto the property in order to increase its residential density.
Mack then took the request back to the county commission, which granted her the change and did not require her to transfer development rights from other properties.
Because state and county codes require a report when two boards disagree on master plan elements, the board then sent the matter back to the planning commission.
At that point, the planning commission had three choices:
It could concur with the board’s decision and grant Mack a master plan amendment and the zone changes.
It could again deny the request and forward a report on its dissenting vote. A choice which, Mack’s attorney Mark Amodei inferred to those present, could result in litigation.
Or, the commission could take no action, leaving the board’s decision unchallenged.
Planning Commissioner Susan Southwick argued that the commission should again vote to support the master plan’s processes.
“At some point, we’ll run awry of the county commission,” Southwick said. “It’s important we set up a criteria for how residential density will be added… We have that mechanism set up in the master plan.”
Planning Commissioner Valida McMichael contended the mechanism for receiving areas had been done away with for Mack’s property, making the situation unique.
McMichael called for a “consistency rezoning” because of the land’s location in an urban service area. The term, when usually applied, refers to returning original zoning to property that has been changed or stripped away.
The commission voted 5-2 to take no action, with Jarrett and Southwick casting the dissenting votes.
The county’s legal representative at the meeting, Deputy District Attorney Tom Perkins, said Friday it was impossible to generalize what could happen in the future.
“The TDR program is still in the code and still a part of the master plan,” Perkins said. “The board and the planning commission decide to give effect to it. They can’t be arbitrary, but they have a tremendous amount of discretion in terms of amending the master plan, which is a policy plan and not a law.”
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