Basically it is “Let’s make a deal” zoning.

Mike,
Your observations are on target. The Land Development Code (LDC) is generally a sound document. It probably does need some minor updating, which hopefully the Council can address in the coming year.
Recent problems lie not with inadequacies with the LDC, rather with the failure to use the LDC in permitting development. Over the last decade, the City has employed a legal land use strategy called Planned Unit Development (PUD) or Planned Commercial Development (PCD). This designation permits community development staff to directly negotiate a Master Development Agreement (MDA) with the developer and bypass limitations imposed by the LDC. Basically it is “Let’s make a deal” zoning.
Most development over the last several years has occurred under this far more “negotiable” approach for obvious reasons. Interestingly, if one reviews the language of the PCD or PUD in our codes, one will find that the negotiated outcomes frequently even ignored the minimums and maximums specified in the enabling legislation.
As a result, Port Orange development is a hodgepodge of different agreements. The danger of course is that it opens the City to charges of being arbitrary and capricious. It also, as you experienced, allows development to proceed without the well thought out safeguards for surrounding property owners provided by the LDC.
The Property Owner’s Bill of Rights is an attempt to provide effected property owners in the case of a proposed planned used or commercial development, or for proposed land use zoning changes to be notified of what is being proposed, and to provide a mechanism for effected property owners to provide input into the decision making earlier enough in the process before positions and plans harden.
The Property Owner’s Bill of Rights will not be effective without the willingness of City’s staff to abide by the ordinances under which they operate. All I can do is to continue to pressure the City Manager to hold staff accountable. As you are well aware, the City Manager generally marches to a different drummer.
In the coming months/year, we all need to work for the enactment of the Property Owner’s Bill of Rights, the establishment of reasonable limitations on PUD and PCDs, and updating our land use codes to be consistent with our land use plan.
Bob Ford
 

Hello Bob Ford,
When the City Council voted 5-0 last Tuesday night to approve the Atlantic Marine PCD I think I felt a collective sigh of relief go out from a lot of people.  I was one of them.  From the time I wrote my first letter to the City of Port Orange on the matter, until Tuesday’s vote, 105 days had elapsed.  Some of our neighbors have been involved in the often contentious dispute for even longer than that.  (How time flies when you’re having fun!)  While Dianne and I, as members of the Ruth St/Powers Av neighborhood, have always argued the neighborhood point of view, at times I thought I’d much rather argue the opposite.
Politically and philosophically the viewpoint of the developers is much closer to my own.  After all, if I buy a piece of property and the property has a number of trees on it, both the property and the trees are mine.  If it serves my interests to cut down the trees and make toothpicks out of them I should be allowed to make toothpicks.  If I find it profitable to put a creosote plant on my property and turn the trees into railroad ties then I should be allowed to construct a creosote plant.  You, however, as a neighboring property owner may argue that you have a right to enjoy and profit from the use of your own property without having to deal with the sights, sounds, and smells associated with mine.  My first inclination is to tell you to quit your mealy-mouthed complaining, build a wall, plant some trees and insulate your house so you can have some peace and quiet, but don’t bother me!
Fortunately, the City of Port Orange has a Land Development Code to protect guys like you from guys like me.  Since Dianne and I first started getting into the LDC in depth I have been continually impressed by what a comprehensive and thorough document it is.  Page after page is devoted to protecting the rights of property owners when they come into conflict with those of other property owners and doing so in an even-handed manner.  If protecting the rights of the people is the most basic function of government (some would argue it is the only legitimate function) and the LDC seems a good example of laws designed to do this, what caused the ball to go up over the Atlantic Marine PCD?
The answer to this question is the reason I’m writing you–my Councilman–Bob Ford.  I don’t think blame for the Atlantic Marine conflict lies with the laws themselves.  The LDC already has within it provisions for dealing with each of the problems we encountered in one form or another.  Nor do I think the blame lies with the people on either side of the conflict.  The developer, after all, was only doing what developers do and so were members of the neighborhood.  Responsibility for this one rests squarely on the shoulders of the City of Port Orange.  Our city, through its blatant pro-development stance in selective enforcement of its own codes almost made a joke of the whole process.
I’m not even sure the bias was intentional (at least in the early going).   As you have pointed out in City Council meetings “the culture of the organization” is such that things continue to be done the way they have always been done and they have been done pro-development for so long that it’s become a reflex.  The developers, along with their lawyers, engineers, contractors, etc are usually well-known to City staff and it’s not surprising that they become thought of as friends or at least members of the same team.  The problem arose in our case when we found out the umpires were on the opposing team.
Perhaps your proposed “Property Owners Bill of Rights” can make a difference–perhaps not.  Since our “culture of government” says that whenever government fails we fix it with more government, your Bill of Rights could easily become just another law that our City chooses to enforce, or not, at its discretion.  There has to be a process for holding the City accountable.  One of the most frustrating aspects of our neighborhood conflict with Atlantic Marine was the lack of a clear-cut procedure for addressing grievances.  I urge you to ensure such a grievance process exists in your Bill of Rights.  Without it, the City simply writes, interprets and enforces its own laws within a closed system and one has to go outside that system to get relief.  Unfortunately that usually means either civil court or the court of public opinion–expensive, unreliable or both.  I also urge you to inform those property owners with legal standing of any development projects in their area at the earliest possible time, keeping in mind that being informed is worthless without also being involved.  (If Poland had been better informed of Germany’s intentions in 1939 it would not have affected the end result at all.)
Some cities have provisions in zoning change cases whereby adjoining property owners can block a proposed zoning change if more than a certain percentage (say 20%) disagree with that change.  This is in stark contrast to what we encountered in Port Orange.  We were constantly told that actions taken by our City were for the good of the entire community and that those who understood the big picture should be trusted to make decisions for us less qualified folk.  I lost track of the number of times that staff and various board members asked us in public “didn’t you know that it was commercial property behind you?”  Never once did I hear anyone ask the developer “didn’t you know there was a residential neighborhood back there?”
In closing let me thank you for what you are trying to do and echo some of the sentiments expressed at the last City Council meeting when Dennis Kennedy announced that he would not run for reelection.  I have met a lot of civil, decent and competent people over the last 105 days in my dealings with the City of Port Orange; but, while the qualities of civility, decency and competence are admirable, they shouldn’t be confused with results.  I want my government to protect my rights and get out of my wallet not give me a warm fuzzy feeling while spending my money.
Best regards,
Mike Gardner

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