Analysis: Duplexes allowed or not, a déjà different question for plan commission?

Should Bloomington’s plan commission recommend to the city council that duplexes still be disallowed in three specific zoning districts?

That’s the question that Bloomington’s plan commission has cued up on Monday, starting at 5:30 p.m.

The question was put forward by the city council’s representative to the plan commission, Susan Sandberg. It comes in the form of an amendment to an ordinance the plan commission is now hearing, that would modify the city’s existing unified development ordinance (UDO).

Public comment on the question was already heard, at Thursday’s special session of the plan commission.

So on Monday, the commission’s first decision on duplexes could be made in an hour or even less. But that will depend in part on whether plan commissioners have questions for planning staff, based on the public commentary they heard on Thursday.

Depending on how those first chips fall, the commission could also consider a different duplex question on Monday: Should the plan commission recommend to the city council that duplexes be permitted (i.e., allowed by right) in three specific zoning districts?

The city’s current unified development ordinance (UDO) does not allow duplexes in R1 (residential large lot), R2 (residential medium lot) and R3 (residential small lot). The new UDO’s disallowance of duplexes in R1, R2, and R3, was the outcome of a city council decision made in November 2019.

Monday’s question for the plan commission comes in the context of a 10-ordinance package proposed by the city’s planning staff, which would revise the citywide zoning map and the text of the UDO. A public outreach effort on the proposal was conducted in late 2020.

The planning staff’s proposal is for the plan commission to recommend a change for duplexes in R1, R2 and R3—from disallowed use to a conditional use.

The current legislative initiative was expected, because it comes in the context of a new UDO adopted by the city council in late 2019 and subsequently adopted by the plan commission in early 2020. One of the new districts defined in the revised UDO, the R4 (residential urban) district, does not yet exist on the citywide zone map. The expected timeframe for the follow-up work, which was thought out in pre-pandemic times, was spring and summer 2020.

In any case, it was expected that some kind of proposal would be brought forward to put R4 on the map. Also expected were some cleanup-type revisions to the text of the UDO. Some of those text change were expected to be scrivener’s errors. Others would be based on a need to clarify wording, based on the first several months of the staff’s experience trying to administer the new UDO.

Not necessarily expected to be on the table again quite so soon were the kind of substantive changes to the UDO that were fired in a crucible of community-wide debate in the fall of 2019.

The changes involve the “Allowed Use Table” in the UDO. For any use in a zoning district that’s described in the UDO, there are two basic possibilities: allowed or disallowed.  If a use is disallowed, then the corresponding cell in the table is blank.

If a use is allowed, then there are two other specific possibilities. One possibility is that the use is permitted—denoted with a “P” in a table cell. That’s the allowed use that is also sometimes called “by right.”

The other kind of allowed use is conditional—denoted with a “C” in a table cell. In order to put the land to a conditional use, it requires application to and approval by the board of zoning appeals (BZA).

The similarities between the specific questions to be decided on Monday and the questions considered by the plan commission and the city council in 2019 are worth reviewing.

In 2019, the plan commission was presented with a planning-staff-proposed UDO that showed a duplex as a conditional use in R1, R2 and R3. In September 2019, the plan commission debated and considered an amendment that would have changed the allowed use for duplexes in R1, R2, and R3—from conditional to permitted use. It failed 4–5.

In September 2019, the plan commission could have also considered an amendment that would have disallowed duplexes in R1, R2, and R3. Such an amendment had been drafted and prepared for consideration.

But from the deliberations on the failed amendment, it was clear that a recommendation simply to disallow duplexes, would likely not get the five votes it needed to pass. So that amendment did not get a plan commission vote. The city council eventually considered and approved a proposal to disallow plexes in R1, R2, and R3.

Even if the city council has the final say, the recommendation made to the city council by the plan commission will set the stage for the kind amendment the city council could consider.

Will city councilmembers be asked to vote yes on an amendment to change a duplex from a conditional use to a disallowed use? Or from a disallowed use to a conditional use? Or from a conditional use to a permitted use?

That’s why it’s worth reviewing what plan commissioners said in September 2019 about the amendment that failed 4–5. It’s basically the opposite of the first one that the plan commission will be deciding on Monday. But there are some differences.

The amendment considered by the plan commission in September 2019, which was labeled Amendment 4b, would have altered the allowed use table for R1, R2, and R3. A duplex would have been changed from a conditional use to a permitted use in all three districts: R1, R2, and R3.

But Amendment 4b would have also changed triplexes from a conditional use in R1 and R2 to a permitted use in those two districts. A fourplex would have been changed by Amendment 4b from a disallowed use in R3, to a conditional use in R3. Finally, Amendment 4b would have changed a fourplex from a conditional use in R4 to a permitted use in that district.

Of the nine current plan commissioners, six were serving in 2019. The three who are different are Israel Herrera (replacing Joe Hoffmann), Chris Cockerham (replacing Nick Kappas), and Andrew Cibor (replacing Neil Kopper).

What did the six have to say a year and a half ago, in September 2019, about the idea of making duplexes permitted uses? What does that mean for a likely outcome on Sandberg’s amendment, which changes duplexes from conditional use to a disallowed use in R1, R2 and R3?

Susan Sandberg. Susan Sandberg is the city council’s representative to the plan commission this year, as she was in 2019. That was a contested appointment this year, which was settled in favor of Sandberg over Isabel Piedmont-Smith on a 5–4 vote.

Sandberg said at last Thursday’s plan commission meeting that her proposal is being made on behalf of a group that has formed called “Go Farther Together.”

The purpose of the change, Sandberg said, is to “allow for a time-limited pause on the most controversial aspects of the city’s UDO proposal plexes and mapping of the R4 zoning district.” The idea, Sandberg said, is to “collect quality data, consider a variety of alternatives, and ensure meaningful community participation.”

Sandberg can, of course, be expected to support her own amendment. Even if it were not her amendment, Sandberg’s 2019 remarks during plan commission deliberations would point towards a yes vote on Monday.

On Sept. 5, 2019, in arguing against allowing plexes as a permitted use in R1, R2 and R3, Sandberg talked about a city council vote that was taken the previous day on a student-oriented housing development on North Walnut. The project is currently being built at the site of the former Motel 6.

Sandberg said, “We’re talking about increasing density in our already-dense core, by putting probably unwelcome density where it really doesn’t fit, in my mind. We missed an opportunity to help relieve some of the student housing pressures that could have been relieved…I’m just going to say I was very dismayed and disappointed in the decision of council last night to not move forward on that particular project, that was, in my mind, a good development.”

That North Walnut project, at the location of the former Motel 6 was eventually reconsidered and approved by the city council.

Brad Wisler. Wisler is now president of the plan commission. He succeeded Joe Hoffmann in that role. On Monday, he could be expected to oppose Sandberg’s amendment, partly because he has drafted an amendment that pushes in the opposite direction of Sandberg’s proposal.

Wisler’s amendment would remove the requirement that if a duplex were approved by the BZA as a conditional use in R1, R2, and R3, then it would prevent any other duplex approval for two years within a 150-foot buffer of the approved duplex.

Even without his own drafted amendment, a vote from Wisler against Sandberg’s proposal could be expected, based on his remarks in September 2019 in support of allowing duplexes as permitted uses.

Wisler offered a kind of counterpoint to Sandberg’s mention of the large student-oriented housing project. Wisler said, “Prices are set by supply and demand. That’s a fact. It’s a fact that the demand for housing in Bloomington has been, and is growing faster than the supply. And the natural result of that is increased prices. And I really think we are tasked with finding a solution to that.” Wisler continued, “We can’t control the demand. …The only thing that we can control is the supply side. And we have really two options.”

About the two options, Wisler said, “One is we can build massive properties with hundreds of bedrooms that are purpose-built for people of a specific particular class and station in life. Or we can try to create an integrated housing stock that allows for people of different classes and different stations in life to live together in neighborhoods throughout our city.”

Jillian Kinzie. Kinzie might also be expected to oppose Sandberg’s amendment—because she has put forward an amendment that would do the opposite of Sandberg’s. Kinzie is proposing to change the recommendation from conditional use of duplexes to permitted (by-right) use.

Kinzie’s amendment would maintain the two-year, 150-foot buffer requirement, but link its timing to the issuance of a certificate of zoning compliance, instead of a conditional use approval.

Even if Kinzie had not drafted that amendment, her remarks from September 2019 point towards a vote against Sandberg’s amendment.

In 2019 Kinzie recounted her childhood, growing up in a neighborhood with duplexes, which were called “doubles.” Kinzie said, “The thing that I welcomed the most about those doubles, as a kid, it meant that I might have more kids to play with, because now there were two families that lived in the house next door to us, not just one.” Kinzie continued, “And it was even better when somebody’s grandpa moved into the upstairs house and he could make excellent pierogis. …So I learned to love pierogies, because Grandpa Joe made good pierogies.”

Kinzie added, “So for me, the idea of integrating our housing and making more housing, in a variety of different forms, is really attractive. I like the idea of people being able to live in core neighborhoods….So I have a real personal interest in integrated housing and want to see us move forward with this allowance.”

Still, Kinzie expressed some ambivalence between by-right and conditional use. She said, “I have a concern, though—I’m a little bit torn, I don’t know what the right way to go is on this. …[Is it] better advisable to start with the conditional and see how things go, and then make it more permissible, if things go well?”

In September of 2019, Kinzie wound up voting against the proposal to change duplexes from conditional to permitted (by-right) use.

Beth Cate. In September 2019, Cate voted against the proposal to change duplexes from conditional use to by-right. But she viewed conditional use as a compromise, starting from her preferred position, which was to allow them as permitted (by-right) uses in R1, R2 and R3. So Cate could be expected to oppose Sandberg’s amendment.

In September 2019 Cate said, “Where this probably lands me at the end of the day is that compromise position of conditional. And I hate that, and I’ll tell you why. Because in my heart of hearts, I prefer to streamline the planning process much more and to limit the discretion.”

Cate added, “I like the form-based planning approach. I think that the way that the characteristics of what could be built as a plex in these neighborhoods is set out [in the UDO and] tries to preserve the character of what’s happening in those neighborhoods.”

Cate’s reference to the form-based requirements for plexes is to an UDO requirement that is intended to require that plexes resemble other single-family houses in the neighborhood.

Duplexes are now constrained by the UDO’s design element standards for various elements—like roof pitch, front porch width and depth, front building setback and vehicle parking access.

Under Bloomington’s UDO, those design elements for a duplex have to be similar to “the majority of existing single-family or duplex structures on the same block face on which it is located.”

A bill that is under consideration by the state legislature this year, HB 1114, would abolish the ability of local municipalities to regulate design elements.

But HB 1114 has seen no action yet from the state senate, and now looks like it’s dead for this session.

Karin St. John. Like Cate, St. John voted against the proposal in 2019 to change duplexes from a conditional use to a permitted (by-right) use. She saw the choice as between conditional use and permitted use. So St. John could be expected to oppose Sandberg’s amendment.

In 2019, St. John said, “I think that neighborhoods should not expect extreme change. But I also don’t think that they should expect no change at all—they should expect some change.” St. John continued, “So I am therefore torn between the conditional and the by-right.”

St. John pointed to the additional cost of applying to the BZA as required by a conditional use: “The conditional is going to be expensive. It’s going to be expensive on everything and everyone on this process—on the people who work here in our city government, on their budget, on everything. But it does seem to give us a way to get into this without being too immediately disruptive to neighborhoods. So that’s where I am right now.”

Flavia Burrell. In the September 2019 plan commission decision, Burrell cast one of four votes in favor of duplexes being allowed as a permitted (by-right) uses in R1, R2, R3 districts. For that reason, Burrell could be expected to oppose Sandberg’s amendment that would disallow them, even on a conditional use.

In September 2019, Burrell said, “When you make it conditional, it creates obstacles for whoever’s going to do the duplexes and triplexes and quads. And it requires more money and time for them to get anything done.”

About the conditional use, with its requirement that application be made to the BZA, Burrell continued, “You will be encouraging the developers with deep pockets to do that,…not a homeowner that could possibly get a loan and get the work done on their own property.” Burrell said, “The process gets longer, more complicated and more expensive.”

Possible outcomes for Monday, March 29

With five plausible votes against it (Wisler, Kinzie, Cate, St. John, and Burrell), it would not be surprising if Sandberg’s amendment were to be defeated. It would need at least one of those five to revise some of their recent thinking on the topic—which is not necessarily out of the question.

But another vote in opposition could be expected from city engineer Andrew Cibor, who serves as an ex officio voting member on the commission. In 2019, it was Neil Kopper who was serving in that role. Because Cibor is a member of the city staff, all other things being equal, it would be somewhat surprising to see him support Sandberg’s amendment, which is counter to the planning staff’s recommendation.

Based on their deliberations and votes on recent plan commission petitions, Sandberg’s amendment might pick up a vote from Herrera, but would probably not get support from Cockerham.

If Sandberg’s amendment were to fail, then plan commissioners could consider Kinzie and Wisler’s amendments. But they would not have to do that.

Based on the commentary that they give, when they explain their votes on Sandberg’s amendment, plan commissioners will likely be able discern the general appetite for Kinzie’s amendment to change duplexes to a permitted use in R1, R2, and R3.

If Kinzie’s amendment were to fail, or not be considered, Wisler’s amendment—to strike the wording about the two-year 150-foot buffer—could still be considered.

At its Monday session, it seems somewhat unlikely that the plan commission would wrap up both the ordinance on plexes and the one on citywide zone map revisions. Those are the two remaining items out of the 10 ordinances. It’s conceivable that not even the ordinance on plexes will be wrapped up by the end of Monday’s session.

So the commission will likely be using one or both of the dates in April that have been set aside for the consideration of the 10-ordinance package. Those are April 1 and April 5.