Why would the city do this?

I have practiced law and lived in Raleigh since 1996.  My practice is largely focused on commercial real estate, land use and development.  I represent developers seeking to build projects in and around Raleigh, Durham, and throughout the State.  I am also one of the few attorneys that will step on the other side of the table to represent community groups and neighbors who oppose various projects or developments when developers come before public bodies for a rezoning, a special use permit, or a variance to development regulations.  I see the issues from both sides, almost daily.  I have experience working with CAC members and community leaders, residents, and developers in negotiating development approvals with a local government, whether a rezoning, a special use permit, variances, development agreements or other real estate and land use related matters. I am submitting these comments to Livable Raleigh anonymously.

There is now a debate in the land use and development community about “missing middle,” density

Currently, there is a seeming rush to increase density and height in and around the downtown Raleigh area, especially at the edges of the downtown

There is now a debate in the land use and development community about “missing middle,” density, and how and where increased height and housing will and/or should be located and constructed.  The “missing middle” is a term which has been used to refer to a missing element of urban development situated in the “middle” between single family housing, built to no more than 3-4 stories, and more intense structures and buildings rising 10 or more stories which are not “missing middle.”  Once development gets to 7-9 stories it is no longer fairly characterized as “missing middle,” because that type of higher intensity development is programmed for specific areas in our city with the needed infrastructure required to accommodate such intense uses which are focused on the downtown core, the axial streets of Fayetteville Street, Hillsborough Street, and Edenton Street/New Bern Avenue, and immediately adjacent to the three “Squares” in the central core of downtown.

Currently, there is a seeming rush to increase density and height in and around the downtown Raleigh area, especially at the edges of the downtown, including:

• • to the north at and around Seaboard Station and Peace Street area,
  • to the south of downtown at and near Shaw University and along S. Saunders Street and pushing towards Boylan Heights and other older neighborhoods such as Caraleigh
  • to the east along the New Bern Avenue spine heading out of downtown, and
  • then to the west along Hillsborough Street and Western Boulevard.

 Land in the core of downtown which is already zoned for 20-40 story height is, naturally, much more expensive and harder to secure for a project that would include such a building.

So, what to do?  Where is land more available?  Where is it cheaper?  At the edges of downtown, that’s where!  And that is why there is a significant effort and push amongst developers in Raleigh to acquire and develop properties that, in the past, no one ever would have thought would be appropriate for a 20 story or 30 story building

The city’s recent rush to add more “density” is being justified by planning officials and city leaders by the Bus Rapid Transit systems that the City is seeking to construct that will emanate from the core of downtown and radiate outward along the north, south, east, and west axes of major roads that will be transformed into road facilities that will cordon off much of the bus traffic from standard automobile traffic.  Developers are now focusing on the edges of downtown along and near these corridors, which is not surprising.  Land in the core of downtown which is already zoned for 20-40 story height is, naturally, much more expensive and harder to secure for a project that would include such a building.

So, what to do?  Where is land more available?  Where is it cheaper?  At the edges of downtown, that’s where!  And that is why there is a significant effort and push amongst developers in Raleigh to acquire and develop properties that, in the past, no one ever would have thought would be appropriate for a 20 story or 30 story building, whether at Peace and West (Z-54-22), at Seaboard, in Glenwood South, near Boylan Heights, to the south of downtown, and to the east along New Bern Avenue.  Indeed, policies in the City’s own Comprehensive Plan inform that density and height of development in the central business district should taper and transition down from 40 to 20 stories from the core, and then as one moves further away from the downtown core and closer to the downtown adjacent neighborhoods (the “edges”) the density and height of the built environment would then taper and transition down further until it meets the level and height of adjacent and nearby residential neighborhoods that have a built context of no more than 3-4 stories in height.

Rezoning cases are seeking to establish zoning for 20, 30, and even 40 stories in very close proximity and adjacent to established residential neighborhoods.

Do we really need to rezone critical and sensitive areas around the edges of downtown near established and historic residential neighborhoods?  Is the capacity of existing zoning in and around downtown running out in terms of our ability to meet the demands that existing and new residents create?

But now, with “BRT” and “TOD,” and “frequent bus networks,” “transit station areas,” and other land use concepts previously unknown to the development industry here in Raleigh, developers are looking to maximize every square inch on a piece of property, and that means vertically as well.  This is why we are seeing numerous rezoning cases along the edges of downtown and close to established and even historic residential neighborhoods.  These rezoning cases are seeking to establish zoning for 20, 30, and even 40 stories in very close proximity and adjacent to established residential neighborhoods.

We need more housing for this new-fangled transit system, right?  With more housing developers can construct a more diverse supply of housing, yes?  Of course, if we need more housing and a more diverse supply of it, then we need to rezone for more density and height to incentivize developers to build it.  We all agree on that, right?

But do we really need to rezone critical and sensitive areas around the edges of downtown near established and historic residential neighborhoods to do this?  Is the capacity of existing zoning in and around downtown running out in terms of our ability to meet the demands that existing and new residents create?  Do we really need more density, bulk, and height to accommodate this growth?

It is NOT true that Council hasn’t approved enough housing.

From 2016 through 2021 council approved zoning changes throughout the city to allow the construction of 62,000 housing units which is enough to house 142,000 people. This is more than 300% greater than Raleigh’s current growth rate.

What about the infrastructure in these areas along the perimeter of the central business district?  Can it handle this substantial increase in impacts to stormwater pipes and channels, sewer lines, road networks, and the like?  Do we need to increase existing zoning entitlement by 150% or more to create the legal framework needed to build out the capacity that might be needed for the influx of additional residents and citizens.  The answer to these questions is, decidedly, no.  Not even close.

Recently, in a March 20, 2021 article addressing the supposed need to rezone property within the city in order to build the density/height that some believe will bring more and diverse housing to this City, I came upon this very interesting and very relevant factoid:

“It is also NOT true that Council hasn’t approved enough housing.  In the five years since the small area plan and zoning were established [in 2016] for this location, Council has approved nearly 200 zoning changes throughout the city to allow the construction of 62,000 housing units which is enough to house 142,000 people. This is more than 300% greater than Raleigh’s current growth rate.”

Source: Council ignores Planning Commission

That was in 2021, and there were more than 100 additional rezoning changes approved by the City in 2022, and perhaps a slightly lower number of rezoning changes that will be approved in 2023.

The “we need more housing argument” is a red herring.

Our existing zoning map has an enormous amount of existing but untapped capacity already built into it.  Developers just have to build it out.

The “we need more housing argument” is a red herring.  Even if we do need more housing, that does not mean there is a need to rezone property throughout Raleigh to achieve that goal.  Our existing zoning map has an enormous amount of existing but untapped capacity already built into it.  Developers just have to build it out.  Not rezone existing untapped capacity to the detriment of the surrounding community and residents.  See Peace and West zoning case (Z-54-22).

Frankly, we just need to be smarter and pay more attention to the incredible value and flexibility built into the EXISTING zoning of land in and around the central business district, and indeed all of Raleigh, that was enacted just 7 years ago in 2016.  These changes were made to prepare for just the kind and type of growth that we are now experiencing.

The problem is affordable and work force housing.

These rezonings are not creating circumstances where developers are leaping at the chance to build affordable and/or work force housing.  That is simply not where the money is.

Certainly, there are many more people who are deciding to move to this area who want more “higher-value” housing at the upper end of the market, and that sub-market was once pretty thin.  Now, that market has grown substantially, especially during the prior council term.  The select few who are in the market for more high-end housing do have more options to choose from than in the past, and that is a good thing.  But that is not the problem. The problem is affordable and work force housing.  These rezonings are not creating circumstances where developers are leaping at the chance to build affordable and/or work force housing.  That is simply not where the money is.  The money is in luxury housing, and that is the incentive currently driving developers in part due to the policies pursued by city leaders in approving rezonings that are, in large part, just not needed.

We need to impress upon our city leaders that they must slow down this rezoning “gold rush”.

Start building out the more than ample existing capacity before we try zoning 30 stories adjacent to a historic residential neighborhood!

We need to impress upon our city leaders that they must slow down this rezoning “gold rush” and look closer at the enormous capacity and value that is already built into the existing zoning throughout the city, and especially in the central business district.  Start building out the more than ample existing capacity before we try zoning 30 stories adjacent to a historic residential neighborhood!

With 300% of the capacity for future anticipated growth already baked into existing zoning here in Raleigh, why would this council seriously consider rezoning a 2.6 acre site at Peace and Glenwood to allow 30-story height (i.e., Z-54-22) when this same site is already zoned for 12 stories?  Under the EXISTING zoning a developer could construct 12 stories at the Peace and West site with a maximum of 549 dwelling units without any rezoning at all.  That is a ton of density on a 2.6 acre site zoned for 12 stories (estimated to accommodate well over 300 people per acre).

Would 30-story zoning help that much in terms of increased housing supply or affordability?  Not likely.

The truth is, we don’t need it.  It’s not necessary for expected population growth.  Our own statistics bear this out very clearly.  It’s data.  Read it.

Would 30-story zoning help that much in terms of increased housing supply or affordability?  Not likely.  Planning Staff’s analysis in zoning case Z-54-22 (Peace and West 30 story zoning case) indicates that the proposed 30 story zoning would yield up to 770 dwelling units.  Thus, this rezoning would theoretically create an additional 221 dwelling units over what the existing zoning could already max out (549 dwelling units).  Did I mention that the existing zoning throughout the City already has 300% of the capacity for the expected population growth forecast based on the land use policies set forth in our existing Comprehensive Plan adopted by city council?

So, why does the city REALLY need to consider a 30-story zoning request at Peace and West?  The truth is, we don’t need it.  It’s not necessary for expected population growth.  Our own statistics bear this out very clearly.  It’s data.  Read it.

Increased density and height also come with a cost in terms of impacts on infrastructure.

After seeking and receiving approval from city council for a 40-story zoning and 20 story zoning for various parts of the “The Creamery” building site in Glenwood South, the developer of that site pulled back on their site plan approval because the infrastructure in the area was not able to accommodate the density it would bring.

Such increased density and height also come with a cost in terms of impacts on infrastructure.  Recently, after seeking and receiving approval from city council for a 40-story zoning and 20 story zoning for various parts of the “The Creamery” building site in Glenwood South, the developer of that site pulled back on their site plan approval because the infrastructure in the area was not able to accommodate the density it would bring.  A recent article in the Triangle Business Journal explained:

“Raleigh City Planning officials said the city’s water department in December put a public utility hold that stops any site permits from being issued.  Notes on the project indicate that the cost of replacement of sanitary sewer needs to be calculated and paid before any permits can be issued.” (Emphasis added).

Whenever one must dig underneath the earth to pull out 100-year-old pipes and replace them with very large and modern pipes to handle the effluent and waste of thousands of people living in numerous high rises that have been built and will be built in the future, the cost becomes exceedingly high.  That cost is not paid by the City.  Instead, the City passes that cost on to the developer (who passes those costs on to us) and requires that they get all the needed easements and rights to increase and improve those pipes, not just on its property, but also off-site as well because that added capacity off-site is also required to serve that development.  The cost to a developer to build out a City’s infrastructure can be a deal-killer.  Apparently, that was the case for The Creamery project.   As stated in the first line of the above-referenced TBJ article, “[The proposed Creamery] development project in Glenwood South may be on hold with no restart date in sight.”

The City’s on-going efforts to rezone for anticipated growth is way out in front of the “infrastructure skis”.

 It is time to closely scrutinize these prospecting zoning cases and instead of saying “why not”, we should simply ask “why” we would need such increased zoning when our community already has the zoning capacity it needs for future growth.

This begs a fundamental question, why rezone to permit 20-30-40 stories in sensitive areas around the edges of downtown when the existing infrastructure is not even able to support it?  Further, as demonstrated by The Creamery example, it is apparent that neither the development community nor taxpayers will be willing to foot the extremely high costs to improve and build out new infrastructure to support the increased capacity that was created by the numerous 20-40 story rezonings we are told are needed to increase housing supply and diversity.  In reality and in truth, we do not need this excess zoning capacity because the existing capacity in our zoning is already 300% greater than Raleigh’s current growth rate.

The City’s on-going efforts to rezone for anticipated growth is way out in front of the “infrastructure skis” that are necessary to make such developments happen, as evidenced by The Creamery example.  It is time to closely scrutinize these prospecting zoning cases and instead of saying “why not” in the name of “climate change,” “walkability,” “affordability,” etc. etc., (insert other “buzz word” here), we should simply ask “why” we would need such increased zoning when our community already has the zoning capacity it needs for future growth.  Indeed, in at least one critical area of the central business district it is already clear that the infrastructure and market are simply not yet prepared to accommodate the level of bulk, density, and height that comes with 20-30-40 stories of development located so close to historic residential neighborhoods.  If it is that bad in Glenwood South, what does the infrastructure look like in other areas along the further edges of downtown?

The Glenwood-Brooklyn residents are pleased to see someone build out 12 stories at Peace and West.

Why would our leaders want this rezoning which will just force us to live with the deleterious impacts it would inflict upon a valued historic resource and neighborhood that our city is bound by its own Comprehensive Plan to protect?

So, we must ask what exactly are we doing?  Why would we even consider rezoning for development that, in at least one high-profile case, cannot and will not be built because the existing infrastructure cannot accommodate the buildings made possible by a recent 40 story rezoning, and the expense to build that new infrastructure makes the whole project infeasible to the point of stopping the project “with no restart date in sight.”  Did rezoning to allow up to 40 stories help make this site developable?  Or did it just make it undevelopable for 20-40 stories?

The Glenwood-Brooklyn residents are pleased to see someone build out 12 stories at Peace and West.  No rezoning is required.  Build out all the 549 dwelling units that could be crammed on that site at 12 stories.  Does a 30-story zoning at the Peace and West site give us anything we really need, other than a headache in trying to determine whether and if the surrounding infrastructure can support it.  If not, then why would our leaders want this rezoning which will just force us to live with the deleterious impacts it would inflict upon a valued historic resource and neighborhood that our city is bound by its own Comprehensive Plan to protect?

A development agreement which is in effect “legalized extortion”.

There is just no good reason to impact the surrounding community and neighborhoods with a 30-story building so close to their homes and properties that would cast shadows and glare not only over the neighborhood, but also the public park that would be situated next door.

Why would our leaders enter into a development agreement with the potential developer of the Peace and West site as part of the proposed rezoning (Z-54-22), which is in effect “legalized extortion” whereby a developer gets their property rezoned as desired, and the city gets something in return it feels it needs related to the future park.  Is it reasonable or in the public interest to be party to a deal that is, in effect, “legalized extortion” which then sells the unique character of the historic Glenwood-Brooklyn neighborhood down the Pigeon House Branch?

But why do it?  It is not needed and there is just no good reason to impact the surrounding community and neighborhoods with a 30-story building so close to their homes and properties that would cast shadows and glare not only over the neighborhood, but also the public park that would be situated next door.  Who are we trying to protect?  Who should we protect?  Who are we trying to help and at what expense?

Who is benefitting from this prospecting for increased zoning entitlement.  Is it taxpayers?  Surrounding neighbors?  Users of the park?  The folks living in the additional 221 luxury units that would be made available by increasing zoning entitlement from 12 stories to 30 stories?  Who would benefit from city council changing the zoning in this manner when it simply is not needed and is not sound public policy?  Who?  You tell me.

City council should vote to deny Z-54-22.

Should the 30-story zoning case at Peace and West (Z-54-22) be approved by city council?  Is it needed?  Is it good for the surrounding residents of an historic residential neighborhood?  Is it good policy for the city and its residents?  The simple and most straight-forward answer is, no.  It is not reasonable and it is not in the public interest.

City council should vote to deny Z-54-22.

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