Oro Valley residents will cast one of their most important votes ever Nov. 4 when they decide whether to pass or reject a proposed General Plan update that will help determine how the town grows during the next 20 years.
That is one of the few statements about which both foes and supporters of a plan that will serve as the guiding document determining land use in the town (what will be built and where) can agree.
"This plan lays the road map for what their future will be and whether they will be able to control that future," said Carl Kuehn, leader of the OV Beyond 2004 political action committee and founder of Web site www.ovbeyond2004. org., which is dedicated to defeating the measure.
Neither friends nor foes of the plan argue the need for an update. It wouldn't do them much good if they did.
Cities and towns must update their general plans as a result of state enacted Growing Smarter legislation in 1998 and 2000 that established a set of new requirements for the preparation and adoptions of new plans. Arizona law requires zoning to be in conformance with a General Plan.
Both sides recognize how the town's size and population has nearly doubled since the last General Plan was adopted in 1996.
During the next 20 years, Oro Valley's planning area is expected to more than double in size to 77 square miles. In 1996, Oro Valley covered 26 square miles Population has increased from 6,670 in 1990 to 29,700 in 2000 to nearly 38,000 today.
Supporters and opponents alike recognize too, that the priorities, goals and objectives of residents, as well as the political climate, has changed in a town that will celebrate its 30th birthday in the 2004.
If voters reject the plan, the same or another plan has to be submitted by the next legally scheduled election or in a special election. Failure to do so could subject the town to lawsuits from the state Attorney General's Office under the Growing Smarter legislation. The town has already postponed an election three times.
The 89-page plan covers 13 elements. They are: land use, including growth areas; community design; economic development; cost of development; transportation circulation; public facilities, services and safety; housing; parks and recreation; arts and culture; archaeological and historic resources; open space and natural resource conservation; water resources; and environmental planning. Growth areas, environmental planning, cost of development and water resources are newly required elements.
What opponents are particularly opposed to are: seeming inconsistencies in basics such as whether commitments to proposed policies in the plan are firm or merely implied; changes in requirements for amending the plan; a financial model projecting future revenues that they see dictating more than anything else how and what kind of growth will occur; and the retention of a land use known as mixed use neighborhood, a use many foes believed had been scrapped.
Residents made their views known in a process that included nearly two dozen Steering Committee meetings, two public hearings before the Planning and Zoning Commission and three Town Council public hearings. Those views were relayed to the Town Council via the Steering Committee and led eventually to the council's May 29 adoption of a General Plan and the establishment of the Nov. 4 date to put the issue before voters.
Ballots for the all-mail election, which is expected to cost the town more than $50,000, went out to more than 17,000 registered voters Oct. 2.
"If I could rely on it, even with its weaknesses, I'd vote for it," said Bill Adler, vice chairman of the Development Review Board and a harsh critic of the plan.
To Adler, however, there are too many inconsistencies, too many ambiguities and "there is no excuse for ambiguities in a plan that has taken a year and a half to develop and cost more than $500,000," he said.
What citizens said they wanted, Adler said, was a General Plan "that had teeth, would be followed and honored." In his estimation, residents aren't getting it.
The complaint about inconsistencies in the plan's language centers on policies being strictly adhered to and statements at the same time implying that they are merely guides for carrying out the plan.
The plan's policies are its cornerstone and if there's a conflict as to how they are to be applied, strictly or at the whim of the council or town staff, that poses questions about how much credibility the public should give the plan, Adler said.
As an example, Adler pointed to a preamble on the first page that states: "We intend that the plan be followed and consistently applied unless and until conditions in the community have changed to the extent that the plan requires amendment or modification."
On Page 16, however, Adler noted, policy is defined as "a specific statement in text or diagram guiding action and implying clear commitment," while on Page 86 policy is defined in the glossary as "a course of action that the town shall take to implement the goal to which it relates. When policies are followed and consistently applied, they work to implement the community's vision for the future.”
"So now you have three statements, none of which coincide with the other and that to me is the cornerstone of a concern that anyone in Oro Valley should have if in fact they care about transportation, the quality of housing or the protection of scenic corridors," Adler said.
"I don't care what the element in the General Plan is, whether it's economic development, environmental planning, open space and natural resources, take your pick,' Adler said. "Any element and its integrity is going to resolve around which of those statements is going to be utilized."
As it stands now, "every element of the plan is up for grabs when you look at the lack of consistency with the Steering Committee speaking with one voice and the council and staff speaking in a different voice entirely," Adler said. "Which voice should we be listening to and which voice are we to believe?"
Opponents also are troubled by what they consider to be watered down "findings of fact," requirements for amending the General Plan.
Under the current General Plan, a proposed change cannot be made for the sole benefit of the property owner. That stipulation is being deleted and substituted with a provision that the amendment must provide a benefit to the town. Critics complain the word "benefit" isn't defined.
Oro Valley Mayor Paul Loomis suggested critics look up the meaning of the word.
In the context of the General Plan, benefit means a positive change for the town overall, Loomis said. The change may be a negative for the immediate neighbor and a positive thing for the property owner, he said, but it comes down to does the change fit into the overall policies and guidance provided by the General Plan, he said.
A second "finding of fact" in the current General Plan says the proposed amendment change has to be consistent with the goals, vision and policies of the plan. In the proposed plan the requirement is that the amendment be "substantially" consistent.
"Well, what's substantial?" asked Adler. "Is it 30 percent? 50 percent? 80 percent? There is no agreement on what constitutes substantial."
A third "finding of fact" addresses approving a General Plan amendment if a proposed development plan provides enough mitigating conditions to reduce any adverse impacts of that development. Critics say the General Plan shouldn't be changed at all if it involves permitting any adverse impacts.
John Neiss, an attorney and former chairman of the Steering Committee, speaking individually and not as a committee member, disagreed with Adler.
"Some people think the policy language isn't tied down enough, isn't specific enough," he said. "I think anyone who is good with the manipulation of words can come up with different definitions no matter what you say. I don't think slight flexibility is all that bad. Look at the U.S. Constitution. Its authors were able to write something that has lasted more than 225 years and it's done very well; it's one of the finest documents ever written."
Neiss defended what he termed the flexibility of the plan's policies as a necessity. "Who's to know what the economy is going to look like five years from now, 10 years from now, 20 years from now. I think the plan is specific enough but also flexible enough to meet the needs of the times.
"I find that where people don't like the plan it's because they don't like a certain segment of it. It's very nice to be an idealist, but it doesn't get things through. It's like ordering a steak dinner. You order it because you like the entree although you may not be crazy about the cauliflower. But you don't throw out the steak because you don't like the cauliflower."
Neiss said that while he's not totally happy with the Plan and would have preferred to see more mixed-use development, the plan as it ended up is "as good as it's going to get.
"I see no reason to waste more time and more money revising the plan again," he said.
Don Cox, another Steering Committee member and a member of the Oro Valley Planning and Zoning Commission, agreed.
"If we had less elasticity in the plan, then what happens if the town's population doubles again? I think in some ways it may be too strict. The future is not etched in stone and therefore the General Plan's policies cannot be," Cox said.
In attempting to address the needs of a growing town of 38,000 residents, "I think it's a very good reference to help the Planning and Zoning Commission, the Town Council and the citizenry to get an idea of the future growth plans of the town," he said.
"If you lock everything in the General Plan in stone then are you able to evolve more without having to revive the plan every year or every month or every day as a new issue comes before the town?" asked Loomis. "I think the sensitivity to the requirements and goals and elements of the General Plan is there and it's simply a case of do we build flexibility into the document so that it is still applicable 10 years from now.
"You have to say to yourself is this a document that can be used and worked with on a day-to-day basis," Loomis said. "As soon as you say it has no flexibility then it becomes one of those documents that simply sits on the shelf."
Kuehn argued that the policy language in the plan "is so loose, contains so many loopholes, that there are no hard and fast guidelines that would give policymakers the ability to say "no."
"So the very tools that policymakers and elected officials need don't exist in the plan and that's what's bothersome to me," he said.
"Until these loopholes are fixed, we shouldn't pass the plan," Kuehn argued. "There is no risk in saying no. The good points aren't going to go away. They'll still be there when the rest of the plan is in shipshape and ready to be voted on."
Alan Dankwerth, another former Steering Committee member, also believes the vote should be put off.
"I'm very unhappy with the inconsistencies that are still present in the plan," he said. "The committee fought very hard to correct these things and the final version has not done that as far as I'm concerned."
The plan has many positives, Dankwerth acknowledged, including sections related to the process of amending the plan, better protection of scenic corridors, increased attention to environmental concerns, improved means of minimizing the impact of development on scenic views and better land control guidelines.
But still the Steering Committee's recommendations "didn't carry the weight I think they should have," he said.
As the Steering Committee was winding down deliberations before presenting recommendations to the council, "I felt we were being rushed to the finish line with so much paper," Dankwerth said. "We'd come into the Steering Committee meeting and literally have a payloader of paper dumped on us. If I had it to do over again, I would slow the process down."
Dankwerth said many of the committee's members "thought, perhaps naively, we were there as true representatives of the residents of Oro Valley who had stated very clearly what they wanted during various focus groups and phone surveys."
Dankwerth said he felt many of the panel's recommendations were "massaged" to fit in more with a plan town leaders wanted. "It seemed the town was saying basically, 'give us your opinion, but we'll kind of do what we want anyway'," he said.
"The council and staff had in mind what they wanted and when the committee's recommendations jibed with that, things were left in," Dankwerth said. "Where they didn't, we had a tug of war, mostly with staff and basically things were massaged. In the end, the product did not come out as people thought it would."
An example of this was the development of a matrix to determine which land use changes would require approval by a simple majority of the council and which changes would require a supermajority five votes on a seven-member council.
"Specifically I don't like the idea that a residential use can become a neighborhood commercial and office use with a minor amendment when it should be a major amendment requiring a supermajority vote," he said. Dankwerth said the committee wanted changes from medium and high density residential uses to the neighborhood commercial and office use to require a supermajority vote, but the change was made so that it is allowed with only minor amendments and a simple majority vote.
MIXED USE CONTROVERSY
A proposed mixed use neighborhood designation allowing an integration of residential and commercial uses is also a major point of controversy. The Oro Valley Town Council, critics point out, eliminated the designation from the plan but it is still included, they say.
Loomis said if the mixed use neighborhood concept is still in the plan, it must be a "scrivener's error." Although it isn't part of the General Plan, it is neither prohibited nor encouraged, he said, adding that if a landowner has Planned Area Development zoning, as an example, mixed uses are allowed irrespective of the General Plan.
There appears to be some confusion over this mixed use concept.
Bryant Nodine, planning and zoning administrator, said housing and air quality elements of the plan refer to encouraging mixed use development, not mixed use neighborhoods, and those references should have been deleted but unfortunately weren't.
The idea was to promote a variety of uses in areas designated as planned use developments and master planned communities where residential and commercial uses would be properly buffered and separated, not to intermingle residential and commercial uses without a clear separation of those uses, he said.
Town planners are following the council's order to eliminate the implementation of a mixed used neighborhood designation until there's a clearer definition of what such a designation would entail, he said. The directive was given in reaction to opponents of proposed development in an area along La Cholla Boulevard from the Tangerine Road intersection to Naranja Drive.
Economic sustainability is also a prime goal of a new General Plan.
BRW Inc., consultants hired by the town to help develop the plan, projected that under the proposed plan, by the time Oro Valley is built out in residences and commercial development is largely built out in 2020, the town will have garnered a cumulative surplus of $166 million with annual net surpluses of $2 million in the short term increasing to $11 million annually as commercial areas are developed.
Areas planned for annexation would boost the surplus by $4.5 million a year when built out, they estimated.
Kuehn contends those projections are largely dependent on the eventual zoning granted for properties that currently only have suggested uses attached to them in the General Plan and must still go through the zoning review process.
"If that's the case, it means that when it comes down to a public hearing process, the council will listen to everyone pour their hearts out at the podium, but the desired zoning is a done deal because the financial modeling of the town demands buildout," Kuehn said. "When people ask the council 'why are you doing this' (zoning to higher densities and more intense uses as occurred in the vast majority of changes made by the council to nearly two dozen land use maps previously reviewed by the Steering Committee) and the town says it's to the benefit of the town, the town is defining benefit as cash flow."
Kuehn contends the proposed General Plan opens the door for property taxes to pay for infrastructure needs rather than requiring growth pay for itself.
Loomis totally rejected Kuehn's contention that the projection of surpluses to be gained is dictating how the town will grow and defended the council's revision of the land use maps without a public hearing.
"The financial model is merely a tool to show the cost of development and the economic viability of the town," the mayor said. "All it is is a tool.
"If you go back to the plan's basic vision of the town, one of those visions is an economically independent community," Loomis said. "In everything we look at, the impact financially is looked at. Is that a significant driver in the approval of actions? Not really.
"Yes, the town has a duty to provide services. Now, in order to provide those services, it costs money. The town has been very fortunate up to this point in being able to keep costs low and provide those services without property taxes.
"As various funding sources are reduced that have kept the town on a positive side, there's a corresponding question. If those dollars aren't coming in from construction, do you shift those to sales taxes? That's the natural evolution, if it doesn't happen, you shift to other sources and ultimately end up with a property tax that says if you want certain kinds of services and we don't have the dollars coming in, then you have to decide how you're going to pay for them.
"Yes, the financial model certainly identifies the economic impact of commercial development and what a commercial enterprise can provide to the community in terms of the sales tax that it generates, as an example. But that's only one source of funding to pay for the services desired."
The proposed General Plan places a high priority on the preservation of open spaces but no estimate has been made of the cost to the town of purchasing these lands from private owners, the state or federal government.
Also excluded from economic projections is the cost of developing the 214-acre Naranja Town Site on the north side of Naranja Drive and east of La Cañada Drive. Amenities that would include ballfields, a swimming pool, amphitheater and auditorium are estimated to cost between $50 million and $80 million. Opposition to town plans to put public buildings on the site also are likely to drive up the price as the town looks for alternative sites to buy on which those buildings could be placed.
The town also is studying the possibility of creating its own fire department. The $7.3 million in start-up costs and $4.7 million a year it would cost to run such a department were unaccounted for in the forecasts as well.
Dankwerth said he "wasn't happy at all" with the consultants. "They were one of the worst consultants I've ever seen," not only because of their inability to address questions related to their financial modeling, but in their formation of focus groups that merely satisfied demands of a bureaucratic system, he said.
LAND USE MAPS
Opponents also have been critical of the council's approval of changes to nearly two dozen land use maps, increasing the densities in most cases without public hearings. Between 10 and 13 percent of the Oro Valley planning area would be affected by the changes.
The process used by the council in accepting the land use maps, Loomis said, was the same as the process used in developing the 1996 General Plan. "The requests for final adjustments were heard by the council and the council made its decisions," he said. "I think the land uses decided on will continue to fit the community, and public hearings were not a requirement. We could have held public hearings, but we also could still be writing the General Plan today, too."
The land use designations on the maps refer to densities that would be allowed in certain land use categories. Applicants would still have to go through the planning review process to obtain the necessary zoning. Adler has pointed out, however, that when developers and landowners were invited to make similar requests for the 1996 General Plan there were no plan amendment procedures in place. Now that there are procedures for amending the General Plan, those procedures should be followed, he said.
Dick Maes, Vistoso Partners' general manager, said his main concern with the proposed General Plan is that land use maps show uses assigned to properties that are different from their actual zoning.
"I think this is very misleading when this occurs," he said. "The General Plan ought to indicate if there is existing zoning because most people who look at the General Plan think it's set in concrete and it's not.
"It's just a planning tool, but people come to the council and say a certain land use doesn't match the General Plan and we have to say 'well, it's already zoned, folks'," he said.
Kuehn said the bottom line in terms of opposition to the plan is: "I can give you good reasons to vote no on the plan, but I cannot give you good reasons to say yes. I'd love to say I'll vote for the plan because it's cool and our town will march forward, but the plan is not clean enough to sign off on because of the gaping loopholes in the language.
"I give the town kudos for trying to involve the community, but the point is after the document left the citizens' Steering Committee last fall, the public has been very limited in its ability to participate in the process," Kuehn said. "Public meetings at which the public is not allowed to be heard aren't public hearings, they're lectures."
Neiss responded: "When you look at the changes in the town, the goals and objectives of the plan and you look at the fact that eventually you're going to have to do a new plan because it's mandated by legislation, I see no reason to waste time and more money" postponing a vote and going through the process again.
"I don't agree with all the changes made by the Town Council and the Planning and Zoning Commission, but I agree with the overall plan," Neiss said. "No one is going to agree with all the changes. What is perfect to one person isn't going to be 100 percent perfect to another person. A majority of the plan I can not only live with, I think it is very good. And if people believe the council didn't follow the 1996 plan and won't follow this one, well, if they're unhappy with the council then obviously they always have the ballot box."
Oro Valley's General Plan can be reviewed on the town's Web site www.update2020.com.; at the town library, 1305 W. Naranja Drive; or in the administration and development services buildings, 11000 N. La Cañada Drive. Additional information about the plan is available by calling Oro Valley Planning and Zoning Administrator Bryant Nodine at 229-4807.
To be qualified to vote in the Nov. 4 special election, residents had to be registered with the Pima County Recorder's Office as of midnight Oct. 6. Ballots for the all-mail election were sent out Oct. 2. All ballots should be mailed to the Pima County Recorder's Office, 115 N. Church Ave., so they are received no later than 7 p.m. Nov. 4. Ballots can also be dropped off at the Oro Valley Town Clerk's Office, 11000 N. La Cañada.
The political action committee OV Beyond 2004, which opposes the plan, also has a Web site at www.ovbeyond2004.org.