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Is it discriminatory if certain types of <br /> projects, such as affordable housing, are exempt <br /> <br /> from the concurrency regulations, or to apply the concurrency requirements only to <br /> certain geographic areas ("equal protection "concern)? <br /> As long as distinctions or classifications are rationally related to legitimate public <br /> purposes, the discriminations are constitutional. The rationale for concurrency <br /> regulations to exempt residential uses are twofold: 1) a major cause of congestion is the <br /> peak hour commuting, therefore housing within the urban core nearer to the jobs would <br /> reduce commuting; 2) incentives are necessary to promote affordable housing within the <br /> urban core. The determination of deficient service areas will be supported by <br /> infrastructure capacity studies. Courts apply a very deferential standard when reviewing <br /> land use legislative acts, unless a suspect class (e.g., race) or a fundamental interest (e.g., <br /> the right to vote) is involved. <br /> How does the developer's contributions to meet concurrency requirements relate to <br /> impact fees? <br /> Whatever the applicant contributes to meet concurrency requirements is credited to <br /> impact fees (or fair share contributions). Usually, impact fees aze collected in the later <br /> stages of the development project such as plan approval or final subdivision approval. To <br /> reserve capacity for public facilities once rezoning is approved, concurrency regulations <br /> could require the upfront payment of impact fees. This upfront payment could <br /> distinguish the speculative rezoned project that would tie up capacity from the serious <br /> project that will actually need the capacity. Nevertheless, the collection of impact fees <br /> from many developers augmented by bond financing are usually necessazy to design and <br /> build public facility improvements. Hence, even with an applicant's payment of impact <br /> fees, the applicant's project may still need to be deferred until full financing is available <br /> to construct the necessary facilities. <br /> Recommendations <br /> The following action steps recognize that an overall concunrency management system <br /> will need time to evolve, but immediate measures need to be applied to rezoning <br /> applications in specified critical areas. <br /> 1. Until a concurrency ordinance is adopted, include special conditions to <br /> rezoning ordinances to address inadequacies of critical infrastructure facilities <br /> in specified areas. The Planning Department has proposed a critical <br /> geographic area and associated concurrency conditions in Exhibit A. <br /> 2. Adopt a concurrency management ordinance to be codified as part of the <br /> zoning code that establishes the framework for a concurrency management <br /> system to be put into place. Exhibit B is a rough drafr of a proposed <br /> ordinance. The drafr ordinance provides for the following: <br /> a. Applies only to rezoning, and not to subdivisions or building permits, <br /> thereby not changing the rules mid-stream for existing landowners; <br /> b. Public facilities required to be concurrent are identified and classified as <br /> critical, essential, and desirable, and timing requirements for a project <br /> varied accordingly to correspond to the degree the facility relates to public <br /> health and safety; <br /> c. Exempts residential projects to foster affordable housing in the urban core; <br /> 4 <br /> <br />