The Metro Council passed the Downtown Development Code last night. There is a page on the Planning Commission website with links to the Ordinance and the basic document. Click here.
Overall, the DTC is a step in the right direction: the emphasis is on regulation of form, and less on actual use. In the downtown area, surely a multiplicity of uses can be accomodated: it is more important to control the form while managing use compatitibility rather than the focus which usually has been almost entirely on use issues in the past.
There are a couple of interesting sidelights from a legal standpoint. First, the DTC is evidently excepted from the application of the non-conforming provisions of MetZo (§ 17.40). Since most of the property downtown is commercial or even industrial, the Tennessee Non-Conforming Property Act (Tenn. Code Ann. § 13-7-208) will undoubtedly apply, so the exception likely doesn't mean a whole lot, at least when a non-conforming building is being expanded under subsection (c). In the case of demolition and reconstruction, under subsection (d), the statute may require that the bulk standards be met and the new Downtown Code may apply. Those sections of the statue (Tenn. Code Ann. § 13-7-208(d) and (i)) have always been somewhat confusing; it has never been clear to me exactly how they intersect. Undoubtedly, the Courts will at some point, provide an answer to that question. On the other hand, there may be advantages to compliance with developmental bonuses.
The other interesting legal question is brought up by the section on "modifications," at page 14 of the DTC. The DTC establishes a Design Reveiw Committee (separate from and independent of the zoning board) which may grant modifications where "the intent of the standard is being met, the modifi cation results in better urban design for the neighborhood as a whole, and the modifi cation does not impede or burden existing or future development of adjacent properties."
That all sounds fine but I'd suggest there are several difficulties. First and foremost, these "modifications" sound like zoning variances. Under existing Tennessee law, that's the job of the zoning board, and perhaps more importantly, there are specific standards that must be met. There is a very real question as to whether the DRC can assume the function of the zoning board, and if so, whether it must comply with existing Tennessee law.
In addition, the selection process is very unusual: nomination by 4 private organizations and appointment by the Mayor, Vice-Mayor, Historic and Planning Commissions. If a private developer loses an application for a modification, an attack on the structure of the DRC seems very likely. It is worth remembering that the Planning Commission itslef is only an appointed body: it is not elected and the members are not required to be confirmed by Council. So to have an appointed commission appointing more folks with powers over private property, there seems to be a wide gulf between this system and the Tennessee enabling legislation. Alfred Bettman's idea was that the Planning Commission itself was mostly an advisory body: any decision routed through it was usually finally made by Council, an elected body. The one exception is subdivisions where the MPC makes its own decision: but those cases are much less controversial. It will be interesting to see how the new DRC fares given Tennessee law.
Finally, p. 15 of the DTC has 5 levels of compliance. The first 4 levels seem to be covered by the Tennessee Non-Conforming Property Act, discussed above. As long as the use of the property remains the same, it is not clear to me that an owner needs DRC's permission regarding construction. For example, under levels 3 and 4, where redevlopment takes place after demolition of less than 100% of the existing building, the statue surely allows expansion as of right. Perhaps an owner cannot demolish 95% of his building and still come within the terms of section 208(c), but no one knows where that line may be. If the owner takes down 75% of the existing structure, intends to overall expand the existing use of the property,does that come under 208(c), not requiring compliance with existing bulk regs, or 208(d), which may require such compliance? This will be an interesting area to watch.