Tuesday, February 22, 2011

Some Observations on Morikawa v ZBA of Weston

Yesterday, we discussed Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), a Connecticut case where the court reversed the issuance of a zoning variance based on the self-created hardship doctrine. Today, it might be useful to compare and contrast the Connecticut case with how a Tennessee court might apply Tennessee law to a similar fact pattern. there are several points I wish to make including the following: the importance of the exceptional physical features clause under the Tennessee zoning variance enabling legislation (Tenn Code Ann §13-7-207 (3)); equitable estoppel issues; and the the minimus theory of zoning variances.

Today I want to focus on the difference between the Connecticut situation and a variance under similar circumstances here in Tennessee. As I alluded to yesterday, the Connecticut variance statute does not emphasize that the undue hardship or practical difficulty must be found in some exceptional situation or condition of the property. The Tennessee statute however does make that quite clear. The hardship or difficulty must be as a result of some exceptional narrowness, shallowness, shape, topographic condition or some other situation or condition of the property. Thus, in Tennessee, the court would not need to reach the issue of self-created hardship. The lack of some exceptional physical condition of the property, different from the surrounding properties, would be sufficient to deny the variance. To be sure, the fact that the violation was created by the property owner makes it even easier, but there is, frankly, no reason to even reach that issue. In the absence of some unusual physical condition of the property, there is no grounds for a variance. The threshold issue has not been met, and there is no need to go further.

As an example, the leading case on variances here in Tennessee is McClurkan v Metro Board of Zoning Appeals, 565 S.W. 2d 495 (Tenn. App. 1977), a case where the property owner converted an existing residential dwelling to a four family residential dwelling. Unfortunately for the property owner, the building was located in a zoning district which only permitted one or two family dwellings, and was thus a violation of the local zoning regulations. While the Tennessee Court of Appeals mentions the self-created hardship, the court relied mainly upon the fact that there was no evidence of any exceptional physical feature justifying the relaxation of the zoning standards. As another example, unpublished case that I tried many years ago, Biggs v Metro Board of Zoning Appeals, the property owner had built his garage 22.5 feet from the side property line, and 25 foot side yard were required. As a result, he asked for a 2.5 foot side yard variance. While I represented the Board of Zoning Appeals, I nevertheless felt very sympathetic to the property owner’s plight. The construction of the garage inside the minimum allowed side yard had simply been in error, but to would cost a substantial amount of money and frankly not benefit anyone. Unfortunately, the property owner on that side of the applicants property, opposed issuing the variance, and the zoning board found no justification for granting a variance. The case ultimately wound up before the Tennessee Court of Appeals, and again, while I was fairly sheepish about representing the board on such a minor deviation from the law, the law of variances in Tennessee is very clear, and there was no way to justify any variance in the fact that the zoning board had not granted one made even easier. The courts defer to the decision of the board and refused to reverse.

The Connecticut court did briefly discuss siting issues and topographic issues but it dismissed those indicating that they were clearly not sufficient to justify the variance. It is unclear why: based on the case, my best guess is that those issues were not dissimilar from other properties in the surrounding vicinity and there was therefore no exceptional physical feature justifying a variance. Again, that most likely would’ve been the end of it in Tennessee.

Two other quick notes are worthy of mention. First, the applicant for the variance argued just up to the edge of an estoppel, but then backed away, evidently based on the fact that Connecticut follows the majority rule, and then estoppel against the building official does not accomplish anything. To be more specific, the applicant argued that the building code official should have discovered the violation of the 35 foot height regulation long before he actually discovered it. Possibly during construction, although it’s not entirely clear what the homeowner’s argument was. If the building code official had discovered the violation during construction, perhaps it could have been corrected before the building was completed, that significantly less cost to the homeowner. Therefore, the homeowner try to argue that the building code official’s failure to discover the violation caused the hardship in some respect. The difficulty here is that the majority rule across the United States, recognized here in Tennessee is well, is that to the extent that there is a violation of building or zoning law, the property owner gains nothing from the failure of the building code official to properly enforce the requirements. The policy reasons for this is that otherwise any mistake by the building code official would work a zoning change or change the building code. And that would be done without a vote of the local legislative body. In other words, the local building code official or zoning administrator would buy Fiat be able to change the requirements of the code. The majority rule across the United States is that this cannot happen. There is no estoppel against the local government based on the actions of the building code official in most circumstances. That is especially true where there is a violation of the law.

Finally, one other quick note. The homeowner also argued that the violation of 2'7" was de minimus and that no showing of any unusual or exceptional physical feature was necessary. The problem of course is that Connecticut law does not recognize de minimus variances, for lack of a better term. Without enabling legislation to specifically authorize such actions, the board had no power or authority to grant in the absence of an exceptional physical feature of the land.

However, it is worth considering the idea of de minimus variances. The plight of the homeowner in the situation is not uncommon; assuming that there was no intentional violation of the law (and one could argue here that perhaps there was based on the fact that the original plans showed a 38 foot tall roof, and at the end of construction, although the plans had been revised, the roof stood at just under 38 feet tall), there can always be some minor violation just because of simple measuring mistakes and other errors. Does society benefit by requiring a property owner to go to great lengths and significant expense to correct a fairly minor violation of the law? From my perspective, the answer is no. It would be well worth having a provision within the Tennessee variance enabling legislation allowing the zoning board to grant a de minimus variance (perhaps we should call it something else, and I’ll suggest the term minor adjustment) where the applicant did not intentionally create the violation, and the violation itself is no more than 10 or 15% of the permitted zoning regulations.

So for example, in the case of the 35 foot height regulation in Connecticut, so long as the property owner did not exceed the height regulation by more than 3.5 feet, the zoning board could grant the minor adjustment without a demonstration that there is any exceptional physical feature justifying that decision. There are several problems with this approach unfortunately. First, property owners may come to feel that they are entitled to the 10 or 15% adjustment. Second, in terms of larger variances where exceptional physical features must be demonstrated, the fact that a 10 or 15% variance can be granted for no reason whatsoever, would encourage applicants to ask for even greater amounts for particular projects. And those requests might seem justified given the fact that the legislature has seemingly given its blessing to a 10 or 15% variance without any particular demonstration of hardship.

On balance, it seems to me that the minor adjustment theory is worthwhile and would make a reasonable and legitimate extension of the powers of municipal zoning boards. It would be interesting to review a large set of variance requests, say from the city of Nashville, to see how many cases involve relatively minor variances where this kind of mistake was responsible for the requested relief. My guess is that a fairly significant quantity of zoning variance cases come about in just this way. And so long as the relief granted is relatively minor, and does no harm to the fabric of zoning protection in the neighborhood overall, it would not seem to be against public policy to allow the zoning board to grant such minor adjustments.

Monday, February 21, 2011

Self-Created Hardship in Connecticutt . . . and Tennessee

In an interesting self-created hardship case from Connecticut, an error made by the builder's architect was attributed to the homeowner and disqualified him from obtaining a variance under Connecticut law. In Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), an application for a building permit for a single-family residence was submitted to the Codes Department. The plans were reviewed but rejected because the height of the home was 38 feet, and the zoning ordinance only permitted a maximum height of 35 feet, a not uncommon requirement in many smaller towns and cities.

The building plans were revised and resubmitted and a building permit was issued. At a later time, after the construction was completed, while making an inspection concerning an unrelated issue, the codes enforcement officer noticed that the height of the roof appeared to be over the the maximum. Upon closer inspection, the roof height was 37 feet, 7 inches. Since this was a clear violation of the zoning regulations, the codes enforcement officer issued a cease-and-desist order requiring that the homeowners and bring the property into compliance.

Not surprisingly, the homeowner appeal to the local zoning board. Although the board believed that the cease-and-desist order was issued appropriately, it invited the homeowner to apply for a variance which it suggested it might be inclined to grant based on the fact that there was such a small violation of no apparent harm done to neighboring properties. As a result, an application for a variance was filed.

I certainly cannot claim to be any expert on Connecticut land use law, but a quick review indicates that Connecticut, unlike Tennessee, does not have the Alfred Bettman modified variance provision. That is, Bettman drafted language which rooted variance applications in exceptional physical features of the land, such as exceptional narrowness, shallowness, shape, or topographic conditions. The Connecticut statute is more general following the pattern which is probably the majority rule across the United States, and allows a zoning board to grant variances from zoning ordinances or regulations with respect to a parcel of land when “owing to conditions especially affecting such parcel but not affecting generally the [zoning] district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship…”  CGS § 8-6. More about this later.

The defendants submitted three justifications for the variance sought: (1) the defendants relied on independent contractors, an architect and builders who did not check periodically the height of the roof against the plans during construction; (2) the code enforcement officer negligently failed to monitor the construction periodically; and (3) the excess height would not affect the surrounding areas, as the house is set back from the street and the land to the rear of the house is owned by a land trust.

The zoning board granted a variance based on a "de minimis" theory of exceptional hardship. That is, the 2'7" by which the building height exceeded the zoning regulations maximum height was so small that it really was not worthy of enforcement. As a result, the variance was granted.

A neighboring property owner filed an appeal, and one review the trial court reversed. The trial court concluded that there was no theory upon which the board of zoning appeals could grant a variance because the resulting violation was only the minimus. The court found that the difficulty occurred because the contractor looked at the wrong plans. The homeowner maintains that the problem occurred because, although the architect adjusted the height of the roof in the revised plans, he failed to adjust its pitch. Either way, the trial court found that the error was attributable to the homeowner and therefore self-created. One wonders if there was not an underlying thought that the architect revised the plans but that the construction deliberately ignored those revisions based on the wishes of the homeowner. There is no discussion of this anywhere in the Court of Appeals decision, but frankly, having worked in this field for years, it's a bit hard to shake that feeling in the back of your mind that the homeowner was simply trying to get away with something here.

The case was appealed to the Connecticut Court of Appeals:
we conclude that the errors of the architect and/or general contractor that resulted in the roof exceeding the thirty-five foot height requirement are attributable to the defendants because the voluntary acts of those persons were on behalf of the ones whom the variance would benefit. Thus, the hardship claimed is self-created. Moreover, although we can appreciate the plight of the defendants, who relied on the work of the professionals that they hired, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . .  [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . .  limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.”
The homeowner argued for a “de minimis” deviation exception that would obviate the need for the homeowners to prove hardship but the court declined to do so. The authority of a zoning board of appeals to grant a variance is controlled by statute, and § 8-6(a)(3) does not allow a variance unless the applicant proves that there is an “exceptional difficulty or unusual hardship.” See Moon v. Zoning Board of Appeals, supra, 291 Conn. at 24 (“[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance). 

There are several interesting aspects of this case which I would like to discuss in the context of Tennessee land use planning law. We'll take a look at those issues tomorrow.

Friday, February 18, 2011

More corruption in zoning

One final illustration of the shenanigans up in Chicago relating to Alderman Troutman, who pled guilty to political corruption charges in August 2008. These small vignettes are in the 7th Circuit decision upholding the conviction of her office deputy after she pled guilty.The 7th Circuti decision was released last December.

Douglas Greer owned property located at 5843 South State Street near Troutman's aldermanic office, and he began renovating that property without obtaining the required permit from the City. In Spring 2002, Boone saw Greer renovating that property, and approached Greer, identifying himself as Alderman Troutman's assistant. Boone informed Greer that it was illegal to renovate a building without first obtaining a permit, but assured him that if Greer was willing to “take care of the office” then he could proceed without the permit. Greer understood that as a request for payment of a bribe to the office, but he chose not to pay it at that time. Within a week, Boone returned to the property with the police and attempted to have Greer arrested. The police, however, refused to arrest Greer for the failure to obtain a permit. A few days after that incident, Greer went to Troutman's office and spoke with Boone, who informed him that for a $10,000 cash payment he would be allowed to proceed without a permit. Greer negotiated that amount down to $8,000, and paid it out of drug proceeds he had obtained as a drug dealer. He later received a receipt from Troutman's office for a “campaign contribution” in an amount significantly less than the $8,000 he had provided. After paying the bribe, Greer was able to proceed with the renovation of the property unhindered and without any permit.
Boone requested a second payment from Greer in Spring 2003. At that time, Greer had completed the renovation of the property, and intended to use the first floor as a hair salon. He discovered, however, that it was necessary to get the property rezoned in order to use it for that commercial purpose. In order to obtain that rezoning, Greer testified that he needed a letter of support from the alderman's office. Greer met with Troutman, Troutman's sister and brother, and Boone at the office. Boone then stated that in order to obtain the letter Greer would have to pay $15,000 to the office. Greer again negotiated a lower amount, this time $12,000, and subsequently made two cash payments of $6,000 each. The day after making the second payment, Greer retrieved the letter of support from the office.
As part of the procedure for obtaining that rezoning, Greer sent a mailing to the neighbors in the area informing them of the request. That mailing and the scheme that it furthered forms the basis for the mail fraud conviction.

Up in Chicago, Troutman is best known for saying "Well, the thing is, most politicians, most alderman, are hos."

Thursday, February 17, 2011

The continuing saga of Chicago corruption

We are following the trail of wrongdoing by a Chicago Alderman, Arenda Troutman, involved in selling political favors to anyone who could pay. These incidents are detailed in a recent 7th Circuit case, US v Boone. Here's another snippet:

In August 2004, Kalpana Plomin sought help from the alderman's office. She had started a business called Homes with Heart, a non-profit organization which sought to renovate dilapidated buildings to provide affordable housing for low-income residents. She was interested in purchasing a large building at 4758 South Marshfield and converting it to a 12-unit apartment building. The property was zoned for use as a single family home or two-flat, and therefore she sought Troutman's support for a zoning change before she proceeded with the acquisition of the property. She met with Alderman Troutman and approximately 6 or 7 other persons in Troutman's office, explaining her request. . . . At the end of the meeting, Troutman expressed enthusiasm for the project, and told Plomin that a member of her staff, Reverend Gregory Hall, would escort her from the office and explain the “political things” that Plomin would need to do in order to obtain the support. Hall informed Plomin that she had to make a campaign contribution of $1,500 in order to obtain a letter of support from Troutman. Plomin ultimately decided against paying that money, and she did not obtain the letter of support. As a result, Homes with Heart did not obtain that property for its low-income housing.

By the way, the Alderman pled guilty to two counts of the indictment brought against her.

Wednesday, February 16, 2011

Corruption in the Building Code and Zoning Process

A recent 7th Circuit case exemplifies the corruption that often complicates and vilifies the building code and zoning process. An alderman from Chicago named Troutman was involved.

In December 2003, James Pattison sought a zoning change and alley access for a property he was developing on Michigan Avenue. He met with Troutman and a man whose name he could not recall in order to seek Troutman's support. At that meeting, Troutman handed Pattison a stack of tickets for a fundraising event for her campaign. Pattison stated that he would do his best to sell the tickets, and Troutman told him that he had already bought them. Pattison understood that to mean “that if I wanted to get what I needed to get done for my building, I was going to have to purchase these tickets.” There were 50 tickets at $100 each, costing him a total of $5,000. Pattison issued three checks totaling $5,000 after being instructed by someone in Troutman's office as to how to fill out the checks. Once the checks were cashed, Pattison received the letter of support from Troutman.

I'll add some of the other incidents over the next few days. The real concern is that this is most likely only the tip of the iceberg. And certainly, even if it's not, most believe that it is.

Monday, February 7, 2011

Depot Property v Town of Arlingotn

The Tennessee Court of Appeals recently released an interesting new opinion concerning zoning changes. In Depot Property LLC v Town of Arlington, the Court of Appeals addressed several interesting issues concerning negative recommendations of municipal planning commissions and the effect on a vote by the local legislative body. We’ll get to that in a moment.

Perhaps more importantly, the court somewhat astonishingly concludes that this case was properly brought as a common law writ of certiorari. The court was evidently persuaded by the fact that the local zoning ordinance required both the Planning Commission and the Board of Mayor and Aldermen to make specific findings that  (1) the zoning amendment is in agreement with the general plan for the area, (2) the legal purposes for which zoning exists are not contravened, (3) the zoning amendment will not have an adverse effect on adjoining property owners unless the adverse effects are outweighed by the overwhelming public good, and (4) the zoning amendment will not benefit some property owners materially to the detriment of the public as a whole. But these four “requirements,” if such they can be called, appear in virtually every zoning ordinance across the state of Tennessee. More importantly, these so-called requirements really do not bind the local legislative body in any way.

Take a look at them. The first is that the proposed zoning amendment must be consistent with the general plan. But state law does not require the local legislative body make decisions “in accordance with a comprehensive plan.” In fact, the Court of Appeals has already looked at a city charter provision was substantially similar language and decided that it did not apply in this way (Family Golf, cited in the opinion). The general plan only offers a point of view as to how the city will develop; it is simply not binding on the local legislative body and the Court reiterates that holding in this case. Since the Court of Appeals concludes that the local legislative body has the power to override the recommendation of the planning commission which is usually based on the general plan, this first of the four requirements really is irrelevant. The local legislative body does not need to make a decision which is in accord with the plan. This may be bad planning, it may be bad law (and certainly I have criticized it myself on many occasions), but it is the law of the state of Tennessee.

The second requirement, that the legal purposes for which zoning exists or not contravened, is so vague as to be entirely meaningless. Can anyone really explain what that means?

The adverse effects on adjoining property owners are the third requirement. Was there really any proof concerning that in this record? A thorough and careful reading of the opinion reveals none. I would suggest that what was really going on here is that under the standards of a declaratory judgment action, the local legislative body didn’t have to consider any of these things. It can do basically what it wants under these circumstances. These requirements are not requirements at all; the legislative body surely does take some of them into account in making the decision, but if it fails to find the presence of one or more of them, it may nevertheless pass the zoning change.

The fourth requirement is that the zoning amendment will not benefit some property owners to the detriment of the public as a whole. And what is that other than a legislative judgment to be made by the local legislative body? These are not administrative requirements such that an appeal must be made pursuant to the common law writ of certiorari. Rather, these are general guidelines which are considered by local legislative bodies as it deems appropriate.

Compare the language of most planned unit development zoning ordinances: they are much more detailed and much more specific about what must be done. The language at issue here is simply not sufficient to give rise to review by common law writ of certiorari. The court did not seem to consider this in any detail, and perhaps the parties both agreed that that was the way that the case should be taken up. Certainly, there is a strong argument that whenever the local legislative body is considering one or two parcels of land to rezone, or even if there are more parcels, but of a very small size, that the rezoning should be administratively considered rather than legislatively. However, the Supreme Court has not adopted that argument and in fact  pretty much rejected it in Fallin v Knox County. The conclusion here that these four extraordinarily general and ambiguous factors somehow convert what should be a declaratory judgment action into a common law writ of certiorari is simply incorrect. A comparison of the administrative regulations for any PUD, including the granddaddy case, McCallen v Shelby County, reveals the extraordinary difference between the level of specificity in PUD regulations versus general zoning amendment concerns. But PUDs almost always have an extraordinarily high level of regulation. Usually, in the cases I’ve been involved in, 15 to 25 pages are devoted exclusively to planned unit development. The four very short, general, and ambiguous factors found here, and found in most other zoning ordinances across the state, are simply insufficient to convert an appeal such as this one from a declaratory judgment action to a common law writ of certiorari

Setting aside the procedural issue, the court’s conclusion on the applicability of the override proviso certainly is correct. Tenn. Code Ann.  § 13-7-204 provides:

The zoning ordinance, including maps, may from time to time be amended; but no amendment shall become effective unless it is first submitted to and approved by the planning commission or, if disapproved receives the favorable vote of a majority of the entire membership of the chief legislative body.

In this case, the local legislative body was composed of seven members. To the members were asked to recuse themselves by the proponent of the amendment which they did. The remaining five members, split the vote with three voting in favor and two voting against. But that leaves the problem of Tenn. Code Ann. §13-7-204 quoted above. The last phrase of the statutory provision requires that if the proposed amendment is disapproved by the planning commission, that it received a favorable vote of a majority of the entire membership of the chief legislative body. Not a simple majority as would be needed if the planning commission recommended favorably but instead the favorable vote of the majority of the entire membership of the chief legislative body. Since the Arlington local legislative body was comprised of seven members, and since the planning commission recommended against the amendment, the proponent had to get four of the seven votes of the entire membership. He received only three votes, good enough for a simple majority of the members present and voting on the night in question, but one short of a majority of the entire membership of the local legislative body as required by the statute.

The author of Tenn. Code Ann. §13-7-204 was Alfred Bettman, the extremely influential zoning lawyer from Cincinnati. As it happens, Mr. Bettman contributed to a book which was published in 1935, just a year after the Tennessee General Assembly passed the statute which we are reviewing. In that book, entitledModel Planning Laws, Bettman provides his preferred forms for zoning and planning  legislation. Section 4 of the Immiscible Zoning Enabling Act, found on page 82, reads as follows:

The zoning ordinance, including the maps, may from time to time be amended; but no amendment shall become effective unless it shall have been proposed by or be first submitted to and approved by the planning commission of the municipality, or, if disapproved, shall receive a favorable vote of not less than two thirds of the entire membership of Council.

Notice the extreme similarity to the version adopted by the Tennessee General Assembly, except for the omission of the language concerning a two thirds majority. The Tennessee General Assembly took out the language requiring a two thirds majority and required simply a majority of the entire membership of the Council. Bettman specifically mentions the two thirds vote requirement on page 63, indicating that the supermajority vote is recommended for the same reasons as he previously discussed with regard to the location of public Works and uses. We now know that provision as the “mandatory referral” provision of the Tennessee zoning and planning statutes. Here’s what Bettman has to say about the two thirds majority requirement in that context:

This [model] form provides that when the report of the planning commission is adverse to a proposed location or use, a two-thirds vote of the Council or determining body is required to overrule the commission’s disapproval. The issue between a majority or a two thirds requirement is often stated to be whether the planning commission should be purely advisory or should have more than advisory powers. This is not an accurate way to state the issue. In the form here presented, the planning commission is not granted the power to decide finally on any question of location or extent of a public structure or use. That power resides in the legislative or administrative departments. The planning commission’s function is, in the last analysis, purely advisory; and this is not less true when a two thirds vote of the Council is necessary for decisions adverse to the advice of the commission. The two thirds requirement is simply a device for bringing about a more careful consideration of planning problems then these would be apt to receive it the ordinary majority control decision; and it could be stated that the experience of American cities has verified this, for the use of planning techniques in the recognition of planning principles have prevailed to a greater extent where this two thirds majority is required in the legislation and where is not. We are conceding of planning not as a matter of councilmanic way more fancy to be taken up or lay down as the clamor or fashion of the moment may favor, but as a basic step in the process of legislating about determining the allocation of the public and private uses of the land within the municipality.

One can certainly second-guess Bettman’s conclusion that a two-thirds majority would prevent in some way councilmanic whim or fancy from carrying the day. One only has to look at the Metro Nashville zoning changes, to understand that the two-thirds majority is no panacea. On the other hand it is clear that Bettman wanted somehow to push the ultimate decision maker to seriously consider the recommendations of the planning commission. The Tennessee general assembly did not believe that the two-thirds majority vote was lenient enough, but they did require a majority vote of the entire legislative body.

And, in a case such as the one here, where there is a negative recommendation by the planning commission, and the vote of a seven member legislative body is split 3 to 2 in favor, with two abstaining, the result must be, given Bettman’s point of view, that the zoning amendment does not pass. Not only was the court correct concerning the interpretation of the state statute, but there was a fundamental public policy which Bettman was attempting to acknowledge and enforce: careful consideration of any zoning amendment which the planning commission recommended against, and which also presumably meant that either the land use plan did not contemplate.

There is one final aspect of this case which seems at odds with the policy underlying state land use legislation. The proponent of the amendment argued that the plan was a “growth plan” within the meaning of Tenn. Code Ann. §6-58-107. First, although the court simply assumes that the General Plan of the municipality is the same as a growth plan, generally there are separate documents. In fact, usually, but growth plan is much less precise, and very vague and general. However, having assumed that the municipal General Plan was the growth plan, the court then turned to the language of the Smart Growth Statute, which mandates consistency with the growth plan, and concluded that there was no real inconsistency. That the fact that the area of the town which was the subject of the amendment did show in the plan that should be rezoned commercial did not specify the time frame within which that would happen.

Respectfully, it seems that if the plan itself does not indicate that the change should take place some time in the future, then that change is appropriate immediately.