Agenda - Planning Commission - 01/07/2010

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Detrimental nonconformities are those that have a negative impact on the health and safety of the public. Examples include uses in- volving hazardous materials, such as gasoline stations in single-family neighborhoods; uses that produce significant noise, such as body shops or paint shops; uses that have been deemed incompatible, such as adult entertain- ment establishments near schools; or uses that have large trip generation characteristics, such as drive-through restaurants. Detrimental nonconformities clearly have the potential for -harm and should be subject to limitations leading to their eventual removal or not a single concept-to be routinely cited as the basis of regulation. Rather, health and safety are the basis of protection from injury, illness, danger, and other harm. Public wel- fare is concerned with nuisance, economic interests, convenience, and community character. While benign nonconformities may have some negative impact, the local govern- ment has determined that the negative impact is small and does notthreaten the public health and safety. For example, the amount of deviation from a dimensional requirement may be so small as to be unnoticeable, such as an encroachment o'f only a few inches into compliance with all remaining development standards. Such exceptions are not consistent with the idea that the nonconformity should be eliminated eventually. o Prohibiting or limiting a change of use except when the new use is considered con- forming or less nonconforming, often based on development standards to support the use. In this latter situation, a good example is parking. When the use requires the same or fewer park- ing spaces, the impact from the change of use is not increased. . Requiring the combination of adjacent non- conforming lots. When a lot has less area than m -c o .0 o a; c ~ o > .0 o o ~ ~ modification into compliance with current stan- dards. This concept formS the basis for most regulation of nonconformities. Benign nonconformities. When develop- ment fails to meet current design standards but the nonconformity is not harmful, there is little or no need to limit the development from expansion, redevelopment, or other activities. Local governments often struggle with this issue because, in most cases, all nonconfor- mities are treated alike, The authors recom- mend that local governments establish a second category of nonconformities-benign nonconformities-with different standards -that do not necessarily lead to eventual re- moval of the nonconforming situation. A non- conformity is considered benign when it does not have a negative impact on the health and safety of the public but may have a negative impact on the public welfare. Examples may include a lack of landscaping, too few parking spaces, or minimal devi.ations from dimen- sional standards. The separation of nonc,?nformities into detrimental and benign is based on the idea that "public health,safety, and welfare~' is 56 a required setback. A benign nonconformity can also arise from inconvenience, such as too few p~rking spaces. The local government should categorize a nonconformity as benign when there is no need to eliminate it to pro- tect the public from harm. CURRENT APPROACHES TO REGULATING NONCONFORMITIES Most regulation of nonconformities is based on the eventual elimination of the situation. This approach leads to regulations such as the following: · Prohibiting or limiting the expansion of a building when the building itself is noncon- forming or when the building, even though meeting the development standards, houses a nonconforming use. The idea is that, while routine maintenance is permissiole, such a limitation will prevent continued investment into a situation that should not exist. Howe\!er, many local governments allow a building's expansion if it does not increase the degree of nonconformity. An example is a building with a nonconforming front setback where an expan- sion is proposed to the rear of the building in required for development, and the same owner has two or more contiguous lots, a typical regulatio,n requires the lots to be combined to create one conforming lot. On the other hand, many regulations allow the development of a lot that is nonconforming asto area, provided that all other standards for development are met. This latter situation is a good example of the concept' of a benign nonconformity. o Providing that a discontinued nonconform- ing use cannot resume. Local governments set a time limit on the ability of an owner to resume a nonconforming use. Typical regula- tions allow six months or one year of cessation; at the end of this time only a conforming use is permissible. During the latest economic downturn, however, many nonconforming uses went out of business. To avoid empty proper- ties and encourage another similar-even if nonconforming-business to move in, some local governments have looked forways to extend that time limit., One way is to consider the use "continuing" if the property is actively offered for sale or rent. o Providing that a nonconforming building that is vacantfor a specified period of time is ZONINGPRACTICE 11.G9 AMERICAN PLANNING ASSOCIATION Ipage 4