Agenda - Planning Commission - 01/07/2010

Home

'0 " it can decide up front which situations are det- rimental and which, even if rIOt sought out, are at least benign in their impact on the neighbor- hood. Again, the distinction is that detrimental nonconformities are harmful to the public health and safety while benign non conformities have a potential negative impact on the public welfare. Examples of benign nonconformities include: . De minimis (Le., negligible) deviations.from a dimensional requirement, such as encroach- inga few inches into a required setback, with no resuiting negative impact on neighborhood character. . A lot that fails to meet a dimensional or area . requirement, but the deviation is small enough that the shortfall does not affect the neighbor- hood character. .' A change in the list of permissible or con- ditional uses, or eliminating an existing use that is not, in fact, objectionable. It may seem that the change in listed uses is an indication that those not listed are now objectionable. However, unless every existing lot with its existing use is examined during revision to the list of permissible uses, it is often the case that uses become nonconforming not as a matter of policy, but as a matter of oversight. Often, a use considered objectionable at adoption is no' longer considered objectionable in later years as times, customs, and lifestyles change. ' o Nonconformities arising from a government action, such as the loss of a required front yard for road widening. While the district regula- tions may require the yard, most properties along the road have the sam@ situation, so the encroachment does not negatively impact that portion of the neighborhood. 58 o De minim us deviations from a standard, such as required parking spaces, which do not create a negative impact on the surrounding area. A local government must decide for itself the degree of deviation from a standard that is de minimis. It must also decide how to define the character of a neighborhood and how much change to a lot, its use, or development would have a negative impact. All such determina- tions are based on impact to public welfare and not public safety or health, where a stricter standard applies. Such a determination is not unusual for a local government, as the consideration of impact on neighborhood character and deviation from required standards is routine in variance requests and consideration of con- ditional uses. In fact, we believe that benign nonconformities are similar to variances in that the end result authorizes a deviation from the standards in a manner consistent with the public interest. DISTINGUISHING BETWEEN DETRIMENTAL AND BENIGN NONCONFORMITIES IN THE REGULATIONS Many local governments adopt regulations for nonconformities and include exceptions to those regulations, as described earlier. This approach does not establish clear bases forthe exceptions, which are often added on a piece- meal basis to address a particular situation. We . recommend the creation of two categories of nonconformities at the outset. Such distinctions make it clear when the nonconformity must be eliminated to protect the public health and safety and can provide a basis for amortizing the nonconformity. The second category, benign nonconformities, still requires specific consider- ation, but is not intended for elimination. Regulations that are adopted after a delib- erative process can clearly describe those situ- ations which are both nonconfonming and detri- mental. In such cases, it should be the policy and goal of the local government to eliminate such nonconformities. A detrimental nonconformity is presumed to be harmful to the abutting proper- ties, the surrounding neighborhood, orthe com- munity as a whole. If this is the case, regulations should clearly lead to elimination of the noncon- fonmity forthe protection of the public. Therefore, appropriate regulations for detrimental nonconformities would do, the following: . Prohibit any expansion of the principal build- ing, accessory buildings, or site features. Con- tinued investment in the property is contrary to the intent to eliminate the nonconformity. ZONINGPRACTICE 11.09' AMERICAN PLANNING ASSOCIATION Ipage 6