Agenda - Planning Commission - 01/07/2010

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· Prohibit any addition of site features, unless such features actually reduce the nonconformity. An example of this would be adding parking when part of the nonconformity is that there are too few parking spaces. Another example is the addition oflandscaping, eithertothe parking lot or the entire site, when part of the nonconformity is failure to have required landscaping. . Prohibit any extension of the use to other parts of buildings or the site that were not occu- pied by the nonconforming use at the time the regulations changed. · Prohibit a ch~nge of use to any use that is not permissible in the zoning district. · Establish the shortest feasible time for va- cancy before new occupancy requires compli- ance with the current standards. · Establish the strictest feasible limit on re- construction after a disaster to ensure that the reconstruction conforms to current standards. · Establish the strictest feasible limit on re- construction following voluntary demolition to ensure that the reconstruction conforms to cur- rent standards. This procedure ensures an opportunity for public participation and allows forthe ad- dition of conditions to approval. For example, a property that is nonconforming due to a de minimis setback deviation and lack of adequate landscaping is eligible for expan- sion. However, the board can require that the landscaping be brought to current standards as a condition of approval of the building ex- pansion.The setback nonconformity continues unchanged. The public welfare is improved and the property owner can make economic use of the property. Thus, appropriate regulations for benign nonconformities would do the following: . Allow expansions of the princip.al building, accessory buildings, or site features, provided that the expansions are conforming to current standards. · Allow the addition of site features that con- form to current standards. . Allow extension of the use to other parts of buildings orthe site. Increasingly, we see the need to focus on impact, character, compatibility, and urban form-which means that a nonconformity may not be unwelcome in a neighborhood. In contrast, the local government may determine that a benign nonconformity is not harmful to the abutting properties or surround- ing neighborhood, but is contrary to the public welfare in some way. Just as a variance is a pro- cess to authorize a deviation from development standards, recognition ofa benign nonconfor- mity authorizes a deviation from development standards and does not require elimination of the nonconformity. We further recommend that changes to benign nonconformities should not be permis-' sible by right, but rather must be authorized by a board of adjustment, similar to the process for authorizing a variance. The justification for granting a variance is different than the justifi- cation for changes to benign nonconformities. Therefore, a change to property categorized as a benign nonconformity should not be authorized , ' as a variance. However, we recommendthatthe process for the two situations, variances and modifications to benign nonconformities, could be similar. · Allow a change of use to a permissible or conditional use in the zoning district. · Allow vacancy of the property for any period of time, provided that the property is, properly maintaifled to ensure safety, . Allow reconstruction to restore existing con- ditions following a disaster. The idea of categorizing nonconformi- ties as detrimental and benign is a new way of labeling nonconformities, but it is not an altogether new idea. For example, Cape Canaveral, Florida, allows some noncon- formities to be modified through a special permit. In establishing.this provision, the city recognizes that some nonc~nformities do not have a detrimental impact on the com- munity. San Leandro, California, has a list of exceptions to nonconformity provisions along with an overlay district for n'onconform- ing situations. Identifying exceptions to the nonconformity provisions is a typical method of addressing benign, or nondetrimental, nonconforming situations. Lowndes County, Georgia, also has an overlay district to avoid creation'of nonconformities, although it is not labeled a nonconforming overlay, as is the case in San Leand,ro. Lompoc, California, clas- sifies nonconformities into groups A and B to distinguish detrimental from nondetrimental situations. CONCLUSIONS This article makes the case for two categories of nonconformities-detrimental and benign- with separate regulations for each category. While the initial basis for nonconformities continues to exist, many local governments are seeking ways to retain and even encour- age the continuance of nonconformities that are not harmful or unsafe. The distinction between nonconformities that are detrimental and destined for elimination and noncon- formities that are benign and even desirable renders the regulations more meaningful for property owners and easier to administer by the local government. VOL. 26, NO. 11 Zoning Practice is a monthly publication of the American Planning Association. Subscriptions are available for $85 (U.s.) and $110 (foreign). W. Paul Farmer, FAICP, Executive Director; William R. Klein, ,AICP, Director of Research Zoning Practice (ISSN 1548-0135) is produced at APA. Jim Schwab, AICP, and David Morley, AICP, Editors; Julie Von Bergen, Assistant Editor; Lisa Barton, Design and Production. Copyright <92009 by American Planning Association, 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603. The American Planning Association also has offices at 1776 Massachusetts Ave., N.W.. Washington, D.C. 20036; www.planning.org. All rights reserved. No part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the American Planning Associ~tion. Printed on recycled paper, including 50-70% recycled fiber and 10% postconsumerwaste. ZONINGPRACTICE 11.09 AMERICAN PLANNING ASSOCIATION Ipage 7 59