Agenda - Planning Commission - 10/04/2012

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apartments. Predictably, residents often objected that the redevelopment was in- consistent with the character of their neigh- borhood. While downzoning is a logical response, all existing higher -intensity uses would then become nonconforming. This was a problem for about 25 percent of such areas. However, if the downzoned district permits duplexes or apartments as limited uses, provided they existed on the date of the downzoning all existing units remain conforming uses and can be remodeled or rebuilt. This approach increases the likeli- hood that residents will accept the existing units, while preventing teardowns that change neighborhood character. A similar approach can be used to ad- dress corner stores, restaurants, or even bars that existed prior to the zoning and have continued as nonconforming uses. Despite the convenience these uses provide to residents, their value has depreciated be- cause of the nonconforming status. Corner stores are a particular problem because it is difficult to convert the ground floor to residential use. As a consequence, they sit vacant, or the lower floor is abandoned, creating an eyesore. All of these uses could be made limited uses in the district, with conditions that the buildings not only had to be built prior to a specific date, but that they also had to have been built for commercial use. For some uses such as restaurants or bars, additional criteria could be added to prevent a neighborhood -serving use from becoming a regional use involving late -night music or street activity. In this strategy the neighborhood is protected from the intro- duction of high -intensity commercial uses or nuisances while still permitting local com- mercial services. If formerly nonconforming uses can invest in improvements, it en- hances the value of the neighborhood. Mitigation In theory nonconforming uses are supposed to disappear. In fact, nonconformities may continue for decades. When this happens, the nonconforming use often declines in value and appearance because the owner is unable to obtain financing for improve- ments. For this reason, communities should allow for conditional approvals to provide a means of mitigating nonconforming uses. A landowner can apply for mitigation via a conditional use. This requires a hearing to be held to examine the current effects of the use and to recommend improvements to make the use a better neighbor. Converting a nonconforming use to a conditional use can remove the cloud that discourages investment and maintenance while protecting the neighbors. An example of this is a tire store on an arterial highway in a residentially zoned neighborhood. It has been nonconforming for decades and re- mains a viable business. For most residents, who have lived with it for years, the store is only a minor nuisance. The conditional use process would allow the owner to propose expansion of the use while providing things like screening walls or landscaping, facade renovation, or ensuring that tire work occurs indoors. Subject to a hearing that allows the neighborhood to review the proposal and suggest mitigation measures that improve the neighborhood, a conditional use permit can be issued. ADDING FLEXIBILITY Why are codes so rigid? First, mandating specific lot area, frontage, use, and other standards is easy to write or illustrate in drawings. No thought needs to be given to a problem with a particular property or to conflicting goals. One-dimensional thinking is easier than systemic thinking. As soon as one identifies a series of objectives that zoning is supposed to address, one needs to understand how all elements of design interact. Secondly, there is complexity as- sociated with flexibility. If something is a problem, it is easier to throw the baby out with the bathwaterthan to write a section that identifies exceptions to a prohibition and rules governing permitting the design to be used. There are two basic approaches to dealing with rigidity: providing targeted flex- ibility and providing general flexibility. Targeted Flexibility Using Modulation As an alternate to variances or conditional uses, modulation is a tool that can ad- dress most flexibility issues. A great many regulations are written to eliminate a specific problem, by prohibiting the use of a design element or setting a limit. Unfortunately, this may mean prohibiting something that, while generally undesirable, can be a valuable tool in specific conditions. Providing flexibility requires looking beyond a specific problem and determining where or when the tool might be useful. Modulation provides staff with rules that permit modulation of the standards with- out having to appear before the zoning board. For example, developers used flag lots in the past to avoid building a street. In extreme cases there may be two rows of lots taking access off a street, resulting in nu- merous additional curb cuts and potential hazards. Consequently, most ordinances prohibit them. However, there are several situations where flag lots actually could re- sult in better planning. As noted above, it is cumbersome and complex to write a series of exceptions to the prohibition. A better so- lution is a modulation article containing the conditions where the rules can specifically be relaxed, eliminating the need for a vari- ance. Two exceptions illustrate the point. A flag lot that eliminated access on a collec- tor road would be desirable. Another case would be using a shorter cul-de-sac with flag lots accessing several lots to reduce the disturbance of a wooded area created by a longer cul-de-sac. A modulation chapter allows for simple base regulations while providing more complex rules in another article that is only used by those needing them. Rigid limits on block, cul-de-sac, or town house group length, or prohibitions on trapezoidal lots, are examples of regulations where flexibility is desirable. The key is providing staff with specific rules for the granting or denying of the modulation. Thus the areas of flexibility are pre -identified as are the rules for grant- ing the flexibility. Targeted Flexibility Using Pattern Books Because poor design may make a unit unde- sirable, a means of permitting good design while avoiding the undesirable is important. For example, to avoid the monotony of row houses, communities often require facade offsets. Unfortunately, the same pattern of setbacks repeated on ioo or more units is equally monotonous. The uniformity of front setbacks makes great sense in cities where blocks are platted and uniformity is desir- able. However, for hamlet, village, small traditional neighborhood, or estate develop- ments this can be a severe design restriction. A pattern book includes the site plan but also all the essential design elements, build- ing types, lot standards, setback, facades, and all the design details. It is akin to a final planned development approval in that it locks the developer into building what has been shown in the pattern book submission. The conditional approval process used by most local governments includes review criteria that have nothing to do with design. Worse, they introduce nondesign issues into the approval process, most of which can be used to deny the approval, lower density, or otherwise frustrate a good design. The ZONINGPRACTICE 6.12 AMERICAN PLANNING ASSOCIATION i page 5