HomeMy WebLinkAboutItem III
PLAN COMMISSION STAFF REPORT JANUARY 4, 2011 ITEM III: PROPOSED TEXT AMENDMENT TO ZONING ORDINANCE CHAPTER 30, SECTION 30-4 NONCONFORMING USE REGULATIONS GENERAL INFORMATION Applicant:
Owner: Department of Community Development N/A Actions Requested: The City Department of Community Development requests review and approval of an amendment to the City of Oshkosh Zoning
Ordinance repealing and recreating Section 30-4 Nonconforming Structure and Use Regulations, which is a portion of Article II: General Provisions. Applicable Ordinance Provisions: The
Zoning Ordinance, in Section 30-8, establishes the ability of the Common Council on its own motion or on petition, after first submitting the proposal to the City Plan Commission to
amend, supplement or change district boundaries or the regulations herein. ANALYSIS The purpose of revising the Nonconforming Structure and Use regulations at this time is primarily
to address concerns brought forward by the County Judicial System during regular enforcement duties of the City's Zoning Office in regard to the clarity of the regulations. Over the
last several years, zoning interpretations of the nonconformity code have been directed to the Board of Appeals and have also been challenged in court in which it was suggested in the
ruling that the code be redrafted or amended to be clarified and updated as well as reflect and define mechanisms and practices used during regulation and enforcement actions. Over the
past year, numerous interdepartmental meetings have taken place in the process of revising the code and a workshop was held with the Plan Commission on December 7,2010. All Departments,
including the Attorney's Office, are comfortable with the language as presented in the draft document. It is important to be aware that the items listed in this staff report are a summary
of those that are either new or are a modification from the existing regulations and therefore act only as a supplement to the attached DRAFT Code Section.
Nonconforming Structure and Use Regulations Section Changes See attached Proposed New Section 30-4 Nonconforming Structure and Use Regulations dated 12/08/1 0 OveralllUniversal Changes
(1) The code section has been organized and reformatted for ease of use and understandability. Sections have been reorganized and are now separated based on content with all subsections
being consistent in appearance, information placement and numerology. (2) Changed much of the language to make the regulation more understandable and defensible from a legal standpoint
as well as more comprehensible to the common user or citizen. (3) Added purpose and intent to illustrate the core concept behind the regulation of nonconformities within the City. This
allows readers to understand when these regulations apply and helps to make them more understandable. (4) Removed the separate section on nonconforming parking/loading facilities as
they are defined in the zoning code as structures and are regulated within the nonconforming structure section of the code. Page 1 Section 30-4(A)(1) and (2): Purpose and Intent (1)
Added a new Purpose and Intent Section to explain the function of this code and the objectives of the regulations within. Section 30-4 (B)(1)(a): Definition of Alterations (1) Added
a general definition of "alterations" with specific reference to structural elements to clearly explain what is included. Page 2 Section 30-4(B)(1)(d): Tracking (1) Dictates that the
City is responsible for keeping records and specifies what data is to be tracked. Section 30-4(B)(3)(a),(b) & (c): Relocation (1) New section defining and regulating the relocation or
repositioning of nonconforming structures on the same or new site. Generally dictates that a principal structure can not be moved to a new site or relocated on another site unless the
site is compliant with other code requirements including placement, lot coverage, required parking, etc. Page 2-3 Section 30-4(B)(4)(a) & (b): Definition of Maintenance & Repair (1)
New section that explicitly outlines what is considered ordinary maintenance and repair for structures, including off-street parking and loading structures. Page 3 Section 30-4(C)(2):
Enlargement of Use (1) Updated description of what is considered an enlargement or increase in a nonconforming use. Item /l1-Z.O. text amendment nonconforming use regs 2
Section 30-4(C)(4): Moving a Use (I) Regulation stating that a nonconforming use may not be moved from its current location on an a lot. Section 30-4(C)(5): Discontinuance of Nonconforming
Use (l) Addition to an existing regulation that serves to outline and define what documentation is necessary to prove a nonconforming use has been continuously maintained. RECOMMENDA
TION/CONDITIONS Based on the information contained in this report and the content of the draft document, staff recommends that the Plan Commission recommend that the Common Council repeal
the existing Zoning Code Section 30-4: Nonconforming Structure and Use Regulations and recreate it is as submitted. Item 11I-Z. O. text amendment nonconforming use regs 3
PROPOSED NEW SECTION 30-4 SECTION 30-4 NONCONFORMING STRUCTURE AND USE REGULATIONS (A) (8) Purpose and Intent (1) The purpose of this section is to provide for the regulation of legal
nonconforming structures and uses, and to specify those circumstances and conditions under which nonconforming structures and nonconforming uses may be continued or when they shall be
discontinued. (2) It is recognized that there exists withif\llll~~ning Districts certain buildi.ngs, structures and uses which ~~ri¥ll~tvful before the ad?~tion of this chapter or amendments
theretoll'~l\1~};:hwould be prohibited, regulated or restricted under the termMI~f t~isll~~apter. It is the intent of this Chapter to permit nonco~fqr~i~g buildiWds:'lstructures or uses
to c.ontinue until t.hey are l~I~B~ed, but not l~t~lh~ncourage their continued use or eXlstenc.~llllllj l' 11l!!lllhl! Nonconforming Structures 'flltllih ,illllllill' 'll' ! (1) Alterations
oIIlIlIIUI" "IIIIIIIII!::" , '111\:'! lJ!illt, . 'IUlh . (a) Alterations shall be;qefln'ec!Jas,belng on~10r more of the following: (i) Adding, rerNo~ing,'t~~~gil;1g ~rll!t~arranging
the supporting nfh. . ,jh'>od:i~p~ 1;;' . mel)'lbe(s of anexlstlngl;structurre;;' such as load beanng walls, qQ!~h,m~:lk~ams, gri'~~~r~!ibrint~righ:~artitions. lilllOi)) PUlveri~lqg
andJC)~lr~movingasphalt or concrete from off-street dlll:::parking ~~~i!oading f8Rilities as well as access dri~es to the extent !1!HPf,expo,rlJ;!:g.lW11.l?acsOe !~Fsewhether or not
repaving of such area 's . '00 .. 'ORR~L1wl!!iljHdltHHlIllll!Hll}ll! illl!llWlIllli. (iii)ljf7uJltdepth reclamation and mix and mill in place processes ,pi f'iiiHl!llmat 'p~fv,~rize
the parking facility surface and blend it on site with <ojl I . !ft\~ existing,aggregate base. illhil (b) The;~~latio~!~~~ nonconforming structure to the extent of more than 'lllliithfifty
percen~l~pO%) of its current assessed value may be reconstructed 'll11s'ljbjectto t.~E1;foliowing: q1Il'1111\wlwWealteration of a nonconfo:mi~g .struc~ure.~hall conform to the llhll~~qUlred
yard setbacks of the district In which It IS located. \;l,~ii) The alteration of a nonconforming structure shall conform with the other requirements of the district in which it is located
including, but not limited to, maximum lot coverage, off-street parking and loading facilities and landscaping standards. (c) The alteration of a nonconforming structure to the extent
of less than or equal to fifty percent (50%) of its current assessed value may be altered provided that the nonconforming structure does not encroach any further into the established
nonconforming yard setbacks or required yard setbacks. Page 1 of 4 12/8/10
(d) As requests are received for alterations to nonconforming structures, a record shall be kept which lists the nonconforming structures, their assessed value, and the cost of those
alterations which have been permitted. Such records shall be cumulative and track the cost of the alterations for the lifetime of the structure. (2) Additions (a) An addition shall be
defined as anything that increases the size of a building or structure in terms of site coverage, height, length, width, or gross floor area. ' ii, ,,,Will BW (b) Additions made to nonconforming
struct'yr~bihay be permissible in the front, side, rear and transitional yards su~W{ft~lme following: (i) The addition shall not furth~11!Mncr(Y~:¢~injlto the established nonconforming
yard setbacksl.than the Mxisting nonconforming structure., ,,!'!ll"lP'hl ' '!ll! ,'jlllF j 'II!I'I" j, (ii) The addition shallii90:~form to all other reql]j}'l?jments of the district
in which it is 10G~fff~: ,111111 lillilili. (c) AdditIiIons shaII meet aII other-'!pIIrIlp;Y./?,1d9iplLs0 f thiIS Chapter, I.ncIud'mq, but not limited to, maximum lot cove'fMg~j,1off-street
parking and loading facilities and landsc~81In.rl·~,'I~tan~a",r"ds,. "111111,'1" Illrl!l! it Ill, (3) Relocation, , 'lilli', I; '1Illl!!IIIUI'jll". 'HIllllll (a) Relqd~tlg~II~!b:all
be ~~¥ilr\e'tHy~I!:n~I'r~I~~Si:ioningof a structure on its . ~{~~~t&" • ..~itP. ;X,L>:~; . site ,~ni'P0Vlng anY;j~~ructure~~i~nother site. d1l11i'dl!iHOj (b) ·~qiP!r.incipall~~~Gqtwe
shallli~~ moved in whole or in part to any other ,,,locatior\nRPJm:~I:s'afn~fio'rilar;W;!(HHer site unless the remaining principal Hll!H:~t,r;~~ture"'c9mplies with a1l11cW-tent code
standards or complies with all iI" nJlesll~1IatedlitRI" legal nonconforming uses. This subsection does not d II preclud~fjlljtlhe. ;rE11frPl~,. tion of accessory structures that comply
with all 'Ill! I current co:de standards. ; i)j:, , 'Ulll"W "iJq~ d~H "<li1!t;{C) The rela~,epstructure to be relocated to the new site shall also comply '11:«Hh all otn~r provisions
of this chapter, including but not limited to m?~imurD!H1P'tcoverage, off-street parking and loading facilities, and .",11. .ili.Il.!-land?i~Wl~lrigstandards. 'H'-(4) Ordinary maintenance
and repairs (a) Ordinary maintenance and repairs are defined as follows: (i) The repair or replacement of doors, windows, nonbearing walls, fixtures, heating and air conditioning components,
wiring, plumbing, siding, roofing or other nonstructural components. (ii) Overlaying an off-street parking and/or loading lot, which shall mean adding a layer of asphalt or concrete
to an existing off-street parking andlor loading lot. Page 2 of4 12/8/1 0
(iii) Resurfacing the asphalt or concrete of the off-street parking and/or loading facilities as well as access drives without exposing the base course and overlaying such area. (b)
Ordinary maintenance and repairs made to a nonconforming structure are permitted. (C) Nonconforming Uses (1) The existing lawful use of a structure or premises at the time of the enactment
of the zoning ordinance or any amendment thereto may be continued although such does not conformdlt81lthe provisions of this Chapter for the district in which it is 10cateqd~:~W~uchnonconforming
use shall not be expanded. Jtlllllllllllllllhih '4j.1J d~:<d (2) The nonconforming use of a structY!~~hsH~1I not be!~~ii~rged or increa~ed to occupy a greater area of lot, Ramel, Site,
structure itha,n was occupied at the time of the effective date,,9fHKls chapter. JiHHpl' (3) If no structural alterations ar~llm~de, a nOA1b1binfOrminugsi~IY~la structure may be changed
to another norigg~fP)~mIM~ruse of the same or a more restricted classification, as defined BY:l,fu.:o.·ri~d·inance appendix. Whenever . 'liP!!j". '1,,41, . a nonconforming 'u~J~lllhaj~
been 'c.~ja.(1ged to a more restricted nonconforming use, drt;~"Cdhf~n;Bmguse',!!s;[f~ihuse shall not thereafter be changed to a less restnctejd use:!]lllllll!! Jlhl!ll' dl11lIilii.h.
111lih .dilHllllllllIUlillll . . (4) No nonqonformlng use of a:::prern1seshall1l6e moved in whole or In part to any 0.)~,~¥lportio~118fl.the10t~I;~Mt.~oerl site than was occupied by
such use "jlllF lin, 'l'lll at tHeltime of the effective date, of this chapter. ill!ldlll!lh, ,/l!ilLl'II' lPl!lllli'l' 'll,lmhi.l .... (5) If a nOEl9!9.:9f~lmJngjus~l\9fl'a.j~tructureor
premises IS discontinued for a " lllllllR~nj9,d Ofit~~\y:€ (12) cons~~u~ive months, it shall be deemed abandoned .} Hil' anah~!?y. futL(~~I~se. of. th~ stru.ctur.e.or premises shall
con!orm to the l:!ll 00 regulatIOns for1itHe.district In which It IS located. Documentation shall be i:IW L providecmj~. the' pEblpertyowner and/or authorized agent when challenges qlHjlj,
j, to this prd~ision aNs'e documenting the nonconforming use has been it' .,continuousI'Yl:maintained over time. Potential forms of documentation :i~hall include'but not be limited to
utility bills; income tax records; business 1ft,$qsesilnDI~tings in telephone, business, or Polk directories; ad~b~i.s~:ments in dated publications; building, land use, or development
perrr1it$!;"insurance policies; leases; dated aerial photos; insurance maps that identify use or development, such as the Sanborn Maps; or land use and development inventories prepared
by a government agency. (6) If a premise contains an existing nonconforming use, a conforming use shall not be permitted on that premises until such time that the nonconforming use is
discontinued or brought into compliance with the provisions of this Ordinance. (7) When a structure containing a nonconforming use is damaged by fire, explosion, or act of god to the
extent of more than fifty (50) percent of its Page 3 of 4 12/8/1 0
current total assessed value, the use shall be deemed abandoned as outlined in paragraph (5) and shall not be restored except in conformity with the regulations of the district in which
it is located. (8) Passage of this Ordinance in no way legalizes any illegal uses existing at the time of its adoption. Page 4 of 4 12/8/1 0
EXCERPT FROM EXISTING ZONING ORDINANCE SECTION 30-4 NONCONFORMING USE REGULATIONS (A) Nonconforming Uses ( 1) The existing lawful use of a structure or premises at the time of the Moved
to enactment of this Ordinance or any amendment thereto may be Section I-continued although such does not conform with the provisions of this (C)(1 ) Chapter for the district in which
it is located, but such nonconforming use shall not be extended. Moved to ( 2) If no structural alterations are made, a nonconforming use of a Section structure may be changed to another
nonconforming use of the same I-or a more restricted classification. Whenever a nonconforming use (C)(3) has been changed to a more restricted nonconforming use, or a conforming use,
such use shall not thereafter be changed to a less Amended restricted use. & moved ( 3) If a nonconforming use of a structure or premises is discontinued for to Section a period of twelve
(12) consecutive months, any future use of the (C)(5) structure or premises shall conform to the regulations for the district in which it is located. Moved to ( 4) If a premises contains
an existing nonconforming use, a conforming use shall not be permitted on that premises until such time that the Section nonconforming use is discontinued or brought into compliance
with (C)(6) the provisions of this Ordinance. Moved to ( 5) When a structure containing a nonconforming use is damaged by Section fire, explosion, act of god or the public enemy to the
extent of more (C)(7) than fifty (50) percent of its current total assessed value, it shall not be restored except in conformity with the regulations of the district in which it is located.
Moved to Section I-( 6) Passage of this Ordinance in no way legalizes any illegal uses (C)(8) existing at the time of its adoption. (6) Nonconforming Structures ( 1) Structures which
were constructed prior to the effective date of this Ordinance which are conforming to the Ordinance as to use but do not conform as to dimensional rules (setbacks, height, separations,
etc.) and which are proposed to be altered, are subject to the following requirements: (a) Repairs and improvements of a maintenance nature are allowed. Amended & moved to Section (B)(4)
Amended & moved to Section (B)(1)(c) & (B)(2)(b-c) Alterations, additions and expansions which change the exterior dimension of the structure and which conform to the dimensional rules
of the Ordinance are allowed. (b)
Amended & moved to Section (B)(l)(c) & (B)(2)(b-c) Amended & moved to Section (B)(l)(c) & (B)(2)(b-c) Removed ( 2) (c) Alterations, additions and expansions which change the exterior
dimensions of the structure, and which do not conform to this Ordinance but which do not increase the dimensional non-conformity beyond that which existed before the work commenced,
are allowed provided they do not exceed fifty (50) percent of the current total assessed value of the structure for the life time of the structure. (d) No alterations, additions or expansions
may occur which will increase the dimensional non-conformity. If a two family dwelling, nonconforming in dimension only, is damaged or destroyed to an extent greater than fifty (50)
percent of its assessed value, it may be restored or rebuilt, provided the lot has a minimum width of forty-five (45) feet and the structure conforms to setback, building area, and height
regulations of the district in which it is located, and provided reconstruction begins within twelve (12) months from the date it was damaged or destroyed. If a single family dwelling,
nonconforming in dimension only, is damaged or destroyed to an extent greater than fifty (50) percent of its assessed value, it may be restored or rebuilt, provided the structure conforms
to setback and height regulations of the district in which it is located. (C) Nonconforming Parking/Loading Facilities A structure or use existing lawfully at the time this Zoning Ordinance
became effective, but which does not conform with the off-street parking or off-street loading regulations, may be occupied by the existing use without such ~ parking and/or loading
facilities being provided. Any parking spaces that j may be provided shall be in accordance with the regulations set forth in '--------Section 30-36. Whenever a structure or use existing
prior to the effective date of this Ordinance is enlarged to the extent of fifty (50) percent or more in floor area, or in the area used, said structure or use shall then and thereafter
comply with the parking requirements set forth herein. Removed