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HomeMy WebLinkAbout11-419AUGUST 23, 2011 SEPTEMBER 13, 2011 11 -366 FIRST READING SECOND READING (CARRIED 6 -0 LOST LAID OVER 11-419 ORDINANCE WITHDRAWN ) PURPOSE: APPROVE AMENDMENT TO CHAPTER 30 ZONING ORDINANCE TO REPEAL & RECREATE THE NONCONFORMING STRUCTURE & USE REGULATIONS INITIATED BY: COMMUNITY DEVELOPMENT DEPARTMENT PLAN COMMISSION RECOMMENDATION: Approved A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING THE ZONING ORDINANCE TO REPEAL AND RECREATE THE NONCONFORMING STRUCTURE & USE REGULATIONS The Common Council of the City of Oshkosh do ordain as follows: SECTION 1. That Section 30 -4 Nonconforming Use Regulations is hereby repealed and recreated to read as follows: Section 30 -4 Nonconforming Structure and Use Regulations (A) Purpose and Intent (1) Purpose The purpose of this section is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) I ntent . It is recognized that there exists within zoning districts certain buildings, structures and uses which were lawful before the adoption of this chapter or amendments thereto, which would be prohibited, regulated or restricted under the terms of this Chapter. It is the intent of this Section to permit nonconforming buildings, structures or uses to continue until they are removed, but not to encourage their continued use or existence. (B) Nonconforming Structures (1) Alterations (a) Alterations shall be defined as being one or more of the following: AUGUST 23, 2011 SEPTEMBER 13, 2011 11 -366 11 -419 ORDINANCE FIRST READING SECOND READING CONT'D (i) Adding, removing, changing or rearranging the supporting members of an existing structure, such as load bearing walls, columns, beams, girders, or interior partitions. (ii) Pulverizing and/or removing asphalt or concrete from off - street parking and loading facilities and/or access drives to the extent of exposing the base course whether or not repaving of such area occurs. (iii) Full -depth reclamation and mix and mill in place processes that pulverize the parking facility surface and blend it on site with the existing aggregate base. (iv) For purposes of this section, size is defined as the site coverage, physical dimension, volume, height, length, width, or gross floor area. (b) A nonconforming structure may be altered /reconstructed to the extent of more than fifty percent (50 %) of its current assessed value subject to the following: (i) After alteration, the nonconforming structure shall conform to the required yard setbacks of the district in which it is located. (ii) After alteration, the 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) A nonconforming structure may be altered to the extent of less than or equal to fifty percent (50 %) of its current assessed value provided that the nonconforming structure does not encroach any further into the established nonconforming yard setbacks or required yard setbacks. (d) 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. AUGUST 23, 2011 SEPTEMBER 13, 2011 11 -366 11-419 ORDINANCE FIRST READING SECOND READING CONT'D (i) For purposes of this section, size is defined as the site coverage, physical dimension, volume, height, length, width, or gross floor area. (b) Additions made to nonconforming structures may be permissible in the front, side, rear and transitional yards subject to the following: (i) The addition shall not further encroach into the established nonconforming yard setbacks than the existing nonconforming structure. (ii) The addition shall conform to all other requirements of the district in which it is located. (c) Additions shall meet all other provisions of this Chapter, including, but not limited to, maximum lot coverage, off - street parking and loading facilities and landscaping standards. (3) Relocation (a) Relocation shall be defined as any repositioning of a structure on its site or moving any structure to another site. (b) No structure shall be moved in whole or in part to any other location on the same or any other site unless the structure complies with all current code standards. (c) If a structure is relocated to a new site it shall also comply with all other provisions of this Chapter, including but not limited to, maximum lot coverage, off - street parking and loading facilities, and landscaping standards. (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 and /or loading lot. (iii) Resurfacing the asphalt or concrete of the off - street parking, loading facilities and /or access drives without exposing the base course and overlaying such area. AUGUST 23, 2011 SEPTEMBER 13, 2011 11 -366 11 -419 ORDINANCE FIRST READING SECOND READING CONT'D (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 use does not conform to the provisions of this Chapter for the district in which it is located, but such nonconforming use shall not be extended or expanded. (2) The nonconforming use of the structure shall not be enlarged or increased to occupy a greater area of lot, parcel, site, and/or structure than was occupied at the time of the effective date of this Chapter. (3) No nonconforming use of a premise shall be moved in whole or in part to any other portion of the lot, parcel or site than was occupied by such use at the time of the effective date of this chapter. (4) If no structural alterations are made, a nonconforming use of a structure may be changed to another nonconforming use of the same or a more restricted classification, as defined by this Ordinance's Appendix. Whenever a nonconforming use has been changed to a more restricted nonconforming use, and/or a conforming use, such use shall not thereafter be changed to a less restricted use. 5) If a nonconforming use of a structure or premises is discontinued for a period of twelve (12) consecutive months, it shall be deemed abandoned and any future use of the structure or premises shall conform to the regulations for the district in which it is located. The property owner has the burden to prove that the nonconforming use has been continuously maintained over time. Potential forms of documentation including but not be limited to utility bills; tax records; business licenses; listings in telephone, business, or Polk directories; advertisements in dated publications; building, land use, or development permits; 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 parcel or lot contains an existing nonconforming use, a conforming use shall not be permitted on that parcel or lot until such time that the nonconforming use is discontinued or brought into compliance with the provisions of this Ordinance. AUGUST 23, 2011 SEPTEMBER 13, 2011 11 -366 11 -419 ORDINANCE FIRST READING SECOND READING CONT'D (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 current total assessed value, the use shall be deemed abandoned as outlined in paragraph (5) above 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. SECTION 2. This Ordinance shall be in full force and effect from and after its passage and publication. SECTION 3. Publication Notice. Please take notice that the City of Oshkosh enacted Ordinance #11 -419 APPROVE AMENDMENT TO CHAPTER 30 ZONING ORDINANCE TO REPEAL AND RECREATE THE NONCONFORMING STRUCTURE & USE REGULATIONS on September 13, 2011. The full text of the Ordinance may be obtained at the Office of the City Clerk, 215 Church Ave. and on the City's website at www.ci.oshkosh.wi.us Clerk's phone: (920) 236 -5011. O,IHKOlH ON THE WATER TO: Honorable Mayor and Members of the Common Council FROM: Darryn Bun'jcj Director of arming Services DATE: August 18, 2011 RE: Approve Amendment to Chapter 30 Zoning Ordinance to Repeal the Nonconforming Structure and Use Regulations (Plan Commission recommends approval) BACKGROUND The 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 Il: General Provisions. The purpose of revising the Nonconforming Structure and Use regulations is to make them clearer for administrative purposes and for understanding by the general public as to options with nonconforming structures and uses. ANALYSIS The proposed code as re- written is clearer and less ambiguous than the existing code that will make it easier for the city to administer and for citizens and developers alike to understand. FISCAL IMPACT None anticipated. RECOMMENDATION The Plan Commission approved of this request at its August 2, 2011 meeting. Approved, C" ity Manager ITEM: PROPOSED TEXT AMENDMENT TO ZONING ORDINANCE CHAPTER 30, SECTION 30 -4 NONCONFORMING USE REGULATIONS Plan Commission meeting of August 2, 2011 GENERAL INFORMATION Applicant: Department of Community Development Owner: N/A Actions Requested: The 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: Section 30 -8 of the Zoning Ordinance 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 is primarily to address concerns brought forward by the County Judicial System during regular enforcement duties of the City's Planning Services Division 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 a recent court case in which it was suggested that the code be updated or amended for clarification as well as reflect and define mechanisms and practices used during regulation and enforcement actions. Numerous interdepartmental meetings have taken place in the process of revising the code and all departments, including the City Attorney's Office, are comfortable with the language as presented in the draft document. A workshop was held with the Plan Commission on December 7, 2010. This item was brought to the Plan Commission for action on January 4, 2011 at which time it was tabled until it could be reviewed by the Board of Appeals, which took place at a workshop on February 9, 2011. The Board of Appeals had the following comments: 1. The draft code was much more understandable and easy to read. 2. The regulations were appropriate and fair for the purpose and intent. 3. The Board of Appeals is there to hear variance requests and that the draft code will help with interpretations. 4. They support the draft as a legal document and that it is defensible. 5. It is much better to clean-up nonconformities rather than allow them to exist forever. 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 12/08/10 OveralUUniversal 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 provisions to allow single and two- family nonconforming structures to be rebuilt if they are damaged or destroyed greater than 50% of their value as this provision is encompassed within the entirety of the nonconforming structure section of the draft code. (5) 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 (13)(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. Item -Z. 0. text amendment nonconforming use regs Pafze 3 Section 30- 4(C)(2): Enlargement of Use (1) Updated description of what is considered an enlargement or increase in a nonconforming use. Section 30- 4(C)(3): Moving a Use (1) Regulation stating that a nonconforming use may not be moved from its current location on a lot. Section 30- 4(C)(5): Discontinuance of Nonconforming Use (1) Addition to an existing regulation that serves to outline and define what documentation is necessary to prove a nonconforming use has been continuously maintained. RECOMMENDATION /CONDITIONS Based on the information contained in this report and the content of the draft document, staff recommends the Plan Commission recommend the Common Council repeal the existing Zoning Code Section 30 -4: Nonconforming Structure and Use Regulations and recreate it as submitted. The Plan Commission approved of the repealing of the existing Zoning Code Section 30 -4 and recreating it as requested. The following is the Plan Commission's discussion on this item. Mr. Buck presented the item and explained the purpose of revising the regulations. He explained that the proposed text amendment had been previously reviewed by the Plan Commission at a workshop in December of 2010 and again as an action item in January of 2011. The request was tabled at the January meeting to allow the Board of Appeals to review the proposed amendment which took place at a workshop in February of 2011. The Board of Appeals members supported the request as they felt it would make the ordinance more understandable and would help with interpretations of the code and would be defensible. He also reviewed the specific changes to the ordinance. Robert Cornell, 548 W. Smith Avenue, Chairman of the Board of Appeals, stated that of the comments included in the staff report from the Board of Appeals, the most important was the one relating to the clean-up of nonconformities in the community. He further stated that one of the biggest problems the Board encounters is citizens misunderstanding the code requirements. The Board of Appeals is not an advisory board and their decisions are final unless the applicant wishes to appeal the decision with the County Judicial System. He further explained that the Board has to determine findings when granting a variance to support their decision and the Board members requested that he attend this meeting to support the proposed amendment as the ordinance needs to be brought up to date. Mr. McHugh questioned if Mr. Cornell felt that the City has gone too far with the proposed amendment or not far enough. Mr. Cornell responded that he felt the amendment made matters pretty clear and covers the issues adequately as well as making the ordinance easier for citizens to understand. Item -Z. O. text amendment nonconforming use regs Mr. Thorns inquired how the proposed amendment helps to address issues from a judicial standpoint. Lynn Lorenson, City Attorney, replied that the definition section of the ordinance previously did not exist and this addition clarifies matters as well as defines what is considered maintenance, alterations, etc. which should alleviate misinterpretations of the code requirements. Motion by Vajgrt to approve the text amendment to Zoning Ordinance Chapter 30, Section 30 -4 Nonconforming Structure and Use Regulations as requested. Seconded by Cummings. Motion carried 9 -0. Item -Z. 0. text amendment nonconforming use regs SECTION 30 -4 NONCONFORMING STRUCTURE AND USE REGULATIONS (A) Purpose and Intent (1) Purpose. 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) Intent. It is recognized that there exists within Zoning Districts certain buildings, structures and uses which were lawful before the adoption of this chapter or amendments thereto, which wd Id "be prohibited, regulated or restricted under the terms of this Chapter"" It ls; the intent of this Chapter to permit nonconforming buildings, structures °or uses,to continue until they are removed, but not encourage their:continued use' or existence. (B) Nonconforminq Structures (1) Alterations (a) Alterations shall be defin (i) Adding, removing an existing structur girders, or interior p (ii) Pulverizing and/01 and::ioadiri� facilities d as being ore;or more of the following: cfianging or i- i arranging the supporting members of `such . >as load „,', bearing walls, columns, beams, -course wnetner or n Full -depth feclamatii Brize the p rkina faci , in�g” asphalt or concrete from off - street parking , access drives to the extent of exposing the repaving of such area occurs. and mix and mill in place processes that surface and blend it on site with the existing aggregate (iv) For ;purposes of ths, section, size is defined as the site coverage, physical di%nension, volume, height, length, width, or gross floor area. (b) A nonconforming structure ma be altered /reconstructed to the extent of more than fifty percent, (50 %)'`of its current assessed value subject to the following: (i) Aftefalteration, the nonconforming structure shall conform to the requiredyard setbacks of the district in which it is located. i (u) A , `alteration, the 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) A nonconforming structure may be altered to the extent of less than or equal to fifty percent (50 %) of its current assessed value provided that the nonconforming structure does not encroach any further into the established nonconforming yard setbacks or required yard setbacks. (d) A record shall be kept which lists the nonconforming structures, their assessed value, and the cost of those alterations which have been permitted. Page 1 of 3 08/02/11 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. (i) For purposes of this section, size is defined as the site coverage, physical dimension, volume, height, length, width, or gross floor area. (b) Additions made to nonconforming structures may be permissible in the front, side, rear and transitional yards subject to the following` (i) The addition shall not furt her encroach into the established nonconforming yard setbacks than the existing nonconforming structure. (ii) The addition shall conform to all other `regbirements of the district in which it is located. (c) Additions shall meet all o limited to, maximum lot cove landscaping standards. (3) Relocation (a) Relocation shall be moving any structure to (b) No structure = ` shall be moved ita& Whole or Ai'i `part to any other location on the same or any other , site unless t`he structure complies with all current code standards:' (c) If a structure is relocated; to anew site it shall also comply with all other provisions of this chapter, including but not limited to maximum lot coverage, off - sfreetpacking a loading facilities, and landscaping standards. Ordinary repairs rdinary 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--,' or other nonstructural components. (n) 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 and /or loading lot. (iii) Resurfacing the asphalt or concrete of the off - street parking, loading facilities and /or as access drives without exposing the base course and overlaying such area. (b) Ordinary maintenance and repairs made to a nonconforming structure are permitted. Page 2 of 3 08/02/11 6 (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 use does not conform to the provisions of this Chapter for the district in which it is located, but such nonconforming use shall not be extended or expanded. (2) The nonconforming use of the structure shall not be enlarged or increased to occupy a greater area of lot, parcel, site, and /or structure than was occupied at the time of the effective date of this chapter. (3) No nonconforming use of a premise shall be moved in whole or in part to any other portion of the lot, parcel or site than was,occupied by such use at the time of the effective date of this chapter. (4) If no structural alterations are made, a nori,conforming :use of a structure may be changed to another nonconformingr of the same",', or a more restricted classification, as defined by this ordinance appendix. Whenever ,a nonconforming use has been changed to a more restricted.. nonconforming use, and /or a conforming use, such use shall not thereafter be changed to a "less restricted use. 5) If a nonconforming use of a twelve (12) consecutive mor use of the structure or premi which it is located. The R nonconforming `used of documentation in licenses listings in dated publications, policies, leases, tl 11 is been I ding b or premises is discontinued for a period of call be deemed abandoned and any future conform to' -the regulations for the district in iwner!" has the burden to prove that the 111 )usly maintained over time. Potential forms limited to utility bills; tax records; business elepnone, nusiness, or Polk directories; advertisements in building, landl, use or development permits; insurance teci aer�k photos; insurance maps that identify use or as the ° Sanborn Maps; or land use and development by a government agency. If a parcel or lot contains, an existing nonconforming use, a conforming use shall not be permitted ,on that' parcel or lot until such time that the nonconforming use �s discontinued or brought into compliance with the provisions of this Ordinance. (7) When. structure containing a nonconforming use is damaged by fire, explosion, or act of god``�o the extent of more than fifty (50) percent of its 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 3 of 3 08/02/11 �?