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HomeMy WebLinkAbout2003 10 13 Public Hearings 401 Second Reading - Ordinance 2003-26 Regulation of Nonconforming Uses and Structures COMMISSION AGENDA ITEM 401 Consent Information Public Hearin~ X Re~ular VI Mgr. Dept. Authorization REQUEST: The Community Development Department and Office of the City Attorney request the City Commission adopt Ordinance 2003- 36, amending Winter Springs Code Chapter 9, relating to the regulation of nonconforming uses and structures. October 13. 2003 Meeting Iff PURPOSE: The purpose of this Agenda Item is to request the City Commission review and approve the second reading of proposed Ordinance No. 2003-36. APPLICABLE LAW AND PUBLIC POLICY Section 2(b). Article VIII. Florida Constitution Section 166.041. Florida Statutes: (procedures for adoption of ordinances and resolutions.) Winter Springs Charter Section 4.15 Ordinam-es in General. (procedures for adoption of ordinances) Winter Springs Code. Chapter 9. CONSIDERATIONS: Ever since Vtilage ofEucJid v. Ambler Realry Co., (272 U.S. 365,47 S, Ct. 114, 71 Ed 303 (1926)), the landmark court case that is credited with establishing the constitutionality of use district zoning, the elimination of nonconformities (uses and structures) has been a major planning and zoning priority. The concept evolved from an era of laissezfaire economics, robber barons, and heavy industrialism - when a factory, a slaughterhouse, or rendering plant might be constructed next to an existing residential neighborhood. The goal was to ensure the public health, safety, and welfare, as well as to protect property values. Existing nonconforming uses and/ or structures that were lawful and conforming up until the time that a zoning ordinance was adopted or amended were allowed to continue, but not expand or intensify. The objective was their eventual elimination, to avoid potential conflict that might threaten the health, safety, welfare, or property values. Typically, zoning codes October 13, 2003 Public Hearing 401 Page 2 of2 that might threaten the health, safety, welfare, or property values. Typically, zoning codes provide for the elimination of a nonconforming use when it is discontinued for a prescribed time period or of a structure if a certain percentage of that structure were destroyed. Nearly eighty years of zoning experience have demonstrated that, while certain uses must obviously be kept separate, a number of nonconformities are not inherendy harmful, particularly if they are addressed on a case-by-case basis and appropriate safeguards imposed where needed. Indeed, in some situations, a nonconformity may add a positive mix and diversity. Flexibility is the key to determining if a use or structure fits into its surroundings. As the City amends its zoning map and zoning code, certain nonconforming uses and structures need to be effectively addressed in a manner that protects the individual private property rights of the person or people owning a nonconforming use or structure; the public health, safety, and welfare; as well as the overall property values within a neighborhood and the entire community. The attached ordinance was drafted to achieve this goal. P&Z RECOMMENDATION: At its September 3, 2003 meeting, the Planning and Zoning Board recommended approval of Ordinance No. 2003 - 36. STAFF RECOMMENDATION: Staff recommends that the approve Ordinance 2003 - 36, amending Chapter 9 of the Winter Springs' Code, relating to the regulation of nonconforming uses and structures. ATTACHMENT: A- Ordinance 2003 - 36 B- Draft P&Z Minutes C- April 2003 Zoning News CITY COMMISSION ACTION: ATTACHMENT A !\ September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFT 09/15103 ORDINANCE. NO. 2003-36 AN ORDINANCE OF THE CI1Y COMMISSION OF THE CITY OFWlNTERSPRINGS,FLORIDA,AMENDINGTHECI1YCODE RELATING TO THE REGULATION OF NONCONFORMING USES' AND STRUCTURES; PROVIDING FOR INTENT; PROVIDING FOR CONTINUANCE AND REGULATION OF LA WFULNONCONFORMITIES UNDER THE REQUIREMENTS SET FORTH HEREIN; PROVIDING FOR THE ISSUANCE OF SPECIAL PERMITS BY THE CI1Y COMMISSION FOR THE CONTINUANCE OF SOME NONCONFORMITIES THAT WOULD OTHERWISE BE TERMINATED WHEN CIRCUMSTANCES DEMONSTRATE THAT THE OVERALL COMMUNITY AND PUBl,IC POI,ICY OJlJECI'IVES OF TH If, CITY WllL BE PROl\tOTEDAND ENHANCED; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article vm, of the State Constitution, to exercise any power for municipal purposes, except when expressly prolubited by law; and WHEREAS, the City recognizes the interests of property owners in the continuation of otherwise lawful uses and structures prior to the adoption of the City Code or lawfully pennitted under the City Code, but which woUld be prohibited, regulated or restricted under the terms of the current City Code or subsequent amendments thereto; and , WHEREAS, the City desires a clear, concise, and uniform regulation regarding the continuation of lawful nonconforming uses and structures unless otherwise more specifically regulated under the City Code; and WHEREAS, this Ordinance is in the best interests of the public health, safety, and welfare of the citizens ofWmter Springs. NOW, THEREFORlt, THE CITY COMMISSION OF THE CITY QFWlNTERSPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference as legislative findings of the City Commission ofWmter Springs.. City of Winter Springs Ordinance No. 2003-36 Page 1 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFl' 09115103 Section 2. Code Amendment, Chapter 9. The City ofWmter Springs Code, Chapter 9t entitled Land Development, is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletionst while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 9. It is intended that the text in Chapter 9 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). CHAPTER 9 - LAND DEVEWPMENT * * * ARTICLE IV. REQiJIRED IMPROVEMENTS * * * Division 6. Off-Street Parking and Loading * * * See. 9-278. General provisions For off-street parking. * * * (7) Existing ~s. Nothing in the sections of this Code shaH prevent the reconstruction, repairing or rebuilding and continued use of any nonconfum1ing building or sa ucture existing at the etfec.ti ve date of this section, which is damaged by mt coHapset explosion, or acts of God subsequent to Stleh effective date Reserved. * *, * ARTICLE XI. NONCONFORMITIES See. 9-561. Intent: rules of interpretation: building and fire codes: defmitions. (a) Intent. This article is intended to permit the continuation of those lots. structures. uses. characteristics of use. .or combinations thereot: which were lawful before the passage of the City Code or which at one time had been lawfully permitted under the City Code. but which would be prohtbited. regulated or restricted under thetetll1S of the current City Code or future amendments thereto. This article is designed to provide standards and guidelines for the control and management ofnon-confonning uses and non-complying buildings and structures. especially in regtJlating changes in the use orland or in the buildings or structures. including quality. volume or intensity. location. ownership or tenancy. accessory and incidental uses. extension. enlargement. replacement. or any other change in characteristic. It is the intent of this article to permit these non-conformities and non-compliances to continue until they are removed through discontinuance. abandonment or amortization. but not to encoUlJ\ge their continuation unless otherwise authorized under this article either expressly or by special pennit. Such City of Winter Springs Ordinance No. 2003-36 Page 2 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAYI' 09/15'03 nonconfonning uses and structures are declared by this article to be incompanble with pennitted uses in tile zoning districts involved unless the C~ Commission issues a SJXrial pennit based upon evidence that special circumstances exist in accordance with the standards set forth in this article. It is further the intent of this article that non-confonning uses and structures shall not be enlarged upon. expanded. increased or extended. nor be used as grounds for adding other structures or uses prolubited elsewhere in the same zoning district unless otherwise provided by special pennit under this article. (b) Rules for interpretation. Nothing in this article shall be interpreted as authorization for or approval of the continuation of any illegal use of a building. structure or land or illegal structure or building that was in violation of any ordinance in effect at the time of the passage of this article or any amendments thereto. The casual intennittent. temporary or illegal use ofland building or structure or construction ofan unlawful structure shall not be a basis to establish the existence of a nonconfonning use or structure. A lawful building permit issued for any building or structure prior to the enactment of this article. tile construction of which is in conformity with approved site plans. if applicable. and building plans shall not be affected bv this article if the building or structure is built in fun compliance with the City Code as it existed at the time of the issuance of the building permit. In the event there is a conflict with the provisions of this article and a specific amortiZation provision requiritig the removal or modification of a nonconfonning structure or discOntinuance of a nonconfonning use ofland the provision which requires the nonconfonnity to come into compliance with the current City Code the earliest shall apply. (c) Building and fire codes. No provision contained in this article. or elsewhere in the City Code. shall nullify. void abrogate or supercede any requirement contained in a building or fire code that is duly enacted by law. (d) Definitions. As used in this article. the following words shall have the meaning ascribed unless the context clearly indicates otherwise: (1) Lot of record shall mean a lot which is part of a subdivision recorded in the official record books of Seminole County. Florida or a parcel ofland described by metes and bounds legal description. the description of which has been recorded in the official record books of Seminole County. Florida and complies with the subdivision ofland regulations of the City. (2) Noru:onformin[J or Noru:onformity shall mean any lot. structure. use ofland or structure. or characteristic of any use or structUre which was lawful at the time of subdivision. construction. or commencement. as the case may be. which over time no longer complies with the City Code or other applicable law due to a subsequent change of the City Code or other law. See. 9..562. Continuance of lawful non-confonning uses and stmctures. . W Continuance of nonconforming uses. A nonconfonning use lawfully existing at the time of the enactment of the City Code or any subsequent amendment thereto may be continued subiect to the following provisions: City of Winter Springs Ordinance No. 2003-36 Page 3 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFI' 09/15103 ill No such nonconfonning use shall be enlarged or increased. nor extended to occupy a greater , area ofland than was occupied at the adoption or subseqJJent amendment of the City Code; unless such use is changed to a use permitted in the district in which such use is located: m No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the adoption or subsequent amendment of the City Code' ..=..:=:;p ill If any such nonconforming use ofland ceases for any reason for a period of more than one hundred eighty (180) consecutive days. any subsequent use of such land shall conform to the regulations specified by the City Code forthe zoning district which such land is located: and ill No additional structures which do not conform to the requirements of the City Code shall be erected in connection with such nonconfonning use ofland. au Continuance of nonconformin(J structures. The lawful use of a nonconforming structure may be continued subject to the following provisions: ill No such structUre may be enlarged or altered in a way which increases its nonconformity: ill Any structure or portion thereof may be altered to decrease its noncomormity: ill Should such structure be damaged by any means. such that the cost of repair or reconstruction exceeds sixty (60) percent of the assessed value of the structure at the time of damage. it shall not be repaired or reconstructed except in conformity with the provisions of the City Code: and ill Should such structure be moved for any reason for any distance whatsoever. it shall thereafter conform to the regulations of the zoning district in which it is located after it is moved. Notwithstanding any of the above. upon any nonconforming lot of record as described in this article. that is improved with a single-family dwelling as of the date of the adoption of the City Code or lawfully pennitted under the City Code. a single-family dwelling may be rebuilt within the original footprint of the dwelling structure existing as of the date of the adoption of the City Code or subsequent amendment. without regard to area.. width. yard or setback requirements. See. 9-563. Nonconforming lots of record. City of Winter Springs Ordinance No. 2003-36 Page 4 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFf 09ti5lO3 In any zoning district in which single-family dwellings are permitted. notwithstanding limitations imposed by other provisions of the Ci\y Code. a single-family dwelling and customary accessory'buildings 'may be erected on 8I\Y lot of record. This provision shall apply even though such lot fails to meet the requirements for area or width or both. that are generally applicable in the zoning districts. provided that yard dimensions and other requirements shall confonn to the regulations for the district in which such lot is located. Variances of yard dimensions other than area or width. or both. shall be obtained only through action of the city commission If two (2) or more lots of record with continuous frontage are under single ownership. and all or part of the lots do not meet the requirements for Jot width and area as established by the Ci\y Code. the lands involved shall be co~dered to be an undivided parcel for the purposes of development and this article. No portion of said parcel shall hereafter be created and used as a separate parcel or sold or otherwise subdivided which does not meet.lot width and area req1Jirements established by the City Code unless all or part of the parcel is sold in order to create a lot meeting the requirements of the City Code. Notwithstanding this aJ!lrreflation ofland reauirement. a simde-fami1v dwelling: and cUstomarv accessOlv building:s mav be erected on any such single lot of record ina residential zoning district providing the land densi\y requirements of the comprehensive plan are satisfied and the proposed single-family dwelling and any customary accessory bUilding are compatible to the surrounding neighborhood with respect to proper\}' values and building size. For purposes of this paragraph. compatible shall mean substantially similar to or exceeds the property values and building size of other single-family dwellings and customary accessory buildings in the surrounding neighborhood. ' See. 9-564. Nonconforming ust'S of structures or of structures and premist'S in combination., If a lawful use involving individual structures. or of structure and premises in combination. exists at the adoption or subsequent amendment of the Ci\y Code. that would not be allowed in the zoning district under the terms of the City Code. the lawful uSe may be continued so long as it ren1ains otherwise lawful subject to the following .provisions: ill No existing structure devoted to a use not permitted by the City Code in the district in which it is located shall be enlarged extended constructed. reconstructed. moved or structurally altered except in changing the use of the district in which it is located: ill Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this article but no such use shall be extended to occupy any land outside such building: ill Any structure. or structure and land in combination. in or on which a nonconforming use is superseded b}' a pennitted use. shall thereafter confonn to the regulations for the district in which such structure is located. and the nonconforming use may not thereafter be resumed: and City of Winter Springs Ordinance No. 2003-36 Page 5 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFI' 09/1S'03 (4) Where nonconforming use status applies to a structure and premises in combination. removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the pwposes of this subsection shall mean damage by any means. such that the cost' to repair or reconstruct the structure exceeds sixty (60) percent of the assessed value of the structure at the time of damage. See. 9-565. Abandonment. (a) , A nonconforming use of a building or premises which has been abandoned shall not thereafter be returned to such nonconforming use. A nonconforming use shall be considered abandoned: ill When ,the intent of the owner to discontinue the use is apparent: or ill When the characteristic equipment and the furnishings of the nonconforming use have been removed from the nremises and have not been renlaced bv similar equinment within one hl.l;ll<lred eighty (180) days. unless other facts show intention to resume the nonconforming use: or ill When it has been replaced by a conforming use: or ill Where the use is discontinued or abandoned for a period of more than one hundred eighty (180) consecutive days or for eighteen (18) months (545 days) during any three-year period. (b) In the event a more specific abandonment. discontinuance. or amortization provision is stated elsewhere in this City Code for a specific nonconforming structure. land use. or land area. the abandonment. discontinuance. and amortization provision which requires the nonconfonnity to come into compliance with the current City Code the earliest shall apply. (c) 'No provision contained in this article. or elsewhere in the City Code regarding the abandonment. discontinuance. or amortization of nonconforming structures or land uses shall nulli1Y. void. or abrogate any similar provision contained in a duly executed binding development agreement approved by the City Commission. , Sec. 9-566. Repairs and maintenance. uu Minor repairs to and routine maintenance of nonconforming structures are permitted and encouraged. Maior renovation. repair. or replacement work on nonconforming structures shall be authorized by the City Commission pursuant to Section 9-568 or by building pennit provided the following conditions are satisfied: (1) The renovation. rl.Wair. or replacement work complies with applicable building codeS. City of Winter Springs Ordinance No. 2003-36 Page 6 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFT ~115103 (2) No violation of Sections 9-562. 9-564. 9-565 exists. (3) The permittee shall comply to the extent reasonably possible with all other applicable provisions of this article. (4) There are no pending code enforcement actions or liens existing on the subiect property. (5) The cost of any renovation repair. or replacement work on the structure in any twelve (12) month period does not exceed twenty-five (25) percent of the assessed value of the structure at the time that the work is perfonned. @ Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safetv. noon order of such official. However, this subsection shall not be construed as a means of circumventitlg the intent of this article calling for the elimination of nonconforming structures by allowing a nonconforming structure to be substantially rebuilt so as to extend the ordinary and natural life of a nonconforming structure. . (c) This section does not apply to structures used for single family ptuposes which structures may be renovated. repaired. or replaced in accordance with a lawfully issued building pennit. See. 9-567. Temporary uses. The casual intennittent. temporary or illegal use ofland or structures. or construction of an unlawful structure. shall not be sufficient to establish the existence of a nonconforming use or structure. Such use or structure shall not be validated by the adoption of this article or amendments hereto unless it complies with the tenns 'of the City Code. See. 9-568. Special Penn it. (a) The intent and purpose of this section is to recognize that there are limited and special circumstances where overall community and public policy obiectives of the City encourage. and shall be served by. the continuation of some nonconforming uses and structures provided said uses and structures are not detrimental to the surrounding neighborhood and to the community values established in the City's Comprehensive Plan and City Codes. The City Commission desires to establish' specific standards for this category of special pennit in order to allow the continuation of some nonconforming uses and structures notwithstanding any contrary provisions of this article or City Code. City of Winter Springs Ordiilance No. 2003-36 Page 1 of 11 Septernber22,2003 Public Hearing 406 " ATTACHMENT "A" DRAFI' 0911S'03 (b) The City Commission at a duly held public hearing may grant a special pennit to' allow the continuation of a nonconforming use or structure provided the following terms and conditions are strictly satisfied: (1) The owner of the property on which the nonconforming use or structure exists files a special pennit application provided by the City: and (2) The applicant demonstrates that the continuation of the nonconforming use or structure: a. is capable of contributing iri a positive way to the character and serves the need of the community. including re-occupancy for the accommodation of neighborhood walk-ta-service uses. walk-ta-work opportunities. and live-work spaces: reuse of buildings with architectural or historic value: and reuse of buildings that generate a significant economic benefit to the community: and b. is companble with. and not detrimental to. the surrounding neighborhood in tenns of traffic. noise~ parking. odor. light. intensity and land uses. hours of operation. landscaping. aesthetics.. structural design. and density: and c. is consistent with the community values. obiectives. and policies established in the City's Comprehensive Plan and City Code. (c) The City Commission may impose conditions and safeguards as a condition of approval of any special pennit granted under this section. See. 9-569 - 9-600. Reserved. Section 3. Code Amendment, Section 10-60. The City ofWmter Springs Code, Section 10-60, entitled Zoning, is hereby amended as follows (underlined type indicates additions and st..-ikeout type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Section 10-60. It is intended that the text in Section 10-60 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). See. 10-60. Nonconforming uses. An adult entertainment establishment which on the effective date of this article does riot comply with the distance requirements of Section 10-58 shall be subject to the nonconforming use provisions contained here~ith, an-d of the within Chapter 9. Article Xl Division 4 of the City code of the City ofWmter Springs, Florida.' ' (f) The lawful use of a building or structure existing at the titue of the passage of this article nlaY be continued, althottgh StIch use does not CQnfonn to the provisions of this article, and such City of Winter Springs Ordinance No. 2003-36 Page 8 of 11 September 22, 2003 Public Hearing 406 A TT ACHMENT "A" DRAFT 09I1!!103 nse may be extended tbrotrghout the building provided no s1:I ac,taral alterations, except those required by law or article, or ordered by an authoriz:ed officer to ensure the safety of the building, are made theIem. No ~ch use shaH be extended to occupy any land Otrtside such building. If such nonconforming use of such building is removed or the nonconforming tISe of ~Gh building ~ discontinued ror A continuous period of not less than three hundred sixty-five (365) days, e'\1ery future use. of such premises shaH be in conformity 'With the promiotlS oftbis artiGle. 00 The lawful use of the land existin~ at the time of the passage of this artic.le may be continued, provided, however, tbat no such nonconforming use may be extended to oCGtlp)! a greateI area ofland than that o~npied by such use at thetinte of the passage oftbis article. If such nonconfoIlning use is discontinued for a oontitmous period of not less than three hundred sixty-five (365) days, any future use of such land shaH be ill conformity with the promions oftbis article. ffl 'Whdnevc.r a nonconfo~ fisc, of a btrilcIint or land ha:s bocn discontinued or cbangoo to A oonfon:ning ttSG, such ttSG shaH not thcrcaftcr ~ changed to a it"noonfou~ nsc. Section 4. Code Amendment, Chapter 16. The City ofWmter Springs Code, Chapter 16, is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 16. It is intended that the text in Chapter 16 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). CHAPTER 16. - SIGNS AND ADVERTISING it 11: * ARTICLE ill. SIGNS See. 16-51. Defmitions. * 11: * Nonconforming sign is any sign which does not conform to the requirements oftbis division the City Code. '" '" * See. 16-56. Nonconforming signs. (a) Any sign which, when erected, conformed to the existing zoning regulations and subsequently is declared nonconfonning due to the enactment of this division or any amendment to the zoning ordinance may remain, subject to the rollowing provisions of Chapter 9. Article Xl and the following: * '" It City of Winter Springs Ordinance No. 2003-36 Page 9 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFT 0911!J03 Section 5. Code Amendment, Section 20-233. The City ofWmter Springs Code, Section 20- 233, is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletions, while asterisks ('" '" "') indicate a deletion from the Ordinance of text existing in Section 20-233. It is intended that the text in Sectiot120-233 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). See. 20-233. Nonconforming uses Reserved. W The lawfld use ora building or stluGture ~ at the time of the pMsage of this chapter 11m, be oonlin.tted, although. such use does not conform to the pro~sions oftbis chapter, and such use may be extended throughout the building provided no structural alterations, except those required by law or ordinance, or ordered by an authoJ:ized officer to ensure the safety of the building, are made therein. No such use shaH be extended to ocx:up:y any laud outside StIch buildin.g. ff, suc;h nonconfonnins buildins is removed or the lt011GOnfbrming use of such building is discontinued fur a continuous period of not more than three hundred sixty-me (365) days, e\1cry future use of such premises shaH be in confum1ity with the pro\"isions of this chapter. (b) , The lawful use of the land existing at the tin1e of the p~sage of this chapter nmy be continued, provided, howe~er, that 110 such noncollfontling use may be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this chapter. Ifsuc,h nonconfomling use is discontinued fur a continuous period ofoot 1055 than three hundred sixty-five (365) days, cut}' fi1ttm use of such land shaH be in conformity with the provisions of this chapter. (e) Vlhenever a nonconfumling use of a building or land has been discontinued or changed to a conforming use, StIch use shaH not thereafter be changed to a nOllconfunning use. Section 6. Repeal of Prior Intonsistent Ordinanc~ and Resolutions, All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 7. Incorporation Into Code. This Ordinance shall be incorporated into the Wmter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 8. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 9. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City ofWmter Springs, Florida, and pursuant to City Charter. City of Winter Springs Ordinance No. 2003-36 Page 10 of 1l September 22, 2003 Public Hearing 406 ATTACHMENT "A" DRAFT 09/15103 ADOPTED by the City Commission of the City ofWmter Springs, Florida, in a regular meeting assembled on the _ day of , 2003. ATI'EST: ANDREA WRENW-LUACES, City Oerk JOHN F. BUSH, Mayor Approved as to legal form and sufficiency for the City ofWmter Springs only: - ANTHONY A. GARGANESE, City Attorney First Reading: . Secop.d Reading: Effective Date: C:1Documenls and SettingMnIb:lIJ Documents\AQllxmy\Wod<'CIiem MaIters\Wmlc:r S~\NanColIf<m1illgUseQdinllDccUtev8-26.m.wpd City of Winter Springs Ordinance No. 2003-36 Page 11 of 11 September 22, 2003 Public Hearing 406 ATTACHMENT "B" CITY OF WINTER SPRJNOS PARTIAL MINUTES PLANNING AND ZONING BOARDILOCAL PLANNING AGENCY REGULAR MEETmG SEPTEMBER 3, 2003 IV. PUBLIC HEARINGS l"UBLtC lDl:ARJNGS B. Ordinance NUmber 2003-36, An Ordinance Amending The City Code Regarding The Regulation Of Non-Conforming Uses And Structures Within The ICity Of Winter Springs., Discussion. ~ ~ ~ iWd ~ c=> ~ ~~ ''I MAKE THE MOTION THAT THE PLANNING AND ZONING BOARD RECOMMEND APPROVAL OF ORDINANCE 2003..36, AMENDING CErAPTER 9 OF THE WINTER SPRINGS CODE, RELATING TO THE REGULATION OF NON-CONFORMING USES AND STRUCTURES." MOTION BY BOARD MEMBER KARR. SECONDED BY BOARD MEMBER POE. DISCUSSION. VOTE: CHAIRMAN BROWN: AYE BOARD MEMBER KARR= AYE BOARD MEMBER POE: AYE VICE CHAIRPERSON KREBS: AYE MOTION CA.JmIED. ~ } ATTACHMENT C APRIL 2003 AMERICAN PLANNING ASSOOAnON II Pigs in the Parlor or Diamonds in the Rough? A New Vision for Nonconformity Regulation By Arthur lmti/ucci M Ji ~ Ii il '5 ~ d 1 ~ ~ A fimctionaliy obsolete fir~house converted to a retail stor~ that sells /rafts. ~ 1 Most of us who have been involved in zoning administration for any appreciable time have virtually been brought up respecting the sanctity of separation of use and accepting it as an article of faith. After all, every planner -and zoner has been well schooled in Village of Euclid v. Ambln- Realty Co. (272 U.S. 365, 47 S. Ct. 114, 71.Ed 303 (1926)), the se~inal case that, established the constitutionality of use district zoning. The phenomenon of the nonconformity, born and bred in Euclidean zo'ning, has always been seen as anathema to this doctrine. And so the theory held that for comprehensive zoning to be success- ful nonconformities had to be eliminated, TIme and observation have led to the realization that in spite of clear legislative intent and judicial iri'terpretation geared toward their elimination there is a seemingly never-ending inventory of nonconformities. In fact, I have to' believe there has been little real progress in eliminating nonconforrrlities in most cities. This has caused me to think anew about regUlating nonconformities. Most recently, I have been intently involved in the rewriting of a 25-year-old zoning code and have concluded that the zoning of nonconformities should be approached much differently than it traditionally has been. . . . about this article. Jo in us online! From May 19-30 go online to participate in Ollr "Ask the Author" forum. an interactive feature of Zoning N~ws. Arthur lentilucci will be available to answer questions about th'is article. Go to the APA website at www.planning.org and follow the links to the "Ask the Author~ section: From there, just submit your questions abour the article using an e-mail link. The aurhor will reply, posting the answers cum ulativeJy on the website for the benefit of all subscribers. This feature will be available for selected issues of Zoning News at announced times, After each online discussion is closed. the ansWers will be saved in an online archive available through the APA Zoning N~ws webpages, lJ"".t''''''''U,'&V''''J. 40<..., ~VV..J Public Hearing 406 Origins of Policy Let's take a step back. Euclidean zoning codes neady prescribed the specific land uses that could be established in various districts throughout a community, Each and evelY land use would be compartmentalized and appropriately situated in a particular district where a single categol)' ofland use would be permitted. Typically, these districts were the basic three: residential, commercial, and industrial. Every residential use would be segregated into a residential zone with like uses--commercial uses with similar commercial uses and the same for industrial uses, Never the twain should meet, The main tenets of comprehensive zoning were the separation of uses for mutual protection, the preservation of property values, and the facilitation of planning efforts to achieve similar community goals, The fly in the ointment was the problem of the nonconformity. Eady drafters were concerned that the whole philosophical basis and justification for comprehensive zoning might be impaired if nonconfOrmities were to be legitimized as part of comprehensive planning and wning schemes, At the same time it was feared th..t if these nonconformities were eliminated immediately there would be ATTACHMENT "C" . of use and building types, traditional codes worked primarily to restrict hather investment in nonconformities and eventually to eliminate them. The validity of the comprehensive plan and the success of comprehensive zoning rested on their transformation to conformity or their gradual termination. Joseph Katarincic, an observer of early zoning, noted in 1963 in Duquesne University Law Review (Vol. 2, No, 1) that "one difficulty, and by far the mo.st ' To achieve conformity of use and building types, traditional codes worked primarily to restrict further investment in nonconformities and eventually to eliminate them. An aging mi.wd-use building in the heart of a residential area is nOli! home to a popular upscak restlltlrant. takings challenges and zoning would not be accepted by the body politic. So, thedratters of the first codes foisted a compromise. Inconsistencies were allowed to continue, but regulation~ were imposed that would cause them eventually to disappear, Restraints- were placed on alteration, expansion, intensification, change of use, lapses of use, and restorations, all of which did not apply to permitted uses. The key words were limit, restrict, prohibit, disallow, prevent, discourage, eliminate, and terminate-all uniformly and synonymously negative, These kinds of restrictions are still found in most contemporary zoning codes, They reflect a rigidity in terms of reuse evident in both the directive to eliminate and also in the typical fOrm of relief being the use variance, which, if approved, declassifies the nonconfOrmity and results in its permanency. Regulation of nonconformities has had the intentio.n and the result of imposed uniformity, Conformity was sought as a means of avoiding po.tential conflict. The ultimate goal of mo.st zoning codes has been to achieve uniformity of uses within each wning district, which could only be accomplished by the dimination of tho.se uses and structures that do not conform. Hence, to achieve confomlity Arthur lmti/ucci is the director of zoningftr the city of Rochester, New York. 2 An abandoned gilsoline service station converted to a bakery and coffee shop in a neighborhood pr~sen'ation area. serio.us, is the continuation of the nonconforming use without an effective provision for its dimination. Until some method is devised to permanently eliminate the nonconfo.rming use from our cities and towns, effective city planning cannot be achieved." In retrospect, it seems as though it was too. often conformity for the sake of co.nformity. In taking this route to purge districts "clean,>> the restrictions have often been extremely harsh. For instance, many codes trigger abandonment of nonconfOrming uses when they are discontinued for a period of time, regardless of the intent of an owner or user not to abandon the use, When abandonment does occur, reuse of nonconfOrmities is made difficult, and in many cases the use variance is the prescribed relie~ with its demanding and difficult burden of proof. Flexibility in dealing with these "deviant" properties has been considered contrary to the purpose and intent of the zoning regulation and the comprehensive plan on which it is based. Homogeneity has been the goal, the purpose, and the mission. As urban land-use controls evolved over the course of the 20th century, the players in the zoning game were continually concerned abo.ut the undesirable impacts of nonconformities. Along the way, the allowance o.f nonconforming uses has been characterized by the courts as a "grudging tolerance." This characterization is reflected in the many regulations that .........,.t'..........~............ --, _v v..... Public Hearing 406 prescribe that nonconforming uses, buildings, and structures should be eliminated as quickly as possible. In fact, the traditional viewpoint is clearly that nonconformities violate the spirit of zoning laws. It was thought that the existence of nonconformities would lead to lowered property values, affect the areas desirability, and result in physical deterioration. However, what has more often been the case is that traditional regulation has fostered vacancy, with buildings falling into disrepair due to their loss of marketability, Also, property value is diminished or destroyed while the property is effectively isolated from the market, tax revenue is lost, and there is difficulty in obtaining mortgage financing and insurance, Marginal uses are encouraged to continue while owners divest, knowing there is little hope of even approximating highest and best use, Reinvestment is inhibited and discouraged as is the creativity and innovation that is often needed to restore and reuse these types of properties. There is an unavoidable negative impact on the neighborhood, ironically as a result of the very regulations that have been put in place for its protection. But are nonconformities always the "pig in the parlor?" I think not, ~--l An ~bsoku industrial fizcility COnt/~rud to wft apartmmts and offic~ spau n~ar residmtia/' comm~rcia/, and institutional uus. Changing Perspectives All the traditional theory and practice that have contributed to the severe restraint on nonconformities ostensibly served a purpose during the age of industrialism, where heavy, dirty industrial uses were rampant and needed to be restrained from having negative, obliterating impacts on residential areas. This was a time before the advent of comprehensive building codes, long before the information/high-tech revolutions and the advent of environmental consciousness and regulations at all levels of government, This traditional approach persisted through and fostered the era of suburbanization, with its belief system grounded in the separation of use, reverence for the single-family dwelling, and the canonization of the automobile, Zoning has sought to safeguard the future, in the expectation that time will repair the mistakes of the past, In doing so, particularly with respect to nonconformities, zoning has focused so much on protection from the undesirable that it has at the same time discouraged the activity, creativit)" and vibrancy that diverse, mixed-use buildings impart to a community. Tunes have changed, This is the day of efficient land use, of the reascendency of the urban form; of mixed use, high density, and diversity; of urban places complete with living, working, and recreating opportunities intelWoven and designed with a focus on ATTACHMENT "C" the public realm rather than on introverted private property interest, Twenty-first-centuty zoning should no longer dwell on how best to separate uses in the quest for uniformity, but how best to blend and mix uses in the interest of harmonizing diversity. Just as the rights to nonconformities have traditionally been restricted in order to protect the community's health, safety, and welfare, why can they not be embellished with more Rexibility in using, reusing, Nonconformities in reality are not inherently bad and should be considered as potential assets for any city ,neighborhood rather than as prima facie detrimental. cultivating, and recycling them to protect and enhance that same nl,hlic intere!<t> What is needed is a new 'outlook with re.<nect to ~onconformities--an outlook that sees them as not viola~ing the spirit of zoning and effective land use but rather as part of the heart and soul of the urban framework, In a nutshell, instead of restraining and eliminating nonconformities based on the fulse dictum of use separation, the emphasis should be on their use., reuse, and adaptation to current needs and market expressions as contributing members of the neighborhoods in which they reside. This is by no means a legal prescription, nor is it a commentary on the body oflaw on nonconformities such as was so aptly presented here by Mark S. Dennison ("Change or Expansion of Nonconforming Uses," March 1997), Rather, as a practitioner of zoning, I am suggesting a new strategy for dealing with these zoning orphans, one that recognizes that nonconformities in reality are not inherently bad and that they should be considered as potential assets for any city neighborhood rather than as prima facie detrimental. Judging In Context Whether a particular nonconformity is a negative influence on a neighborhood is much more of a contextual issue than one of inherent problems with the nonconformity itself, lt has been acknowledged that, even though a nonconformity may be thought of as a nuisance, it may simply be the right thing in the wrong place, In a more contemporary view of what creates a sense of place, nonconformities may now be considered the right thing for many places, Hence, they should be dealt with on a case-by-case basis rather than by general requirements that seek to extinguish them, Selective removal rather than blanket elimination is a concept that should underlie nonconformity regulations if zoning codes are to evolve in the direction of promoting good urban form, diversity, activity. and creating quality mixed-use urban neighborhoods, As long as zoning exists as a land-use tool, there will be nonconformities and the unique challenges they represent. As such, nonconformities should not be uniformly perceived as problematic and requiring elimination. Celtainly, some nonconformities can be detrimental to ~urrounding properties and community goals and should be eliminated. The conventional wisdom on the treatment of nonconformities has begun to change through the acceptance of mixed-use development districts, overlay zones, allowances fOr residential uses in commercial districts, and loft-type residential 3 ....."".P!o."".LI....uv... "'""'", ","vv,,:, Public Hearing 406 conversions. It is better understood than at any time in the recent past how essential mixed use is to a livdy, vibrant urban environment. Trends toward form codes and emphasis on design in recognizing the benefits of recycling buildings rather than uses also bode well for the future constructive use and reuse of nonconformities. The affording of viable opportunities for adaptive , reuse of some of our cities' older, albeit nonconforming, buildings is a recognition that these unique assets can make a strong contribution to a city's vitality and sense of place, The regulation of all types of nonconformities-nonconforming uses as well as nonconforming structures-needs to be examined through fresh eyes, However, the nonconforming structure not designed for a use permitted in the district in which it is located, whether housing a conforming or a nonconforming use, is of , particular interest. The nonconforming use in the structure designed for conforming use generally has viable reuse options and can more easily be readjusted to market alignment for the use and purpose for which it was originally designed, The truly nonconforming structure type, the very different structure in the midst of structures of alternative design and purpose, has posed the A fomur JJeavy service/industrial facility successjillly adapted kJ a ndghborhood retail use. greatest issue and holds the greatest promise. It is these types of nonconformides that can make significant contributions to a neighborhood and afford invaluable oppottw1ities to express the diversity of use and form that best reflect the beauty of the urban tapestry, If the "disease" associated with nonconformities has been spread by restriction, elimination, prohibition, and termination, then the prescription for health is harmony, diversity, variety, charm, historic conservation and focus on form-the harmony of diversity. Rather than being perceived as corruptively infectious, they must represent and give rise to an infectious enthusiasm and desire to adapt, revitalize, and reuse. Nonconforming structures provide an existing infrastructure readily capable of housing mixed-use opportunities and the diversity and interest they promote, Process Issues Flexibility in relief is also essential. Processes for dealing with nonconformities must afford much more flexibility to deal with their irregularity and peculiarity. These processes must involve public participation and input in decision making and also must assure continued protection for the neighborhood. Traditionally, the use variance has most often been the prescribed means of ATTACHMENT "C" relief to overcome the myriad of restrictions on nonconformities, This is a difficult burden of prooffor the nonconforming user and also serves to make the use permanent if granted, This dilemma often nullifies neighborhood acceptance over the valid concern with lifetime vesting and permanency of use rights. It has been acknowledged that, even though a nonconformity may be thought of as a nuisance, it may simply be the right thing in the wrong place. [n the case of expansions, intensifications, and enlargements of nonconforming uses, it is preferable to employ the area variance as the means of relief. If granted, then the approval'is to expand, intensifY, or enlarge the nonconformity, but the use essentially remains nonconforming as modified, It is a vehicle through which the benefits to the user can be weighed against the potential detriments to a neighborhood. At the same time it does not declassifY a use as nonconforming. With respect, to reoccupancy of nonconforming uses and structures, especially in structures not designed for conforming use, the special use permit is the most attractive option, The suggestion is that dlis technique be employed to restore nonconforming uses to their prior, original, or lesser intensity or to reestablish a different use of similar intensity, This inherently keeps the restored use at a level commensurate with dle prior use of the building and avoids excursions into more intensive uses, Special use permits are typically not permanent, as are use variances, and they offer both greater flexibility and continued controls over reuse.. Special use permits also can be readily conditioned to clarifY the terms of reuse and to set operational constraints as necessary to protect adjacent properties. Time- limited special permit approvals also can be employed as a means of monitoring a use over a reasonable period of time to ensure that the conditions and operational limitations are in fact accomplishing their desired goal. Specific standards for this category of special permit can be adopted that allow reoccupancy for the accommodation of neighborhood walk-to-service uses, walk-to-work opportunities, live-work spaces, and the reuse of buildings with architectural or historic value, Using the special permit at once states a legislative intent that nonconformities are permissible, as is their continued use so long as in their particular location they are not detrimental to the surrounding neighborhood, This is a far cry from grudging acceptance. Another situation with respect to discontinuance needs to be addressed. That is the case where the nonconforming owner or user is befallen by personal circumstances, or by market 01' other matters that contribute to the inability to reoccupy a nonconformity within the established time period to avert abandonment of use. These may be situations where the owner or user fully intends to continue the nonconformity and is willing to maintain it and to make further investments, However, due to circumstances beyond their control, they cannot meet the codified deadline for reoccupancy. In these instances, the zoning administrator, after public notice and opportunity for comment, should be authorized to extend the time frame for abandonment. If the particular nonconformity has been problematic for the neighborhood and it is dis<;overed that the nonconforming user has been disingenuous in an attempt to 4 September 22, 2003 Public Hearing 406 mainrain and reoccupy, then the administrator can opt not to extend the abandonment period and let the nonconformity terminate, If there is reasonable supporting data to extend the abandonment period, then perhap$ a vacant building (and its associated neighborhood impacts) can be avoided. Many nonconforming structures are old buildings and are readily adaptable for small-scale commercial, and mixed uses. The Need for Old Buildings Codes typically permit changes of use in nonconforming buildings as long as the replacement use is restricted to the same degree as the former nonconforming use, Equal restriction has Afirehouu converted to a photography studio. often been adjudged in terms of being or not being regulated at the same level, in terms of use district, as the preceding use. What is needed is a more realistic and definite measure of intensity. Uses and technologies change over time, today more rapidly than ever, Calibration of intensity based on district hierarchy can be deceiving and can be an inaccurate measure. Specific criteria for measuring intensity of use such as traffic, parking, employee levels, deliveries, hours of operation, noise, and odors should be codified. This will promote re-occupancy within prior intensity limits, allow for flexibility, and at the same time protect neighborhood interests, The whole idea of a more forgiving, more flexible, and progressive view of dealing with nonconformities is in line with the tenets of smart growth and efficient land use, Many nonconforming structures are old buildings and are readily adaptable for small-scale commercial and mixed uses, As Jane Jacobs wrote in The Lift and Death of Great American Cities: "Cities need old buildings so badly it is probably impossible for vigorous districts and streets to grow without them,>> Many nonconforming commercial and industrial buildings can be used for residential purposes and offer exciting loft- style designs marketable to a wide range of people. Nonconforming structures in neighborhoods can accommodate walk-to-neighborhood services and work 5 ATTACHMENT "C" possibilities, live-work space, and more walkable, active, and interesting urban neighborlioods, I suggest that comprehensive plans and neighborhood plans include a strategy for the use and reuse of viable nonconforming structures, Also, clearly articulated purpose statements should be included in zoning codes, enunciating a community's policy for the regulation of nonconformities and relating that policy to a,preconceived plan of action, A nonconformity management plan can serve to delineate and categorize those nonconformities that are capable of contributing in a positive way to the character and needs of the community and also cite those that are, incapable of contributing and warrant elimination, Just as such plans are needed to create a vision for new development, they can be useful in establishing a blueprint for the rehabilitation and reuse of existing nonconforming buildings, It is important to view the nonconformity supply of a city, prospectively as having potential for reuse and added value, Planning and promoting accordingly will encourage private- market building decisions to bctor in the potential of nonconformities with an eye toward creative, profit-yielding reuse and adaptation, This kind of planning effort lays the foundation for discretionary decision making and substantiates and supports selective treatment over cateporical elimination, Proces;~s used to employ regulations and f.1cilitateplans associated with nonconformities should be flexible but also must afford a reliable measure of certainty. _ In Rochester, New York, we have chosen to embark on a new approach to the regulation of nonconformities. It is based on many of the ideas expressed in this article and is evident in our 2003 zoning code. It is one that seeks to use our man-made urban resources most efficiently. I believe we are headed in the right direction and that time and experience will prove just how valuable these diamonds in the rough can be. A copy of the Rochester, New York, nonconforming uses, ordinance is available to Zoning News readers by contacting Micllael Davidson; Editor, Zoning News, American Planning Association, 122 South Michigan Avenue, Suite 1600, Chicago, IL 60603, or send an e-mail to mdavidson@planning.org, NEWS BRIEFS Can D.C. Require a University 10 House Its Students on Campus? George Washington University (GWU) and the District of Columbia's Board of Zoning Adjustment (BZA) have been duking it out for years, An ever-increasing enrollment requires university students to look off-campus for their housing, most often in the nearby Foggy Bottom and West End neighborhoods, The BZA is concerned about protecting the residential character and stability of those neighborhoods and requires a special exception for a university use ii! areaS zoned residential or special purpose, The special exception process is a two-step review. The university is required to submit a campus plan that describes its general intentions /Or new land uses, After the plan is approved, the BZA reviews individual projects to determine whether they are consistent ,with the plan, The Campus Plan 2000 was approved with several conditions that GWU challenged in federal district court. The conditions include a requirement that the university house its freshmen and sophomores on campus as weU as providing on-tcampus housing for at least 70 percent of its students. Another condition imposed an enrollment cap tied to the university's supply "eptemoer 1.1., 1.UUj Public Hearing 406 of on-campus housing, After the court (George Washington University. v. District of Columbia, U.S, Court of Appeals, D,C. Circuit, February 4,2003, No, 02-7055 & No, 02-7060) ordered the BZA to revise some of the conditions, the BZA eliminated the enrollment cap but added a new condition that requires GWU to provide housing on campus or outside Foggy Bottom for 70 percent of its approximately 8,000 undergraduate students, plus one non-Foggy Bottom bed.for evelY full-time undergraduate student over 8,000, GWU went right back to court, arguing that the housing requirements violated the university's substantive due process rights, A substantive due process right requires that land-use regulations advance a legitimate governmental purpose (separate from procedural due process rights, which require the government to follow a fair process). However, before the D.C. Court of Appeals could even review the conditions the BZA had placed on the campus plan, it had to decide whether GWU has a constitutionally protected property interest, the threshold question. Did GWU have an expectation that a spec,ial exception would be issued, strong enough to qualifY as a property interest? If it did, then the court would look at the conditions the BZA placed on the campus plan. Mer examining how other circuits have determined the existence of a property interest, the court concluded that the BlA's procedures iimit its discretion in granting or denying special exception permits, and thus GWU had a protected property interest in the permit, But did the board's requirement that GWU provide housing for its students away from the Foggy Bottom neighborhood rise to the level of egregious government misconduct, a violation of the university's substantive due process rights? Ultimately, the court said "no," GWU couldn't make a case that the BlA's condition reflects a hostility of the Foggy Bottom residents to its students--or a "group animus," Neither could the court find any irrationality in the BlA's requirement, "Given the [BlA's] concern that an excess of students in the Foggy Bottom area is negatively affecting the character of the neighborhood, it cannot be irrational for the [BZA] to adopt rules likely to limit or reduce the nwnber of students in the area." The court also commented on the BlA's condition requiring GWU to house its freshmen and sophomores on campus by saying, "[a] city might reasonably consider the youngest college students to be the ones most likely to disturb residents in the surrounding communities, as well as most likely to need. whatever shreds of parietal rules may subsist on campus." The court concluded that ilie BU's conditions "merely require ilie university to house its students in a way that is compatible with the preservation of surrounding neighbolhoods." Lora Luaro, AlCP Lora Lucero, AICP, is a land-uJe attomey in Albuquerqu~ and former editor of APA's Land Use Law & Zoning Digest, Court Finds Zoning Denial Discriminated Against Disabled On January 23, a U,S, District Court in Connecticut found that the city of New London, in denying a local mental health care agency's attempt to move its vocational training facility to a new building, violated the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973 by intentionally discriminating against persons with psychological disabilities, The case First Sup, Inc, v. City of New Lomum (2003 WL 678484 (D. Conn.)) is the latest in a growing number of cases where zoning decisions against similar institutional uses have been found to run afoul of these two acts. First Step, which provides vocational training to people with psychological disabilities, sought to relocate its existing ATTACHMENT "C" New London training facility to a downtown location that had more usable space and was handicapped accessible, It applied for a special use permit as an "educational establishment for learning disabled or mentally retarded adults" as well as a "rehabilitation facility," and proposed amending the zoning ordinance to remove the former use's exclusion of "adults with mental illness." The planning and zoning commission held four public hearings, at which neighbors expressed concerns about traffic impacts, their safety from First Step clients, drugs being brought into the neighborhood by those clients, and clients loitering in front of the facility, as well as about the mentally m in general. The commission first denied the proposed ordinance amendment as unnecessary because First Step could apply as a rehabilitation facility, then denied a permit for that use, Stated reasons for the denial included the lack of a public safety plan, concerns about the safety of First Step clients who must walk up a narrow driveway from a van ' drop-off zone in the front of the facility to the main entrance at the rear, and concerns about traffic from the site onto a narrow, home-lined road to the rear of the site. Citing neighbors' concerns, the commission also stated that the site is "not the proper site for the intended use," First Step successfu11y demonstrated violations of the ADA and Rehabilitation Act by showing that the mental disability of First Step clients was a significant factor in the commission's , . denial (ADA), or the sole reason for it (Rehabilitation Act), and that the city failed to make "reasonable accommodations" to avoid discrimination against First Step clients. The court found that the city's adoption of, and refusal to remove, the exclusion of mentally ill from the educational establishment use was evidence of discrimination, It also concluded that the commission's stated reasons for denial were merely pretexts for its discriminatory motives, finding that public safety concerns reflected "the misinformed and biased viewpoints" of opponents, that any pedestrian safety problem along the driveway was created by the commission's refusal to allow First Step vans to take clients to the main entrance at the rear of the facility, and that the facility would generate less traffic than the preceding use (a Department of Motor Vehicles office) or nearly any other potential use of the site. The court characterized the commission's labeling the site "improper" as "a thinly veiled adoption of the community's prejudice against the mentally ill." Furthermore, it noted that the city could have addressed the cited pedestrian safety concerns (which the court called "the only legitimate concern raised") simply by allowing vans to drop off clients at the main entrance at the rear of the' facility, at no cost to the city or its regulatory scheme. Stephen Sizemore, AlCP Stephm Sizemore, Ale?, is the editor of APA's Land Use Law & Zoning Digest, ZtmiJ'l NtwI i. a monthly newsletter published by the American Planning Assodadon. . Sub#cripdon. Olrc available foc $65 (U .S.) and $90 (foreign). W. Paul Farmer. AIeP. Exocuuve Director; William R. Klein. Ale., Director \)1' Research. Zo"ing NnuJ i. produced.. APA, Jim Schw.b, AlCP, and Midud D1Vidson, Edito,,; Barl}' Bain, ArCP, Fay Dolnick, Josh Edwards. Sanjay Jeer. Aler, Megm Lewi" Aler, Marya Morris, AIep, RobertI> Requejo, Lynn Ross, Reporters; Sherric Matmcws. Assistant Ed.ifor; Usa Barton, Dcagn and Production. Copyright C2003 by American Planning As.ociuion, 122 s. Michigan A.e.. Suite 1600, Chicago, IL 60603, The American Planning Aaocialion also h.. offi... at 1776 M....chu..'" A.... N,W.. Washington, DC 20036; www.planning.org All rights res<rved, No part of rhi. publication may be reproduc<d or utiliud in 20)' form or by any means, d<Ctronic or mechanial, including pho.ocopying. recording. oc by any inform.bon ..orage and retrien1l)'1tCID, without permission in writ.ing lrom the Americm Planning Aaociation. Printed on recycled p2p.., including 50-70% recycled fiber ~ and 10% postconsumer wastc. W 6