HomeMy WebLinkAbout2003 09 22 Public Hearings 406 First Reading - Ordinance 2003-36 Regulation of Nonconforming Uses and Structures
COMMISSION AGENDA
ITEM 406
Consent
Information
Public Hearing X
Regular
September 22. 2003
Meeting
r/
L/Y
REQUEST: The Community Development Department and Office of the City
Attorney request the City Commission approve Ordinance 2003- 36, amending Winter
Springs Code Chapter 9, relating to the regulation of nonconforming uses and structures.
PURPOSE: The purpose of this Agenda Item is to request the City Commission review
and approve first 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 Ordinances in General. (procedures for adoption of
ordinances)
Winter Springs Code. Chapter 9.
CONSIDERATIONS:
Ever since Village of Euclid v. Ambler Realty 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 laissezlaire 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
September 22, 2003
Public Hearing 406
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 CITY COMMISSION OF THE CITY
OF WINTER SPRINGS, FWRIDA, AMENDING THE CITY CODE
RELATING TO THE REGULATION OF NONCONFORMING
USES AND STRUCTURES; PROVIDING FOR INTENT;
PROVIDING FOR CONTINUANCE AND REGULATION OF
LAWFUL NONCONFORMITlES UNDER THE REQUIREMENTS
SET FORm HEREIN; PROVIDING FOR THE ISSUANCE OF
Sl>>ECIAL PERMITS BY THE CITY COMMISSION FOR THE
CONTINUANCE OF SOME NONCONFORMITlES THAT
WOULD OTHERWISE BE TERMINATED WHEN
CIRCUMSTANCES DEMONSTRATE THAT THE OVERALL
COMMUNITY AND PUBllC POllCY OBJECTIVES OF THE
CTIY WILL BE PROMOTED AND ENHANCED; PROVIDING
FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES
AND RESOLUTIONS, INCORPORATION INTO THE CODE,
SEVERABILJ.']['Y, 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 prohtbited 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, THEREFORE, THE CTIY COMMISSION OF THE CITY QFWINTERSPRlNGS
HEREBY ORDAINS, AS FOLWWS:
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"
DRAFr 09/151OJ
Section 2. Code Amendment, Chapter 9. The City ofWmter Springs Code, Chapter 9, entitled
Land Development, is hereby amended as follows (underlined type indicates additions and sb.ikeout type
indicates deletions, 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
1: 1: 1:
ARTICLE IV. REQiJIRED IMPROVEMENTS
1: 1: 1:
Division 6. OfT-Street Parking and Loading
1: 1: 1:
See. 9-278. General provisions For ofT-street parking.
1: 1: 1:
(7) Existing uses. Nothing in the sections of this Code shaH pre\lent the reconstruction, repairing or
rebuilding and continued use of an, nonconfonning building or str ucture existing at the effect~e date
of this section, which is dat'llaged by fir, coHapse, explosion, or acts of God subsequent to such
effective date Reserved.
I: *. 1:
ARTICLE XL NONCONFORMITIES
See. 9-561. Intent: roles of interpretation: building and fire codes: definitions.
(a) Intent. This article is intended to pennit the continuation of those lots. structures. uses.
characteristics of use. or combinations thereof: which were lawful before the passage of the City Code or
which at one time had been lawfully pennitted under the City Code. but which would be prohibited.
regulated or restricted under the tenns 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 regulating 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 pennit these non-confonnities and non-compliances to continue until
they are removed through discontinuance. abandonment or amortization. but not to encourage 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"
DRAFT 09/tS'03
nonconfonning uses and structures are declared by this article to be incompattble with pennitted uses in the
zoning districts involved unless the City Commission issues a special 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-conforming uses and structures shall not be enlarged upon. eJq>anded. increased or extended.
nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district
unless otherwise provided by special pennit under this article.
(b) Rules for inte1pretation. 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 intermittent temporary or illegal use ofland building or structure or construction of an
unlawful structure shall not be a basis to establish the existence of a nonconforming use or structure. A
lawful building pennit issued for any building or structure prior to the enactment of this article. the
construction of which is in conformity with approved site plans. if applicable. and building plans shall not be
affected by 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 pennit. In the event there is a contlict with the provisions of this
article and a specific amortization provision requiring the removal or modification of a nonconforming
structure or discontinuance of a nonconforming 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 ofa subdivision recorded in the official record
books of Seminole County. Florida.. or a parcel ofland described bv 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) Nonconforming or Nonconformity shall mean any lot. structure. use of land 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-conforming uses and structures.
W Continuance of nonconforming uses. A nonconforming 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
A TT ACHMENT "A"
DRAFT 09/15103
ill No such nonconfonning u~ shall be enlarged or increased. nor extended to occupy a greater
area ofland than was occupied at the adoption or subseqllent amendment of the City Code:
unless such use is changed to a use pennitted in the district in which such use is located;
ill 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:
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
@ No additional structures which do not conform to the requirements of the City Code shall be
erected in connection with such nonconforming use ofland.
@ Contimmnce of nonconforming 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
@ 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 permitted 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.
Sec. 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 City Code. a single-family dwelling and customary accessory'buildings
'may be erected on any 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 conform 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 City Code. the lands
involved shall be co~dered to be an undivided parcel for the PUlJloses of development and this article. No
portion of said parcel shall hereafter be created and used as a se.parate parcel or sold or otherwise subdivided
which does not meet lot width and area requirements 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
aggregation ofland requirement. a single-family dwelling and customary accessory buildings may be erected
on any such single lot of record in a residential zoning district providing the land density 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 property values and building size.
For pU1J>Oses 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 uses ofstmctures or ofstmctures and premises 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 City 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 remains otherwise lawful
subject to the following .provisions:
ill No existing structure devoted to a use not pennitted 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 anv 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 by a pennitted use. shall thereafter conform 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"
DRAFT 09/15103
@ Where nonconfonning use status applies to a structure and premises in combination.
removal or destruction of the structure shall eliminate the nonconfonning status of the land.
Destruction for the putposes of this subsection shall mean damage by any means. such that
the cost to fej>air or reconstruct the stnlcture exceeds sixtY (60) percent of the assessed
value of the stnlcture 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 nonconformin~ use have been
removed from the premises and have not been replaced by similar equipment within one
hundred eight,y (180) days. unless other facts show intention to resume the nonconforming
use: or
ill When it has been replaced by a conforming use: or
@ Where the use is discontinued or abandoned for a period of more than one hundred eight,y
(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 nonconformit,y to come
into compliance with the current Cit,y Code the earliest shall apply.
(c) . No provision contained in this article. or elsewhere in the Cit,y Code regarding the abandonment.
discontinuance. or amortization of nonconforming structures or land uses shall nullifY. void. or
abrogate any similar provision contained in a dilly executed binding development agreement
approved by the Cit,y Commission.
Sec. 9-566. Repairs and maintenance.
W 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 Cit,y Commission pursuant to Section 9-568 or by building permit provided the
following conditions are satisfied:
(1) The renovation. repair. 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
A TT ACHMENT "A"
DRAFT 09/15103
(2) No violation of Sections 9-562. 9-564. 9-565 exists.
(3) The pennittee 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 subject 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 performed.
@ 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 safety. upon order of such official. However. this subsection shall not be
construed as a means of circumventing 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 purposes 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 tennsof the Cif3' Code.
See. 9-568. Special Penn it.
(a) The intent and purpose of this section is to recognize that there are lirriited and special circumstances
where overall communif3' and public policy obiectives of the Cif3' 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 communif3' values established in the
Cif3" 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 Cif3'
Code.
City of Winter Springs
Ordinance No. 2003-36
Page 7 of 11
September 22, 2003
Public Hearing 406
>>
ATTACHMENT "A"
DRAFT 09/15103
(b) The City Commission at a duly held public hearing may grant a special pennit to. allow the
continuation of a nonconfonnmg use or structure provided the following tenns and conditions are
strictly satisfied:
(1) The owner of the property on which the nonconforming use or structure exists files a Sj)ecial
pennit application provided by the City: and
(2) The applicant demonstrates that the continuation oftha nonconfonning use or structure:
a. is capable of contributing ill 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 compatible with. and not detrimental to. the surrounding neighborhood in terms 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.
Sec. 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 stl.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
herewith, and of the within Chapter 9. Article Xl Division 4 of the City code of the City ofWmter Springs,
Florida. .
ffl The lawful use of a building or structure existing at the time of the passage of this article may
be continued, alfttough such use does not confonn to the plOvisions 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"
DRAliT 09IlMa
use may be extended tIn onghOtlt the building promted nO sa tt(,taral alterations, except those
requiled by law or article, or ordered by an authorized officer to ensure the safety of the
building, are made therein. No Stlth use shaH be extended to octttpy any laud outside Stl~h
bUilding. ff such nonconfurming use of suchbuildittg is rentO'\Ied or the nonconfo1min8 use
of such bnilding is discontinued for a contiuuom period of not less than three hundred
sixty-five (365) days, every future use. of such premises shaH be in confurmity with the
provisions of tis article.
(ZJ The lawful use of the land existing at the time of the passage of this artiGle may be
continued, profflled, however, that no SUGh nonconfbm1ill~ use nlaY be extended t() oCCtlp}'
A ~eI area ofland than that OCGupied by such use at the time of the passage of this mtide.
ff such nonconforming use is discontinued for a continuous period of not less than three
hUhdred stxty-n:ve (365) days, any future use of such land shaH be in confonnity with the
pro v moms of this article.
ffl WhenevCf a nonconfornting ~ of A buil~ or land lwl been discontinued or chaftgcd to a
OODfomling 1m, such use; sb2dl not thcrc.afta bG cbaftsod to A nonoonfunrIins ~.
Section 4. Code Amendment, Chapter 16. TheCity 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
f: f: f:
ARTICLE Ill. SIGNS
See. 16-51. Defmitions.
I: * I:
Nonconforming sign is any sign which does not conform to the requirements of this division the City Code.
f: f: f:
See. 16-56. Nonconforming signs.
(a) Any sign which, when erected, confonned to the existing zoning regulations and subsequently is declared
nonconforming due to the enactment of this division or any amendment to the zoning ordinance may remain,
subject to the fuHowing provisions of Chapter 9. Article Xl and the following:
f: * 111:
City of Winter Springs
Ordinance No. 2003-36
Page 9 of 11
September 22, 2003
Public Hearing 406
ATTACHMENT "A"
DRAFf 09/15J03
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 shikeout 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 Sectioh 20-233 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 lawful use ofa buildins 01 stIucture existing at the time of the passage of this chapter may be
continued, although such use does not conroml to the pI'O\'isions of this chaptet', and such use may
be extended throughout the building provided no stI uctural alteratiom, except those reqoit ed by la-w
or ordinmce, or ordered by an authorized officer to ensure the safety of the btrilding, Me made
therein. No such use shaH be extended to occupy any land outside such ~. K such
nonconfurming building is removed or the nonconfunning use Of such building is discontinued for a
continuous pedod ofoot more than three lmndred sixty..fi"e (365) days, every mtme use of such
premises shaH be in confomlity with the provisions of this chapter.
(b) The lawful use of the land existing at the time of the passage of this chapter may be continued,
pro4ided, howe;er, that no such nonconforming 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. Ifsuro nonoonronnmg
use is discontinued fur a continuous period of not less than three hundred sixty-fne (365) days, My
mtW'e use ofsuch land shaH be in confounit} with the provisions of this chapter.
te) \Vhenever a nonconforming use of a builditlg or land has been discontinued 01 changed to a
confonning use, such use shaH not thereafter be changed to a nonconforming use.
Section 6. Repeal of Prior Inconsistent Ordinances 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. Ifany 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 11
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.
ATTEST:
ANDREA LORENZO-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:
Seco~d Reading:
Effective Date:
C:1Dclcummls 8Dd ~ Doc:umenls\AnthJny\Wak'CIi<nt Mattas\Wmltr Sjxing<I\NcmCoIIfcamingUseOrdinaDce_~26-03.wpd
City of Winter Springs
Ordinance No. 2003-36
Page 11 of 11
September 22, 2003
Public Hearing 406
ATTACHMENT "B"
CITY OF WINTER SPRlNOS
P ARTlAL:MINUTES
PLANNING AND ZONING BOARDILOCAL PLANNING AGENCY
REGULAR MEETING
SEPTEMBER 3, 2003
IV. PUBLIC HEARINGS
l'UJrL[C lmARlNGS
B. Ordinance NUmber 2003-36, An Ordinance Amending The City Code Regarding
The Regulation Of Non-Conforming Uses And Stmctures Within The City Of
Winter Springs.,
"1 MAKE THE MOTION THAT THE PLANNING AND ZONING BOARD
RECOMMEND APPROVAL OF ORDINANCE 2003..36, AMENDING CHAPI'ER
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.
~
~
?a
~
c::.
-===
~~
Discussion.
VOTE:
CHAIRMAN BROWN: AYE
BOARD MEMBER KARK: AYE
BOARD ME:MBER POEr AYE
VICE CHAIRPERSON KREBS: AYE
MOTION CARRIED.
J;
:.
ATTACHMENT C
IY/H
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APRIL 2003
AMERICAN
PLANNING
ASSOOATlON
II
Pigs in the Parlor or Diamonds in the Rough?
A New Vision for Nonconformity Regulation
By Arthur lentilucci
A fimctionally obsoUte firehouse converted to a retail store that sells /rafis.
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1;
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Most of us who have been involv~ 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 Villoge of Euclid v. Ambler Realty Co. (272 U.S. 365,
47 S. Ct. 114, 71.Ed 303 (926)), 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 i~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 nonconformities in most
cities. This has caused me to think anew about regUlating
nonconformities. Most recently, r 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.
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:september U, LUUJ
Public Hearing 406
Origins of Policy
Let's take a step back. Euclidean zoning codes neatly prescribed the
specific land uses that could be established in various districts
throughout a community. Each and every land use would be
compartmentalized and appropriately situated in a particular
district where a single category 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.
Early 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 that if
these nonconformities were eliminated immediately there would be
ATTACHMENT "C"
. of use and building types, traditional codes worked primarily to
restrict fluther 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 Unit'mity Law
&view (Vol. 2, No. 1) tllat "one difficulty, and by fur tile most
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.,,~d-us~ building in th~ h~art of a midmtial aua is 'lOW
home to a popular upscale ustaurant.
takings challenges and zoning would not be accepted by the body
politic. So, the drafters of the first codes foisted a compromise.
Inconsistencies were allowed to continue, but regulations 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 intention and the
result of imposed uniformity. Conformity was sought as a means of
avoiding potential conflict. The ultimate goal of most zoning codes
has been to achieve uniformity of uses witllin each zoning district,
which could only be accomplished by the elimination of those uses
and structures that do not conform. Hence, to achieve conformity
Arthur /e7Iti/ucci is the director of zoning for the city of Rochester,
New York.
2
An abandoned gasoline urviu station convaud to a bakery and coffie
shop in a ,uighborhood preurt'ation area.
serious, is the continuation of the nonconforming use without an
effective provision for its dimination. Until some method is devised
to permanently eliminate tile nonconforming 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 conformity.
In taking this route to purge districts "dean," 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 relief, 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 about the undesirable impacts of nonconformities.
Along the way, the allowance of nonconforming uses has been
characterized by the courts as a "grudging tolerance." This
characterization is reflected in the many regulations that
~epternberll,IUU3
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 nonconformitiesviolate the
spirit of zoning laws. It was thought that the existence of
nonconformities would lead to lowered property values, affect
the area's 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 olien 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.
An o.bsouu industrial facility conl'l!rud to loft apartmmts arId
offiCI! spau nl!ar usitkntial, comml!rcial, and imtitutionalllsts.
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, creativity, and vibrancy that
diverse, mixed-use buildings impart to a community.
limes 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 interwoven and designed with a focus on
ATT ACHMENT "C"
the public realm rather than on introverted private property
interest. Twenty-first-century 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 flexibility 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
public interest? What is needed is a new 'outlook with respect to
nonconformities--an outlook that sees them as not violating 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 false 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. 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. 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 loli-type residential
3
.:septemoer 1.1., 1.UUj
Public Hearing 406
conversions. It is better understood than at any time in the recent
past how essential mixed use is to a lively, 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 optiOlls arid
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 sttucture in the
midst of structures of alternative design and pUlpose, has posed the
A form~r heavy urvicdindustrial ftcility mcassfidly adapted kJ a
ndghborhood retail uu.
greatest issue and holds the greatest promise. It is these types of
nonconformities that can make significant contributions co a
neighborhood and afford invaluable opportunities to express the
diversity of use and form dlat 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 proof for 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. [t 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 this 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 the 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 cominued
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 [imitations 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 fur 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 or 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 circwnstances beyond their
control, they cannot meet the codified deadline for reoccupancy. [n
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 discovered that the
nonconforming user has been disingenuous in an attempt to
4
September 22, 2003
Public Hearing 406
maintain and reoccupy, men 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
A fir(;housl! convf!rted 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 c.1pable 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 factor 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 categorical elimination.
Processes used to employ regulations and facilitate plans
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 Roche.ster, New York, nonconforming uses .
ordinance is available to Zoning News readers by contacting
Michael 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
to 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 in 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 for new land uses. After the plan is approved, the BZA
reviews individual projects to determine whether they are consistent
.with the plan. The Campus Pltm 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 well as providing on-
campus housing for at least 70 percent of its students. Another
condition imposed an enrollment cap tied to the university's supply
September 22, 2003
Public Hearing 406
of on-campus housing. After the court (Gtorgt Washington University.
v. Distrid of Columbia, U.S. 0mrt of Appeals, D.C. Circuir,
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 CWU 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 every full-time undergraduate student over 8,000.
CWU 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 p~operty interest, the threshold
question. Did CWU have an expectation that a special
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.
After examining how other circuits have determined the
existence of a property interest, the court concluded that the BZA's
procedures limit 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." CWU couldn't make a case
that the BZA'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 BZKs requirement. "Given the
[BZA'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 number of students in the area." The court also
commented on the BZA's condition requiring cWO to house its
rreslunen and sophomores on campus by saying, "[al 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 the BZA's conditions
"merely require the university to house its students in a way that is
compatible with the preservation of surrounding neighborhoods."
Lora Lucero, AlCP
Lora Lucero, AICP, is a /a,/d-use attonury in Albuquerque 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 Step, Inc. v. City of New London (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
ill 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 Siep successfully 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, thc 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 gcnerate less traffic than the preceding use
(a Department of Motor Vehicles office) or nearly any other
potential use of the si te. 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 Siztmore, AlCP
Stephen Sizemore, AlCP, is the editor ofAPA's Land Use Law &
Zoning Digest.
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