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Thread: Mixed use zone with different setbacks based on use

  1. #1
    Cyburbian
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    Mixed use zone with different setbacks based on use

    In our Town's mixed use zone, businesses and non-residential activities have 0/0/5 setbacks (front/side/rear, in feet). Single and multi-family dwellings have 7/7/5 setbacks. I think this is a bit strange in the first place.

    An individual owns a building that is built nearly to the property lines and has been there since before the zoning code. It had been two apartments for a long time (non-conforming because of setbacks). About 5 years ago, the owner turned it into a restaurant/bar. Suddenly, the non-conforming structure conformed again. Now, the owner wants to go back to apartments. Non-conforming uses "expire" in one year in our zoning code, so this doesn't apply.

    So to the owner...tough cookies, right? Since the building doesn't meet the rez setbacks, it can't be used for residential purposes. Too bad she already put a renter in what was the old restaurant.

    This example is an interesting crossover between non-conforming uses and non-conforming structures. I'm wondering if the real culprit isn't the strangely varied setbacks depending on use.

    Any thoughts or opinions or criticisms of my interpretation?

  2. #2
    Cyburbian hilldweller's avatar
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    Quote Originally posted by progmac View post
    So to the owner...tough cookies, right? Since the building doesn't meet the rez setbacks, it can't be used for residential purposes. Too bad she already put a renter in what was the old restaurant.

    This example is an interesting crossover between non-conforming uses and non-conforming structures. I'm wondering if the real culprit isn't the strangely varied setbacks depending on use.

    Any thoughts or opinions or criticisms of my interpretation?
    I agree with your interpretation that the setback variation is strange.

    Looks like she will need to obtain a variance or get shut down for the illegal unit.

  3. #3
    Cyburbian wahday's avatar
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    I think this may be a situation where it is necessary to step back from the specifics of the zone code and consider its intent. This building existed prior to current zoning when it was a residence, correct? At the time, this did not seem to be a problem in terms of incompatible use and I suspect that the intent of the current zoning was to guide any future development rather than to say that all the structures setback 7 feet must be converted to residences and vice versa. This would be somewhat counter to the objective of mixed-use zones.

    I don't know the context of the situation, but it sounds like the viability of a business in that location may have been troublesome and so I wonder if it is better to have someone occupying the building as a household rather than to leave it vacant waiting for a business to come in.

    Is there a significant threat to the health safety and welfare of the area to have it be a residence with 0ft. setback? Does it otherwise threaten or negatively impact the character of the area? Again, since this is a pre-exisintg structure that had been used as a residence, I question if there is really a "problem." It may be funky, yes, but that can be a desirable quality as well.

    One of the main objectives in many places that have instituted mixed-use development and zoning is that the structures are flexible in terms of use. Form-based codes in particular usually indicate a range of uses allowable in a particular area, but not the use of specific structures. This way, depending on economic forces and patterns, a particular building might be a business, then convert to a residence, then to offices, and maybe back to a residence again. The idea comes from observing some of our more desirable cities and really asking what it is people like about them. This adaptive change over time is a lot of what we think about when we say an older city has "character." An entire city block that was residential brownstones becomes transformed into first floor restaurants with apartments above, for example.

    Anyway, food for thought...
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  4. #4
    Cyburbian RandomPlanner's avatar
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    Quote Originally posted by wahday View post
    I think this may be a situation where it is necessary to step back from the specifics of the zone code and consider its intent. ...
    My initial reaction to the original post was to crinkle up my nose and look at the computer quizzically. Why do residential structures need to be 7' back but businesses can be on the lot line? Isn't part of the point of mixed use zones to allow uses that work and flow well together? I have a downtown that is all built up to the sidewalk, but a new chain store came in and wants to put the parking lot in front -- bad idea, I say. While your issue isn't quite as extreme, I would question the why when looking at that 7' difference. And as far as the owner is concerned, it might not take too much longer to amend that setback than to get a variance from the ZBA. (Then your zoning would make more sense, too, I think. )
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  5. #5
    Unfrozen Caveman Planner mendelman's avatar
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    This situation is not atypical. It occurs in many places. Actually, I live in a first ring streetcar suburb (read: urban) of Chicago and they require setbacks for buildings with residential and commercial uses. And they are even more stringent than progmac's - 20 foot front, 25 foot rear, 5 foot sides, but simple commercial use buildings have no required setbacks.

    The reasoning was probably for sufficient light and air penetration to the interior of residential units. But I agree with others that the setback requirements are unnecessary and just seem backward.

    For progmac's situation, it appears that a code change is in order to allow for residential occupancy of pre-existing non-compliant buildings.
    I'm sorry. Is my bias showing?

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  6. #6
    Super Moderator luckless pedestrian's avatar
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    This is why I don't write zoning dimensional requirements for use - because the uses can change -

    we have a variable front setback in our transitional area into the downtown - it's dependent upon the height of the building

  7. #7
    Cyburbian
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    well this issue has cropped up again...here is the story this time:

    an owner has a 2500 square foot lot, says they are going to build an "office." for residential, they would need a 5000 square foot lot (not to mention the setback issues above). they use a kit that looks is basically a house but build it to commercial structure requirements (e.g. ADA accessible).

    they built this just a couple of years ago. apparently it has been vacant and changed hands a couple of times since. the current owner assumed it was a residence and wishes to use it for a rental.

    so we are back to the shortcomings of the mixed use zone. dimensional requirements based on use.

    even though "single family dwelling" is a use by right in this district, the fine print reveals that when it was built as an office that use can't change because it was built on 2500 square feet of land.

    if she wants to use it as a rental, i'm going to recommend she submit a request to change the zoning ordinance to allow uniform requirements for buildings and residents.

    this is a frustrating issue for me. because the fact is, i see a little house there (even though it was built as an office) in a mixed-use district in an area where it is perfectly appropriate, but i can't let it be used as a residence per the code.

  8. #8
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    I agree that the setback rule needs to change and don't understand the different setback requirement within a mixed use zoning. With the current regs it looks like you will have more of the same issues in the future.

    If the setback issue is viewed as warranted in some cases, I would suggest leaving a provision for an imposed setback by staff or the governing board (as a condition of a rezone) which allows for a required setback based on specific circumstances or standards. That would leave the option for irregular lots or whatever other concern arises in the future where a setback is indeed necessary.

    Good luck.

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