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Thread: Nonconforming buildings

  1. #1
    Cyburbian AG74683's avatar
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    Nonconforming buildings

    Our nonconforming building language is boilerplate standard stuff. It reads "If a building is nonconforming, it may be enlarged in any way that will not increase the extent of nonconformity, nor create any new nonconformity, provided that the use of the building is a permitted use for the district in which the building is located".

    Now I've always held that this means no increase in building footprint, which is obvious. What would your interpretation be if they are adding an additional story to a nonconforming home? We have no height limitation here. I'm beginning to wonder if this could be deemed an increase in the extent of the nonconformity. I've had a few of these come through mostly because these homes are moving from septic to sewer and are finally able to add additional bedrooms, but can't do it without going straight up. I haven't gotten any complaints about these structures going up, but I want to be able to defend the decision or change course for future uses.

  2. #2
    Unfrozen Caveman Planner mendelman's avatar
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    I presume in these instances the building setbacks are nonconforming. I would simply say that increasing the height of the building does not reduce the setback further (more nonconforming) and therefore the 'impact' on the adjacent properties is still the same.

    Also, since you're a one man shop and presumably trusted by your supervisor (which I presume is the CM only and no one else), then make sure the CM is informed and comfortable with the interpretation/application of the code and then put that in writing somewhere.

    And don't over think it. If people disagree (ie community members) let them appeal your administrative decision through the necessary process.

    I've actually recently discovered the administrative value of my non-conforming codes and they have been very helpful. We actually can allow up to 25% increase to a nonconformity even for a nonconforming use.
    I'm sorry. Is my bias showing?

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  3. #3
    Cyburbian RandomPlanner's avatar
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    I've dealt with this problem just as described -- can a nonconforming building build up legally because they are not increasing their footprint? My answer was no, even if the footprint is not increased, the nonconforming building is being increased. For me, that wasn't a precedent I wanted to set.

    And as mendleman said (when referring to the contrary), I made the decision, was ready to back it up, and my boss let me make that decision. (I don't think he ever told me if he agreed or disagreed with my decision. He always backed me up though, which I really loved!)
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    Cyburbian AG74683's avatar
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    Quote Originally posted by RandomPlanner View post
    I've dealt with this problem just as described -- can a nonconforming building build up legally because they are not increasing their footprint? My answer was no, even if the footprint is not increased, the nonconforming building is being increased. For me, that wasn't a precedent I wanted to set.

    And as mendleman said (when referring to the contrary), I made the decision, was ready to back it up, and my boss let me make that decision. (I don't think he ever told me if he agreed or disagreed with my decision. He always backed me up though, which I really loved!)
    I'm mostly worried because these homes that are adding up are all lakefront for the most part. I can see the inevitable complaint of a two story home next to a one story. Two story has a great view of the lake over one story, BUT one story adds on and ruins the view and the property owners perceived property value. From a tax standpoint, I welcome the addition because it adds to our taxable value on the home. To drag them through a variance process just makes us (the County) look bad and puts the property owner in a difficult situation because I honestly don't see how adding a new story could meet the burden of proof variance approval requires in this state. I ruled on the side of "less government" in this case, deciding that the non-conformity is not increasing since the setback distance remains the same, but I could see that my defense could be easily defeated if an appeal went past the Board of Adjustment. I'm certain the CM and County Commissioners (our BoA) would be on board with my decision, but if it goes past them it's a whole new ballgame.

    EDIT* CM agrees with me. Likely the BoA would follow suit. I also sent out the same question to the NC Planning Listserve. Overwhelmingly the responses have followed in my favor.
    Last edited by AG74683; 29 Mar 2016 at 1:10 PM.

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    Cyburbian RandomPlanner's avatar
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    Quote Originally posted by AG74683 View post
    I'm mostly worried because these homes that are adding up are all lakefront for the most part. I can see the inevitable complaint of a two story home next to a one story. Two story has a great view of the lake over one story, BUT one story adds on and ruins the view and the property owners perceived property value. From a tax standpoint, I welcome the addition because it adds to our taxable value on the home. To drag them through a variance process just makes us (the County) look bad and puts the property owner in a difficult situation because I honestly don't see how adding a new story could meet the burden of proof variance approval requires in this state...
    That's the kicker -- an additional story can't meet the burden of proof for a Variance...thus no Variances are given.


    On a lakefront, I would be even more concerned about septic. That's not an issue in your community? I had several communities that kept wanting to build out their lakefronts, make seasonal cottages into year-round homes. The old septic tanks couldn't accommodate the new/ -ly added-onto structures and because the lots were so small and overcrowded, there was just no room for the new septic system. It would have been a sh#! mess (literally)!

    Rural planner here...
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  6. #6
    Cyburbian dvdneal's avatar
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    off topic:

    You wouldn't believe the amount of arguments I have with people about putting in bigger septic tanks when they add on to the house. Then again as a rural planner you might.

    My weird take on not extending the nonconformity, we allow the house to expand, just not in a way that makes the problem worse. If the house is in the front setback, then it can't add to the front. It can add to the side or rear as long as there is no encroachment. A second story would be fine because it doesn't expand on the encroachment.
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  7. #7
    Cyburbian AG74683's avatar
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    Quote Originally posted by RandomPlanner View post
    That's the kicker -- an additional story can't meet the burden of proof for a Variance...thus no Variances are given.


    On a lakefront, I would be even more concerned about septic. That's not an issue in your community? I had several communities that kept wanting to build out their lakefronts, make seasonal cottages into year-round homes. The old septic tanks couldn't accommodate the new/ -ly added-onto structures and because the lots were so small and overcrowded, there was just no room for the new septic system. It would have been a sh#! mess (literally)!

    Rural planner here...
    The reason we are starting to see these is because the sanitary district sewer system is beginning to come online in our lakefront communities.They are now able to disconnect and abandoned their septic systems in certain locations.

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    Cyburbian michaelskis's avatar
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    I have had this issue come up in the past and no permit would be issued. The reason for the argument is the impact is actually amplified because the effect of a one story wall within the setback is less than the effect of a two story wall within the setback. Depending on the orientation of the structure, you would have decreased air and light onto the neighboring lot.

    I have a legal opinion that stated that one cannot increase the cubic content of a structure within the required setbacks. This was a case where someone wanted to put a pitched roof on a structure and 3 feet was within the required 10-foot setback. The ZBA denied the variance too.
    If you want different results in your life, you need to do different things than you have done in the past. Change is that simple.

  9. #9
    Cyburbian AG74683's avatar
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    Quote Originally posted by michaelskis View post
    I have had this issue come up in the past and no permit would be issued. The reason for the argument is the impact is actually amplified because the effect of a one story wall within the setback is less than the effect of a two story wall within the setback. Depending on the orientation of the structure, you would have decreased air and light onto the neighboring lot.

    I have a legal opinion that stated that one cannot increase the cubic content of a structure within the required setbacks. This was a case where someone wanted to put a pitched roof on a structure and 3 feet was within the required 10-foot setback. The ZBA denied the variance too.
    I'm guessing the opinion came from Michigan? Any idea how your NC jurisdiction would handle it? I got an email from the Public Law and Government guru here in the state that hinted that ambiguous standards like ours must always be resolved in favor of the landowner, That is backed up by case law.

    Right now I've gotten 15 replies to my poll. 10 go with Option A - No expansion of the nonconformity, 5 go with Option B - Expansion of the nonconformity.

  10. #10
    Cyburbian Richmond Jake's avatar
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    I've always operated under the position that an addition to a nonconforming structure must conform...don't make the structure more nonconforming by adding additional bulk/mass into a required setback.
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  11. #11
    Cyburbian michaelskis's avatar
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    Quote Originally posted by AG74683 View post
    I'm guessing the opinion came from Michigan? Any idea how your NC jurisdiction would handle it? I got an email from the Public Law and Government guru here in the state that hinted that ambiguous standards like ours must always be resolved in favor of the landowner, That is backed up by case law.

    Right now I've gotten 15 replies to my poll. 10 go with Option A - No expansion of the nonconformity, 5 go with Option B - Expansion of the nonconformity.
    Our ordinance requires any new construction to meet applicable setbacks. It does not matter where the new construction is or if that new construction is an addition onto an existing structure.

    On a related note, say you have a building that encroaches 3 feet into the required 10-foot side yard setback. If they wanted to build an addition onto the house with the same encroachment, I imagine you would tell them the addition needs to 10-feet from the side property line. How is that any different if they went up instead of out?
    If you want different results in your life, you need to do different things than you have done in the past. Change is that simple.

  12. #12
    Cyburbian
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    Quote Originally posted by AG74683 View post
    Now I've always held that this means no increase in building footprint, which is obvious. What would your interpretation be if they are adding an additional story to a nonconforming home? We have no height limitation here. I'm beginning to wonder if this could be deemed an increase in the extent of the nonconformity. I've had a few of these come through mostly because these homes are moving from septic to sewer and are finally able to add additional bedrooms, but can't do it without going straight up. I haven't gotten any complaints about these structures going up, but I want to be able to defend the decision or change course for future uses.
    If these are non-conformancies due to setbacks (as opposed to lot coverage) then I would say you can actually increase the footprint of the building, just not in the direction of the non-conforming setback.

    As for going up, yes you can go up, just not on the portion that's within the non-conforming setback. If the nonconformance is based on lot coverage, then I would say you can go up on any part of the existing building, you just can't make the footprint bigger.

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