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Zoning Non-conformities in form-based codes

luckless pedestrian

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I have written a draft of blended code to retrofit a commercial/retail corridor. The form-based parts include maximum setback of 15' and 40% fenestration requirements. I also put in that the Planning Board reviews non-conforming situations when additions or re-development occurs so there can be some case by case analysis. Most lots will be non-conforming to these 2 requirements

A very influential/powerful landowner who owns, develops and brokers a lot of land in this corridor has stated that the non-conforming situation for this area will render them useless and worthless in the market because people don't want to be non-conforming. She will have difficulties leasing, and in some cases, there are deed restrictions that prohibit things like windows and restrict where a building can be on the lot.

For the form-based code folks in here - how did/do you handle this?

It's very demoralizing, I will say, as I am now forced to remove these requirements.

any thoughts are welcomed!
 

Dan

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I feel your pain.

Remember, private restrictions need to conform to local law, not vice versa. If the original developer really wanted development to follow the standards of the deed restrictions, they should have considered a PUD years ago.

One of the places where we're hoping to apply the FBC I've been working on is an area dominated by existing vehicle-oriented retail and office development. The nonconformity provisions of the FBC have redevelopment in mind, but also interim accommodation and possible retrofitting of vehicle-oriented development. Basica lly, they're provisions for incremental sprawl repair.

It's a building type-based FBC. Regarding building types of existing buildings:

(1) Transitional building type. The Planning Director (or their designee) will assign a transitional building type to all existing nonconforming buildings on a TND site. The transitional building type will most closely match the current form and function of the building. (Example: a freestanding fast food restaurant or chain drugstore is like a one story storefront building.) The owner of a building may appeal its building type assignment to the Zoning Board of Appeals.

Requirements in this code for the assigned transitional building type apply to existing nonconforming buildings. Exceptions are in this section.

1594834545465.png

(2) Future building type. A subdivision plat in a TND site must assign a future building / lot type for all lots with an existing nonconforming building. Future building type may be the same as or different than the transitional building type. The zone must allow the building type.

Requirements in this code for the future building type apply to new buildings on a lot.

Regarding alteration of existing buildings:

(1) A nonconforming structure may have exterior changes (including additions) only if they:
• reduce, remove , or do not affect the extent of nonconformity; and
• meet all relevant requirements of this section and code.

(2) For the purposes of this code, new screening structures, architectural elements, roof forms, or solar panels or wireless facilities on a nonconforming building do not increase the extent of nonconformity, if they meet all relevant requirements.

Regarding additions:

Addition: front and side

Any front or corner side addition to a nonconforming structure must reach the build-to area for its building type. The addition does not need to meet minimum frontage occupancy for the building type.

1594834512135.png

An interior side addition to a nonconforming structure must be in the front build-to area for its building type, unless the building meets minimum frontage occupancy requirements.

These requirements do not apply if a ① liner building, or ② designated pad site for a future liner building, is between the street and proposed addition.

1594834492188.png

Addition: rear

A nonconforming structure may have a rear addition. A nonconforming structure on a through lot may have a rear addition only if:
• a ① liner building or ② designated pad site for a future liner building is between the street and proposed addition; or
• the addition will function as a second front for the building. If this is the case, the addition must extend to the build-to area for the second street frontage.

1594834469857.png

Building and floor height of an addition

(1) An addition to a nonconforming structure may have a floor height that matches the nonconforming floor height of the existing structure.
(2) An addition to a nonconforming structure must not add stories.

Building and site design requirements for an addition

(1) An addition to a nonconforming structure must meet these building and site design requirements.
• Design consistency on visible elevations (§ XXX).
• Building construction (§ XXX).
• Overhanging building parts (§ XXX).
• Change of cladding materials on an outside wall (§ XXX).
• Window and door area (§ XXX).
• Blank wall area (§ XXX).
• Rooftop equipment screening (§ XXX).
• Wall mounted equipment screening (§ XXX).
• Waste collection, outdoor storage, and ground mounted equipment areas (§ XXX).
• Storefront frontage feature, if the transitional building type is a ① one story storefront building, ② mixed use storefront building, ③ large footprint building, or ④ neighborhood service station.


(2) An addition may have the same ① cladding materials, ② windows and door shape and pattern, and ③ roof shape as the existing nonconforming building.

Regarding new buildings on a lot with existing nonconforming buildings:

Any new building on a lot with a nonconforming building must meet build-to area requirements for the building type, until the minimum frontage occupancy for the lot is met.

1594834435427.png

Regarding mechanical equipment

New, moved, and replacement rooftop and wall-mounted mechanical equipment must have screening that meets equipment screening requirements in this code.

Regarding damage and destruction, and accommodating a future street grid. (This was written with a long shopping center building in mind.)

(1) If a nonconforming structure has < 50% of its replacement cost in damage, its owner may repair or rebuild it to the condition it had just before the damage.

Repair or rebuilding must:
• reduce or remove nonconformities where possible; and
• not expand or create new nonconformities.

(2) If a nonconforming structure is removed or destroyed, or has ≥ 50% of its replacement cost in damage, its owner must:
• repair or rebuild it in a way that makes it meet building disposition and site improvement requirements for the assigned future building type on the lot; or
• demolish and clear it from the lot.

(3) If a part of a nonconforming structure in the path of a planned thoroughfare right-of-way is ① destroyed, or ② has ≥ 50% of its replacement cost in damage, the building owner must demolish and clear it from the lot. (Also see § xxx: Nonconforming buildings and block length.)

(4) Replacement cost of a structure is based on:
• xxxxxx

And ...

(1) The first preliminary and final subdivision plat for a subdivision phase in a TND may make a new nonconforming lot without the need for a variance, only to accommodate an existing nonconforming building and its site. Later replats must not ① make new nonconforming lots, or ② increase the level of nonconformity for a lot.

(2) If all principal buildings on a nonconforming lot are removed or destroyed, resubdivision to meet these requirements must happen before any redevelopment.
• Building type, lot size, and lot dimensions for future building types. (See § XXX: building/lot types and disposition.)
• Thoroughfare and street pattern. (See § XXX: nonconforming buildings and block length.)

Nonconforming parking lots. This is where things get interesting. The FBC doesn't allow parking between a building and the street. The solution: liner buildings, or at least provisions for future liner buildings.

Upgrading nonconforming parking

Nonconforming off-street parking areas on a lot must be changed or rebuilt to meet all off-street parking design, access, siting, and landscaping/screening requirements of this code, as much as possible, when one of these actions happens. These actions also need a zoning permit.

• Adding new off-street parking spaces.
• Reconstructing or repaving ≥ 25% of the total parking area surface over a ≤ 5 year period. (“Reconstructing” is removing old paving material, and replacing it with new or recycled paving material. “Repaving” is placing a new layer of paving material over an existing surface.)
• Increasing the principal building footprint or GFA on the lot by ≥ 25% over a ≤ 5 year period.
• Remodeling of principal buildings where the cost over a ≤ 5 year period (as shown on building permit applications, adjusted for inflation) is ≥ 25% of the current assessed value of the structures.
• Removing or replacing principal buildings.

Nonconforming parking in the front or corner side yard between a principal building and thoroughfare may stay, only if:
• it is ≥ 20’ from right-of-way line into the lot; and
• the area between parking and the street has improvements to make it a site for future liner buildings. (Example: removed parking, graded “shovel ready” pad site, utility provisions.)

1594834332554.png

A nonconforming access drive in the front or corner side yard between a principal building and a thoroughfare may stay, only if it is ① critical for site circulation, or ② required as a fire lane. The area between an access drive and thoroughfare must have improvements to make it a site for future liner buildings, where possible.

A nonconforming parking area or access drive in the front or corner side yard that stays must have screening that conceals it as much as possible.

Removing nonconforming parking

The owner of a lot must remove all its nonconforming off-street parking within 2 years of one of these actions.

• All principal buildings on a lot are removed or destroyed, and no pending or approved site plan proposes reusing part of the old parking area.
• Site plan or subdivision approval creates a lot or assigns the area for a building type or park.

Thoroughfare improvements and removing nonconforming access

Access to an existing parking or service area from a new, repaved, or upgraded thoroughfare must meet relevant access requirements in this code. (See § XXX.) Thoroughfare construction, repaving, or upgrading projects must remove any ① nonconforming or redundant access drives, and ② oversized or continuous curb cuts.

Dealing with other site features

Damaged or destroyed site feature

If nonconforming fencing, a dumpster enclosure, outdoor storage screening, or a light pole is damaged or destroyed beyond reasonable repair or ≥ 30% of its replacement cost, the responsible person or entity must:
• remove the site feature; or
• replace it with a site feature that meets relevant requirements for the feature in this code. (See § xxx)

Extent of a nonconforming service area

If the extent of a nonconforming service area grows (examples: added dumpster, storage area, or ground-mounted mechanical equipment), the entire service area must meet all relevant requirements for the feature in this code. (See § XXX.)

Upgrading nonconforming landscaping, screening, and service areas

(1) If any of the actions that need upgrading nonconforming parking happen (§ XXX), the lot must be brought into compliance with all landscaping, fencing, service area (waste collection, outdoor storage area, and outdoor lighting requirements in this code. (See § XXX)

(2) If part of a parking area is reconstructed, repaved, or removed, that part of the parking area must be brought into compliance with all landscaping, waste collection area, outdoor storage area, and outdoor lighting requirements of this code. (See §XXX.)
 

luckless pedestrian

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I think I would get tarred and feathered if I presented that but it is THE RIGHT WAY TO DO IT! ugh - depressing...
 
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Dan

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I think I would get tarred and feathered if I presented that but it is THE RIGHT WAY TO DO IT! ugh - depressing...
What other options are there? If the powers that be want to keep the area as it is now, and your local comp plan is silent on the future of the area, why bother with an FBC that mandates something else?

I rewrote our planned standards a few times, to try to balance the desired outcomes of the comp plan and FBC with the idea of not scaring potential stakeholders away from the idea of embracing the code and adopting a regulating plan, versus going with a PUD where the process is more grueling, and the outcome isn’t certain.
 

mendelman

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Dan - your code is a lot of heavy lifting and determinism while also being an exemplar of technocratic wizardry (not that there's anything wrong with that).

I prefer the zoning district we have for our primarily auto-oriented commercial corridor. Ours simply has zero setbacks, max building heights and minimized parking requirements, therefore it's almost impossible to have non-conforming building forms and/or siting. It works pretty well for us, but our corridor is fully built-out and also pedestrian friendly-ish and technically walkable from the neighboring residential neighborhoods to the east, west and south.

Our downtown zoning district is a bit more form-based, but only in that it requires zero setback and has specific building design requirements for pedestrian orientation and storefront transparency.

I wouldn't get to harsh on people from an interpretation standpoint regarding 'expiration of non-conformities'. I think expiring non-conforming uses is often more important than building form/siting.
 
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