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Form-based codes Nonconformities and retrofitting for "sprawl repair" in a form-based code

Dan

Dear Leader
Staff member
Moderator
Messages
18,332
Points
67
I'm finding that drafting non-conforming building and site feature provisions for a form-based code that may apply to retrofitting of vehicle-oriented commercial development is a lot harder than it seems. (The FBC I've been working on might find use for a large greyfield site, as well as some greenfield sites.) I can't find any language that addresses all the complexities of transitioning grayfield vehicle-oriented development to TND. What about non-conforming parking siting for a non-conforming building? What about pre-existing buildings that are so long, they prevent creating blocks that meet maximum block length requirements? How do you address building types? The standard nonconforming building provisions in Code Studio or Opticos FBCs don't scratch the surface of retrofitting. nor does the SmartCode or upstart PlaceCode. The Sprawl Repair Manual has a lot of suggestions for different buildings, but no language for implementation in a code.

Here's my attempt at code language to address nonconforming development and retrofitting. I'm trying to make this thing concise. However, even using the plainest active voice plain English, I'm pushing six pages of requirements for nonconforming buildings, architecture, parking lots, lighting, utility areas, signs, and landscaping.

(Revised language 1-22-2020)

New section: 272-706 Nonconformities and retrofitting

272-706.1 Overview

Buildings, structures, and site improvements built for a vehicle-oriented suburban setting are generally incompatible with traditional neighborhood development. However, some pre-existing but nonconforming buildings in a regulating plan area may be structurally sound, or many years away from the end of their structural or economic life.

Provisions in this section allow productive use, routine maintenance and repair, reasonable upgrades, and limited modification of existing nonconforming structures, site improvements, and other situations. Generally, any changes that this section allows must be done in a way that makes a nonconforming structure or site improvements better comply with this code, and fit into the context of traditional neighborhood development. This code aims at full compliance, through:

  • Modifying nonconforming aspects of the built environment to meet all relevant requirements of this code;
  • Long term retrofitting or redevelopment of sites with nonconforming structures and improvements; and
  • Transforming areas with fragmented or inefficient development into a complete mixed use neighborhood.
A nonconforming use may continue, but it can’t increase in area or intensity, or be replaced with another nonconforming use when it ends. The long term goal is to end nonconforming uses, or make them comply with this code.

272-706.2 Nonconformities: general

272.706.2.1 Continuation


A legally established nonconforming use, building, structure, or site improvement may remain; and have routine repairs, maintenance, updates, and energy efficiency upgrades under the rules of this section.

Uses, buildings, structures, and site improvements that were not lawfully established have no protection under this section.

272.706.2.2 Modification or expansion

A nonconformity must not increase in extent, intensity, or structural life.

New screening structures, or building-mounted solar energy collectors or wireless facilities, do not increase the extent of nonconformity for a use, building, or site.

272.706.2.3 Determination

An applicant may need to show evidence proving legal establishment of a nonconformity when applying for a permit or approval related to a nonconforming use, building, or site. An applicant is responsible for proving a nonconformity was legally established.

The Director of Planning or Zoning Administrator (or their designee) will decide if a nonconformity exists, and if it was legally established. An applicant may appeal the decision to the Zoning Board of Appeals.

272-706.3 Nonconforming use

A new nonconforming use may not replace another nonconforming use.

Otherwise, provisions for nonconforming uses in Town Code §270 (zoning code, §270-204 - nonconforming uses / use of land, §270-206 - use of building, and §270-212 - BZA determination) also apply to nonconforming uses in a regulating plan area.

272-706.4 Nonconforming building, structure, or site improvement: general

272.706.4.1 Transitional and future building type


(A) The Planning Director (or their designee) will assign a transitional building type (§272-403.2 - §272-403.18) to all existing nonconforming buildings in a regulating plan area, reflecting their current form and function as closely as possible. (Example: a fast food restaurant or chain drugstore building is physically and functionally like a one story storefront building.)

(B) A subdivision plat in a regulating plan area must assign a future building / lot type (§272-403.2 - §272-403.18) for all lots with an existing nonconforming building. Future building type can be different than the transitional building type.

(C) For an existing nonconforming building, relevant requirements for its transitional building type apply. For new buildings on a lot, relevant requirements for future building type apply.

(Add cross reference from 272-402 Lots and Buildings – How to use this chapter)

272.706.4.2 Alteration for conformity

A nonconforming building, structure, or site improvement may have alterations to reduce or remove a nonconformity, or make the entire building conforming. An alteration must not increase a nonconformity, or make new nonconformities.

272.706.4.3 Damage or destruction

(A) If a nonconforming building, structure, or site improvement has <50% of its replacement cost or current assessed value in damage (whichever is lower), its owner may repair or rebuild it to its earlier condition. Repair or rebuilding should reduce or remove any nonconformity where possible.

(B) If a nonconforming building, structure, or site improvement is destroyed, or has ≥50% of its replacement cost or current assessed value (whichever is lower) in damage, its owner must:

  • Repair or rebuild in a way that makes it meet all appliable requirements for the designated future building type in Articles 4 and 5; or
  • Demolish and clear it from the lot.
(C) If a section of a nonconforming building, structure, or site improvement in the path of a planned thoroughfare right-of-way is destroyed, or has ≥50% of its replacement cost in damage, the building owner must demolish and clear it from the lot.

272.706.4.4 Vacancy and abandonment

The right to use a nonconforming building ends if, for ≥ 300 days in a one year period:

  • The building is vacant, abandoned, or used only for storage or a similar passive use; and
  • The owner is not actively selling the building, or seeking another tenant or use for it. (“Actively” means ① marketing for sale or rental at or below a fair market rate; ② showing the site to potential buyers or tenants; and ③ maintenance of utilities, physical plant, building exterior and interior, and other site facilities in a way that allows re-occupancy without having to fix damage from neglect; not just listing the site as available real estate or displaying a for sale/lease sign.)
272-706.5 Nonconforming building: additions and alterations

272.706.5.1 Front or corner side addition


A front or corner side addition to a nonconforming building must:

  • Meet setback requirements for the building type; and
  • Extend into the minimum/maximum setback area (build-to area) for the building type, where applicable.
This does not apply on sites where liner buildings mask the nonconforming building.

A front or corner side addition does not have to meet minimum frontage occupancy requirements for the building type.

272.706.5.2 Interior side addition

An interior side addition to a nonconforming building must:

  • Meet setback requirements for the building type; and
  • Extend into the minimum/maximum setback area (build-to area) for the building type, where applicable, if the addition makes the front elevation longer.
This does not apply on sites where liner buildings mask the nonconforming building.

272.706.5.3 Interior or corner side addition to a building with nonconforming width

A nonconforming building that is longer than the maximum possible building length for the building type in the zone (maximum lot width - combined minimum side setbacks = maximum building width) may have a corner side or interior side addition, only if the addition:

  • Has architectural design, cladding, fenestration, articulation, and other details to make it look like a separate building; and
  • Is structurally self-supporting, without relying on the original building for support.
272.706.5.4 Rear addition

A nonconforming building may have a rear addition only if ① it is not on a through lot; or ② it is on a through lot, liner buildings will hide the affected part of the rear elevation.

272.706.5.5 Building and floor height

(A) An addition to a nonconforming building may have the same floor height as the existing structure, if the floor height is also nonconforming.

(B) Addition or alteration to a nonconforming building must not increase overall building height or number of stories. Exceptions are ① skylights; ② green roofs; ③ solar panels, antennas, and similar structures; and ④ structures or architectural features that conceal rooftop mechanical equipment.

272.706.5.6 Architectural design and site improvements for additions and alterations

(A) An addition to a nonconforming building must meet architecture and site design requirements for:

  • Design consistency on visible elevations. (§272-404.3.1)
  • Building construction. (§272-404.3.2)
  • Overhanging elements. (§272-404.3.4)
  • Different cladding materials on a wall or elevation. (§272-404.3.6)
  • Window and door area. (§272-404.3.8)
  • Blank wall area. (§272-404.3.9)
  • Rooftop equipment screening. (§272-404.3.11)
  • Wall-mounted equipment screening. (§272-404.3.12)
  • Waste collection, outdoor storage, and ground-mounted equipment areas. (§272-506)
(B) A nonconforming building, or affected tenant or retail/office space in a shopping plaza, must meet these architecture and site design requirements, if there is an addition to its footprint or GFA.
  • Rooftop equipment screening. (§272-404.3.11)
  • Wall-mounted equipment screening. (§272-404.3.12)
  • Waste collection, outdoor storage, and ground-mounted equipment areas. (§272-506)
(C) If additions since [code adoption date] add ≥25% to the footprint or GFA of a currently or formerly nonconforming building, the entire building and site must meet these architecture and site design requirements as much as structurally possible.
  • Required frontage feature. (§272-404.2)
  • Design requirements for all buildings. (§272-404.3.1 - §272-404.3.13)
  • Waste collection, outdoor storage, and ground-mounted equipment areas. (§272-506)
  • Parking and landscaping. (§272-503 and §272-504; see §272.706.8.1 below)
(D) If a nonconforming building has major changes or upgrades to its architectural design (≥5% of the building replacement cost or current assessed value, over a ≤ 5 year period), the entire building must meet these architecture and site design requirements as much as structurally possible.
  • Cladding materials. (§272-404.3.6)
  • Different cladding materials on a wall or elevation. (§272-404.3.6)
  • Trim. (§272-404.3.7)
  • Rooftop equipment screening. (§272-404.3.11)
  • Wall-mounted equipment screening. (§272-404.3.12)
  • Waste collection, outdoor storage, and ground-mounted equipment areas. (§272-506)
(E) New and replacement rooftop mechanical equipment must have screening that meets rooftop equipment screening requirements (§272-404.3.11).

272-706.7 Nonconforming lot

(Add cross-references from §271-402 Lots and Buildings – How to use this chapter and §272-703 Subdivision where applicable)

272.706.7.1 Subdivision and lot line adjustment with nonconforming building

(A) Subdivision in a TND may make a new nonconforming lot without a variance, only to accommodate a nonconforming situation with an existing building.

(B) Subdivision may divide the footprint of a building on a nonconforming lot, only if the resulting lots:

  • Meet building type, lot size, and lot dimension requirements for the transitional building type (§272-403); and
  • Correspond with self-supporting building sections, that do not rely on other parts of the building for support.
(C) A lot line of a nonconforming lot may move, if the adjustment does not create or worsen a nonconformity.

272.706.7.2 Allowed development and future resubdivision

If ① all or part of a principal building on a nonconforming lot is destroyed or demolished; or ② a nonconforming lot has no principal buildings, resubdivision or lot line adjustment to meet these requirements must happen before any (re)development.

  • Thoroughfare and street pattern. (§272-306)
  • Building type, lot size, and lot dimensions for the future building type. (§272-403)
272-706.8 Nonconforming off-street parking areas and access

272.706.8.1 Repair, maintenance, repaving, and reconstruction


(A) Nonconforming off-street parking areas may have routine repairs (sealing, restriping, filling potholes) and maintenance, without meeting relevant parking, access, landscaping, and screening requirements, (§272-503, §272-504)

(B) Nonconforming off-street parking areas in locations where this code does not allow it must not have repaving (new layer of paving materials) or reconstruction (removal of old paving material, and replacement with new or recycled material).

272.706.8.2 Situations requiring nonconforming parking to conform

(A) If any of these actions happen to a nonconforming off-street parking area, or the lot or site it is on:

  • Reconstructing or repaving ≥ 25% of the total parking surface after [code adoption date];
  • Adding new off-street parking;
  • Destruction or removal of a principal building;
  • Replacement of a principal building by a new conforming principal building;
  • Increase in the footprint or GFA of a principal building by ≥ 25% after [code adoption date]; or
  • Alterations or repair to a principal building over a ≤ 5 year period (as shown on building permit applications) costing ≥50% of the building’s replacement cost or current assessed value (whichever is lower);
The property owner (or responsible party) must remove or alter nonconforming off-street parking (or an associated part of a nonconforming parking lot) to meet all relevant parking, access, landscaping, screening, and outdoor lighting requirements. (§272-503, §272-504, §272-508) Conformance also includes:
  • Removing nonconforming or redundant access drives; and oversized or continuous curb cuts;
  • Removing off-street parking areas from parts of a site where this code does not allow it;
  • Removing nonconforming light poles; and
  • Meeting requirements for waste collection, outdoor storage, and ground-mounted equipment areas. (§272-506)
(B) Sites for parks or preserves must have all existing parking removed ≤ 12 months of final subdivision approval.

272.706.8.3 New lots on sites with nonconforming parking

Subdivision may make a lot where an existing nonconforming parking area is the principal improvement. (New lots dominated by existing parking may be unavoidable at TND sites with large existing parking areas.)

Off-street parking areas must not be a permanent principal use or improvement of a street-fronting lot. Off-street parking may be an interim principal use if:

  • The property owner (or responsible party) actively markets the lot for redevelopment. (“Actively” means ① marketing for sale or lease at or below a fair market rate; and ② showing the site to potential buyers or tenants; not just listing the site as available real estate or displaying a for sale/lease sign.);
  • There is an active site plan proposal or building permit for a new principal building on the lot; or
  • The lot is improved for future development that meets this code, with:
  • A cleared and graded area with all utility provisions for a new principal building;
  • A new conforming off-street parking area on ≤ 50% of the lot area (perimeter of the parking area, including all spaces, driveways, aisles, service areas, and associated landscaping); and
  • Other improvements to accommodate development, like stormwater infrastructure.
If none of these actions happen over ≥ 12 consecutive months, ① the right to use the lot or site for parking ends; and ② the property owner (or responsible party) must remove nonconforming parking areas and access drives.

272.706.8.4 Thoroughfare improvements and nonconforming access

Access to an existing parking or service area from a new, repaved, or upgraded thoroughfare must meet relevant access requirements. (§272-503) Thoroughfare construction, repaving, or upgrading projects must include removal of any redundant, oversized, and continuous access points.

272-706.9 Nonconforming outdoor lighting

If any of these actions happen to a nonconforming light pole of fixture, or the lot or site it is on:

  • Destruction or damage beyond reasonable repair, collapse, or removal (not including removal for maintenance); or
  • For parking or service area lighting, when any part of the surface it lights is reconstructed or repaved;
the property owner (or responsible party) must
  • Remove it, or
  • Replace it with lighting that meets ① relevant lighting requirements in this code, and ② outdoor lighting performance standards in the Town Code. (§272-307.8 D, §272-508, §173).
Other provisions in this article may require lighting to comply with this code. (§272.706.2.2, §272.706.4.3, §272.706.8.2)

272-706.10 Nonconforming waste collection, outdoor storage, and ground-mounted equipment areas

Other provisions in this article may require removing or altering service areas (waste collection, outdoor storage, and ground-mounted equipment areas ) to comply with this code. (§272.706.2.2, §272.706.4.3, §272.706.5.6, §272.706.8.2)

272-706.11 Nonconforming signs

Provisions for nonconforming signs in the Town Code (§270-259, zoning code / signs / sign maintenance and removal, nonconforming signs) also apply to nonconforming signs in a regulating plan area.

A freestanding nonconforming sign on a lot must also become conforming, or the sign owner (or responsible party) must remove it:

  • Before the use or occupant of the principal building changes (exception: multi-tenant/occupant buildings); or
  • When there is any expansion to the principal building GFA or footprint.


I know there's some missing context with cross-references to other parts of the FBC, but you should get the idea. Your thoughts?
 
Last edited:

Dan

Dear Leader
Staff member
Moderator
Messages
18,332
Points
67
Also, edits to neighborhood design requirements elsewhere in the code.

272-305 Transect zone allocation: add
There must not be enclaves or salients of parcels with non-NT zoning in or among neighborhood unit areas. (Include graphic)

Transect zone location should consider the presence of existing buildings; and their ① equivalent building type (§272-403.1 – 272-403.18), ② current and future use (§272-603), and ③ short- and long-term future. Zone location should not make the building type of an existing building nonconforming (example: give an existing large format building underlying NT-3 or NT-4 zoning, zones that don’t allow the building type), unless the owner plans to demolish it in the near future.

272-306 1 B Alignment and connectivity: add bullet point
(Thoroughfare layout must) Integrate existing buildings and site features in a way that makes them conform to requirements in this code as much as possible. (Include graphic)

272-306.2: add:
A regulating plan must show future blocks and thoroughfares that meet §272-306.2 D, even where an existing nonconforming building is in the way.

An applicant or developer may build a block with a longer side length or perimeter than what §272-306.2 D allows, if length or location of a nonconforming building is a barrier to a cross street. If a part of a nonconforming building that prevents meeting §272-306.2 D is removed or destroyed, the applicant must build planned thoroughfares through the now-vacant part of the site, before any subdivision approval (cross-reference nonconforming lot requirement) or rebuilding on the site.

Block side or perimeter length longer than what §272-306.2 D allows, because of nonconforming building length or location, must be made shorter to meet §272-306.2 D, ① when the nonconforming building, or ② the part of the nonconforming building preventing compliance, is removed or destroyed. (Also see [section].)



Again, sorry for the lack of context, and the wall of text.
 
Last edited:

Doohickie

Cyburbian
Messages
2,459
Points
34
A new nonconforming use may not replace an earlier nonconforming use.
Can you legally do this if the building complied with the code that was in place when the building was built? Is this saying that if a nonconforming building is being used for a business, and that business folds or moves elsewhere, that a new business can't move into the building? If you are, it seems like you're arbitrarily stripping the building of its value and you'd need to compensate the owner.

Caveat: I'm not a planner so maybe this is a stupid question.
 

B'lieve

Cyburbian
Messages
219
Points
9
Can you legally do this if the building complied with the code that was in place when the building was built? Is this saying that if a nonconforming building is being used for a business, and that business folds or moves elsewhere, that a new business can't move into the building? If you are, it seems like you're arbitrarily stripping the building of its value and you'd need to compensate the owner.

Caveat: I'm not a planner so maybe this is a stupid question.
Ooh, i second this question. That's definitely going to be a question from business owners already in the area you're rezoning--they'll want to know if they're ability to sell (or use their equity to get/refinance a business loan) will take a hit from your new code.
 

Dan

Dear Leader
Staff member
Moderator
Messages
18,332
Points
67
Ooh, i second this question. That's definitely going to be a question from business owners already in the area you're rezoning--they'll want to know if they're ability to sell (or use their equity to get/refinance a business loan) will take a hit from your new code.
The nonconforming use provisions in the FBC refer back to the regular zoning code. Our existing zoning code is awful in many ways. For one, it allows replacement of a nonconforming use with another use that may not be allowed in the same zone now, but which is allowed in the same zone as where the former nonconforming use is now allowed. From the zoning code:

Except as prohibited above, and subject to the requirement of obtaining site plan approval if required, a nonconforming use may be changed to another nonconforming use of the same or more restrictive classification ....

Example: let's say there is a nonconforming machine shop, normally allowed only in an industrial zone, in a commercial zoning district. If the machine shop goes away, the code allows replacement with ANY other use allowed in the industrial zone, because it's the "same restrictive classification". This is NOT normal for how zoning in the US treats nonconforming uses.

The FBC rule nullifies the "you can replace a nonconforming use with another nonconforming use" provision. If a machine shop goes away for more than 12 months, it can only be replaced with that exact same use, or a use that's now allowed in the district.
 
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