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HomeMy WebLinkAbout10122021 CAC PacketCENTRAL POINT CITIZEN'S ADVISORY COMMITTEE AGENDA October 12, 2021- 6:00 p.m. MEETING CALLED TO ORDER [[. ROLL CALL David Painter (chair), Robin Stroh, Carrie Reed, Mike House, John Eaton, Kristy Painter, III. MINUTES Review and approval of the July 13, 2021 Citizen's Advisory Committee meeting minutes. IV. PUBLIC APPEARANCES V. BUSINESS VI. DISCUSSION A. Bear Creek Greenway Fire Area Master Plan. B. Zoning Code Update Project. VII. MISCELLANEOUS A. Development Update B. Cottage Housing Tour Invitation. VIII. ADJOURNMENT Individuals needing special accommodations such as sign language, foreign language interpreters or equipment for the hearing impaired must request such services at least 72 hours prior to the City Council meeting. To make your request, please contact the City Recorder at 541-423-1026 (voice), or by e-mail at: deanna.caseyLu?ceutralpointoregon.-ov . Si necesita traductor en espanol o servicios de discapacidades (ADA) para asistir a una junta publica de la ciudad por favor Ilame con 72 horas de anticipaci6n al 541-664-3321 ext. 201. Page 1 of 25 Citizen's Advisory Committee Meeting Minutes : July 13, 2021 Page 2 of 25 City of Central Point Citizens Advisory Committee Minutes July 13, 2021 I. MEETING CALLED TO ORDER AT 6:00 P.M. II. ROLL CALL Present were: David Painter (chair), Robin Stroh, Kristy painter, Carrie Reed, Also in attendance were: Stephanie Holtey, Planning Director, Justin Gindlesperger, Community Planner and Karin Skelton, Planning Secretary. III. MINUTES Robin Stroh made a motion to approve the minutes of the April 13, 2021 Citizen's Advisory Committee meeting. Carrie Reed seconded the motion. All members said "aye". Motion passed. IV. PUBLIC APPEARANCES No public appearances V. BUSINESS VI. DISCUSSION A. Discussion regarding standards and regulations for Mobile Food Vendors and other vending units, such as food trucks, trailers and carts within the City of Central Point. David Painter read a statement describing the purpose and duties of the Citizen's Advisory Committee. Justin Gindlesperger said the CAC had discussed food trucks at the April 13, 2021 meeting He said the comments from that discussion involved areas of operation, hours of operation, and access to utilities. At this time these vendors are limited to C-4 and C-5 zones. Staff has drafted initial proposed standards and regulations which include allowing vendors in all commercial zones except EC and all industrial zones. They also address hours of operation, parking and distance requirements from restaurants, other vendors and points of access. He said there were actually two different types of vendors identified in the draft code. Single vendors and food courts which are comprised of multiple vendors sharing a large space. All vendors would require permission from the property owner and would be required to meet all standards for mobile food businesses. He reviewed proposed regulations including hours of operation, parking requirements signs, utilities, trash & recycling, supporting equipment and amplified music. Page 3 of 25 CAC Minutes July 13„ 2021 Page 2 Mobile food courts would be permitted on private property only with owner's permission. The Parcels would need to be at least 2000 sq. feet. They could be comprised of between 2 and 10 mobile units and all vehicles would be required to remain operable. There would need to be a site plan for the units identifying all signs, accessories, lighting, restrooms and utilities. The Committee discussed conflicts with brick and mortar restaurants. Mr. Gindlesperger said the restaurant owners had received the City newsletter in their water bills which included an article outlining the interest in mobile food vendors. The information was also on the City's website. At this time staff has not received any contact from local restaurant owners. The Committee discussed appropriate hours depending on location and ADA access.. Additionally they reviewed the permitting that might be required. David Painter asked if anyone in the audience had comments. Celeste Peets Creekside Circle Ms. Peets stated she and her husband were looking to lease a property for a food truck Court. She described "pods" in Eugene, Portland and Bend which were extremely popular. She said they envisioned such a pod in Central Point. She mentioned live music or entertainment as part of the vision. She explained they were in the preliminary stages and planned to begin talking with local business owners to get their input. She added they were looking to also include the sales of local beer and wine. She said ideally they might construct a restroom building with a kitchen area and perhaps utilize the building for the sales of the alcohol. Ms. Holtey asked if the pods in other communities were in residential or commercial locations Patrick Peets Creekside Circle Mr. Peets explained some were situated slightly off the main thoroughfares but near enough to be accessible from commercial areas. He described several pods in different cities. He mentioned Highway 99 would be a favorable location as it would be near to both commercial and residential areas. He said they had not yet identified a specific property. The committee said there were several areas in Medford where food trucks were located and discussed locations and safety issues. They thought the sale of alcohol might a problem. They noted there were OLCC regulations that would have to be met in addition to safety and City regulations and permits. Ms. Holtey explained the review process for the applications and stated that process would identify possible issues and that the code would need to address all areas of operation including noise, safety, hours and locations. She said the Committee could either request staff to bring this item back for additional discussion in October or they could forward a recommendation to the Planning Commission to consider as a discussion item which would include their concerns. The Planning Commission could then take it to a public hearing and the CAC members could attend each of those meetings. The Committee expressed concern about the competition with local restaurants. They concluded it would be appropriate to forward a recommendation to the Planning Commission as a discussion item including the concerns they had identified. Page 4 of 25 CAC Minutes July 13„ 2021 Page 3 Carrie Reed made a motion to recommend the draft standards and regulations for mobile food vendors to the planning Commission as a discussion item. Robin Stroh seconded the motion. All members said Aye. Motion passed. B. Consideration of residential zoning code amendments to support housing development in Central Point. Ms. Holtey explained the City is preparing draft code amendments to address needed changes in residential land use and development standards. She explained HB 2001 requires cities with a population greater than 10,000 to allow duplexes in single family zones. She reviewed the proposed adjustments to minimum densities in residential zones. She said the purpose was to provide alternatives to typical single family land divisions and site development and encourage residential infill and affordable housing. Ms. Holtey described different configurations for duplexes. She explained cottage housing developments as well. She said a cottage cluster would be a group of units of various sizes oriented around a common open space. She reviewed the development standards and said parking requirements would be based on the size of the units. The Committee discussed parking in different cities. They reviewed design and development standards and discussed cottage clusters. Ms. Holtey suggested a tour of a cottage housing development in Ashland to show what they might look like. The members agreed that would be beneficial. VII. MISCELLANEOUS Planning Update • Stephanie Holtey is now the Planning Director since Tom Humphrey has retired • There are not many new applications at this time • 185 Vilas Road is demolishing the existing structure and there may be a subdivision at that location ■ Current projects are the Car Wash & Oil Change, Les Schwab, Firestone, a commercial building and additional mobile classrooms at Jewett and Mae Richardson VIII. ADJOURNMENT Robin Stroh made a motion to adjourn. Kristy Painter.seconded the motion. All Page 5 of 25 CAC Minutes July 13„ 2021 Page 4 members Said "aye". The meeting adjourned at 7:55 p.m. The foregoing minutes of the July 13, 2021 Citizens Advisory Committee were approved by the Citizens Advisory Committee at its meeting of , 2021. Chair Page 6 of 25 Item VI -A: Bear Creek Greenway Fire Area Master Plan Discussion Page 7 of 25 CENTRAL POINT October 12, 2021 To: Citizens Advisory Committee From: Dave Jacob, Park Planner Re: Bear Creek Greenway Fire Area Master Plan Parks and Recreation Department Matt Samitore, Director Following the September 2020 wildfire that swept through the Bear Creek Greenway from just south of the Table Rock Road overpass to within several hundred feet of the Holiday Inn Express (Attachment 1), the City of Central Point has taken a proactive approach to managing the burned area. Along with regular vegetation maintenance to minimize the threat of future wildfires, the Police Department also began regular patrols to maintain public safety in the area. City staff also began to consider a long-term plan for the Greenway area contracting with Pardee Landscape Architects to develop a conceptual plan (Attachment 2). This conceptual plan provides for recreational amenities along with managed natural spaces with the goal of creating an area along the Greenway that is not only wildfire resistant but also safe for public use. Specific elements of the conceptual plan include dog parks, bicycle pump track, picnic area, and Frisbee golf. Creating and restoring natural areas will also be an important element of the project. Please note that this is not the final design but a concept to provide for public and agency input. At the CAC meeting, staff will provide an overview of the conceptual plan, discuss current ownership and project financing as well as other ongoing activities that will impact the planning area. This next step in this process will be to develop a more detailed master plan for the Greenway area which will provide the design and construction plans needed to fully develop the site. The goal is to have this plan completed within a year. This presentation is for information only. No action from the Citizens Advisory Committee is required at this time. The City of Central Point 1 140 South 3" Street, Central Point, OR 97502 1541.664.3321 Page 8 of 25 Attachment 1: Bear Creek Greenway Burn Area, September 2021 Page 9 of 25 Attachment 2: Bear Creek Greenway Conceptual Plan —J 1 2021 X34 M in I . , r / ;�� `\�� � � �@ , Page 10 of 25 ) . ) { OD (D in W, G) /� � 9D � � ` X34 M in I . , r / ;�� `\�� � � �@ , Page 10 of 25 Item VI -B: Zoning Code Update Project Discussion Page 11 of 25 Staff Report Agenda Item: VI -B CENTRAL POINT October 12, 2021 PLANNING Stephanie Holtey, Director Discussion of the Zoning Code Refresh project to reorganize and update Title 17, Zoning. Applicant: City of Central Point. Staff Source: Stephanie Holtey, Planning Director Background At the July 13, 2021 Citizen's Advisory Committee (CAC) meeting staff presented an overview of duplex and cottage housing types. The purpose of the discussion was to familiarize the committee members with new legislation relative to duplexes, and to introduce a larger need to update the City's Zoning Code. At the conclusion of the meeting staff provided CAC members with a Zoning Code Basics article (Attachment "A") to provide an over view of the fundamental components and issues associated with zoning regulations. The purpose of this discussion item is to kick-off the City's Zoning Code Refresh project and start moving forward with the first phase of changes. Zoning aims to minimize or avoid negative effects from development patterns that involve incompatible uses. This is achieved by dividing the city into zones or districts and regulating development patterns according to land use, form and design. A zoning ordinance involves two (2) primary components: a zoning map and zoning text. The map displays the zones and text includes all the rules and regulations. Typically the text of the zoning ordinance includes chapters that address six (6) functional areas as follows: 1. Title, Authority and Purpose 2. General Provisions 3. Zoning Districts and Regulations 4. Non -Conforming Uses/Structures 5. Impact Regulations 6. Administration and Enforcement The City's Zoning Ordinance is found in Title 17 of the Central Point Municipal Code (hitps://www.codepublishin,q.com/0R/Ceiit;-alPoint). It was adopted in 1981 and includes chapters that address each of the functional areas above. Based on preliminary review of the code, there are some outdated and conflicting provisions that need to be removed or clarified. Additionally you will note that the code structure is not organized by functional area and many items related to use and impact are located in Chapter 17.60, General Regulations. This makes it difficult for anyone but experienced staff to know what regulations apply when someone wants Page 12 of 25 to develop in the City. Finally there have been many changes to state laws and local conditions that warrant a full scale evaluation and update to Title 17. Attachment "C" presents a preliminary concept for the organizational hierarchy. This is likely to be adjusted as the project progresses but gives us a starting point. Highlighted sections in both Attachments "B" and "C" indicate the chapters to be addressed in the project's first round of changes. Discussion At the October 12, 2021 meeting, staff will provide an overview of the project including a review of the existing Title 17 framework (Attachment "B") and changes that will proposed for formal discussion and action at the January 2022 meeting (Attachment "C"). The purpose of this discussion is to receive input on the proposed organizational structure and to provide an overview of the chapters and content that will be the focus of the first round of code amendments. Attachments Attachment "A" — "Zoning Code Basics" Attachment "B" — Title 17, Zoning (Current) Attachment "C" — Title 17, Zoning (Proposed Concept) Page 13 of 25 Editor's Note: In the next few issues of the Planning Commissioners Journal we will be running several articles focusing on different aspects of zoning. As most new planning commissioners quickly learn, the local zoning code/ordinance — along with the municipal comprehensive plan — pro- vides the framework for most local land use decisions. In this issue, Planning Commissioners Journal columnists Mike Chandler and Greg Dale go over the basics of zoning. In our next issue, they will take a look at zon- ing and neighborhoods. As always, if you have a specific question about how your own community's zoning process operates, please consult with your planning director or legal counsel. THE ORIGINS OF ZONING IN AMERICA egulation of buildings in America is as old as the founding of the country. President George Washington on October 17, 1791, for example, issued an order that only brick could be used within portions of what is now Washington, D.C. By 1822 an Act was adopted providing that within the then defined cities of Georgetown and Washington "no frame house intended to be occupied as a blacksmith's shop, facto- ry, or livery stable, shall be erected within fifty feet of any stone or brick house" — not altogether different from the type of regulation found in a modern zoning code!' Early codes often, sensibly enough, focused on restricting use of combustible materials. But by the turn of the 19th century, local governments across the United States began to enact ordinances more broadly regulating where certain kinds of businesses could locate and the 1 Our thanks to Lindsley Williams for informing us about Washington, D.C.'s early building regulations, described in Volume 52 of the Records of the Colum- bia Historical Society (1989) FEATURE Zoning Basics by Michael Chandler & Gregory Dale maximum height of buildings. Examples include an 1885 ordinance regulating the location of laundries in Modesto, Califor- nia; ordinances regulating building heights in Washington, D.C. in 1899 and Boston in 1904; and a 1909 Los Angeles ordinance governing where industrial plants could be built. These early ordinances were enacted, in part, to address the social and eco- nomic challenges associated with immi- gration and the rise of the industrial age across much of America. The ordinances sprang from the police power provision embedded in the Constitution which allows government to exercise reason- able controls in order to protect the pub- lic health, safety, convenience, and welfare. With this foundation in place, New York City adopted the nation's first com- prehensive zoning ordinance in 1916. The ordinance classified various types of land uses, delineated zones (through a zoning map) and established height and bulk standards for buildings. Other cities followed New York's lead and subse- quently adopted zoning ordinances for the purpose of guiding and managing growth. 0 The Emergence of Zoning, p. 14 ZONING ENABLED In 1922, the U.S. Department of Commerce, under the leadership of then Secretary Herbert Hoover, published the ATTACHMENT "A" Model Standard State Zoning Enabling Act. The Model Act — which was designed for adoption by states across the country— outlined the role and func- tion of zoning, and set out uniform Stan- dards that localities could use to guide land development practices. The national movement to adopt zoning got a big boost four years later (1926) when the United States Supreme Court ruled in Euclid v. Ambler Realty that zoning did not violate the due process clause of the federal constitution. The ruling resulted in the widespread adoption of zoning statutes across the nation. By 1940, zoning had become (and continues to be) the most common means of regulating local land use in the United States. ZONING DEFINED Zoning is a legislative process through which the local governing body (under power delegated it by the state zoning enabling law) divides the municipality into districts or zones, and adopts regula- tions concerning the use of land and the placement, spacing, and size of buildings. The primary goal of zoning is to avoid or minimize disruptive land use patterns involving incompatible land uses. PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 continued on page 14 Page 14 of 25 The Emergence of Zoning by Laurence C. Gerckens, AICP American cities in the year 1900 were a hodgepodge of industrial, warehouse, commercial, and residential uses, frequent- ly closely intermingled without rhyme or reason other than the characteristics gen- erated by chance and individual advan- tage. It was not uncommon for a party to purchase a residential structure only to find it ringed by odoriferous uses that made occupancy of the structure muen- able. Characteristics of entire neighbor- hoods often changed as uses moved in rapid succession. The physical separation and isolation of dangerous, odoriferous, or unsightly practices, such as tar boiling, soap making, fat rendering, and dead carcass cre- mation, was viewed at that time as a reason- able govemmen- tal response to the unacceptable impositions of one otherwise legal activity upon another. Both the residences and these businesses had their right to exist, it was held, but not necessarily in close proximity to each other. Thus, the legal separation and isolation of land uses began, creating the foundations for many current zoning practices. The New York Zoning Code of 1916, America's first "comprehensive" zoning code, relied on a "pyramidal" approach to permitted uses. That is, in the residence zone — considered the "highest" zone clas- sification — nothing but residences were permitted. In the commercial zone, the next lower zone on the pyramid, commer- cial uses and residences were allowed. At the bottom of the pyramid were the industrial zones, where industrial and commercial and residential uses were all permitted. In effect, industrial zones were really unzoned for all uses. In the 1920's a number of municipali- ties expanded on New York's single "resi- dence" district by creating districts limited to development of single -family -detached homes only. The courts upheld these ordinances based on: (1) a public safety rationale (i.e., the risk of fire would be reduced because there would be fewer buildings, located farther apart, housing fewer families per acre); and (2) the premise that single -family -detached resi- dence districts would induce good citizen- ship through the encouragement of home ownership. The public safety rationale was consti- tutionally sound as it was founded on physical conditions capable of being proven to bear a direct relationship to public health and safety — preventing the extreme congestion commonly associated with the practices of apartment and tene- ment house construction of that era. However, the second premise, that sin- gle-family districts would foster good citi- zenship by encouraging home ownership, was based on a faulty presumption. It pre- sumed that single family -detached homes would be owner -occupied. But this was not a requirement of single -family -only zoning districts. Moreover, as time would prove, the courts would not look favor- ably on attempts by municipalities to specify conditions of occupancy (rental, ownership, lease, etc.) in their zoning codes. Even more significantly, the presump- tion that single -family -only districts would be solely r ' . ¢ occupied by home owners has not been home out. Indeed, in many communi- ties entire neigh- borhoods of new single-family- detached units have been built and marketed as rental units. Today, the condominium row house (or townhouse) often represents the prin- cipal home ownership option, particularly for young couples and single parents. Ironically, the same arguments made decades ago in favor of public laws pro- moting single -family -only districts to encourage home ownership could well be marshaled today in favor of promoting townhouse -density attached -unit zoning! Laurence Gerckens is national historian for the AICP. The above is excerpted from his articles, "American Zoning fr the Physical Isolation of Uses" (In PCJ #15), "Single -Family -Only Zones" (in PCJ #23), and `Ten Successes that Shaped the 20th Century American City" (in PCJ #38). Zoning Basics... continued from page 13 Since the establishment and modifi- cation of zoning ordinances is legislative in nature, zoning represents a democrat- ic method for setting the ground rules for how development can occur within the community. Zoning is constrained, however, by the Constitution's "takings" clause which requires compensation when private property is taken for a public use. (The impact of the "takings" clause is beyond the scope of this article; for a good overview, see "An Introduction to Tahings Law" in PCJ #18 and available for downloading on plannersweb.com]. LINKING ZONING WITH PLANNING Zoning depends on planning and planning depends on zoning. Neither can exist without the other. The com- prehensive plan can be thought of as a roadmap which captures in pictures and words what a community wishes for itself. Although the plan will talk about land use, it does not regulate land use. This is the role of the zoning ordinance. In short, the comprehensive plan pro- vides the public policy basis for drawing and applying the zoning districts which in turn control what happens on the land. The subdivision ordinance is anoth- er planning tool that is closely linked with zoning. A subdivision ordinance regulates the division of land into build- ing lots for the purpose of sale, develop- ment, or lease. The ordinance specifies procedures that are to be followed when land is divided and built upon. Stan- dards governing the platting of building lots and planned improvements, such as roads and utilities, are common to most subdivision ordinances. When used in conjunction with the zoning ordinance and the comprehensive plan, the subdi- vision ordinance assures that the land development process is accomplished in an appropriate and consistent manner. See "An Introduction to Subdivision Regu- lations," in PCJ #5 and 6. THE PURPOSES OF ZONING It is important to bear in mind that local zoning authority is derived from PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 Page 15 of 25 the state. Zoning enabling statutes set out — usually in quite general terms — what local governments can seek to accomplish through zoning. A typical state enabling law might include the fol- lowing purposes: 1. Provide for adequate light, air, con- venience of access, and safety from fire, flood, earthquakes, crime, and other dangers; 2. Reduce or prevent congestion in the public streets; 3. Facilitate the creation of a convenient, attractive, and harmonious community; 4. Facilitate the provision of adequate police and fire protection, transportation, water, sewerage, schools, parks, play- grounds, recreational facilities, and other public requirements; 5. Protect against the overcrowding of land and the undue density of population in relation to existing or available commu- nity facilities; 6. Encourage economic development activities that provide desirable employ- ment and enlarge the tax base; 7. Provide for the preservation of agricul- tural, forested lands, and other lands sig- nificant to maintaining the natural environment; 8. Promote the creation and preservation of affordable housing; 9. Protect approach slopes and other safe- ty areas of airports; and 10. Encourage the most appropriate use of land within the locality. How ZONING WORKS A zoning ordinance consists of two parts: a map (or series of maps) and text. The zoning map shows how the commu- nity is divided into different use districts or zones. Zoning districts common to most ordinances include residential, commercial, industrial, and agricultural. The zoning map must show precise boundaries for each district. Conse- quently, most zoning maps rely on street or property lines as district boundaries. The zoning text serves two important I., Avoiding i Spot Zoning by Robert C. Widnes; Esq. Most planning commissioners have heard the impassioned cry that a particu- lar rezoning decision will constitute an invalid "spot zoning." This allegation typically arises where the community is considering the rezoning of a single lot or small parcel of property held by a sin- gle owner and the rezoning will permit land uses not available to the adjacent property. Because spot zoning often focuses on the single parcel without considering the broader context, that is, the area and land uses surrounding the parcel, it is com- monly considered the antithesis of planned zoning. While rezoning decisions that only affect a single parcel or small amount of land are most often the subject of spot zoning claims (as opposed to rezonings of larger areas), a locality can lawfully rezone a single parcel if its action is shown to be consistent with the com- munity's land use policies. Courts commonly note that the underlying question is whether the zon- ing decision advances the health, safety, and welfare of the community. A zoning decision that merely provides for individ- ual benefit without a relationship to pub- lic benefit cannot be legally supported. Although courts throughout the nation differ in their specific approaches when reviewing spot zoning claims, the majority consider: 1. the size of the parcel subject to rezoning; functions. First, it explains the zoning rules that apply in each zoning district. These rules typically establish a list of land uses permitted in each district plus a series of specific standards governing lot size, building height, and required yard and setback provisions. Second, the text sets forth a series of procedures for administering and applying the zoning ordinance. In most cases, the text is divided according to "sections" (or "arti- cles") for ease of reference. Most zoning continued on page 16 2. zoning both prior to and after the local government's decision; 3. the existing zoning and use of the adja- cent properties; 4. the benefits and detriments to the landowner, neighboring property owners, and the community resulting from the rezoning; and 5. the relationship between the zoning change and the local governments stated land use policies and objectives. This last factor — the relationship of the rezoning decision to the community's land use policies and objectives — is per- haps the most important one. As a result, when a planning commission (or govern- ing body) initially considers a rezoning request it should determine whether the request is consistent with the comprehen- sive or master plan. Robert C. Widner is an attorney with the Denver, Colorado, law firm of Gorsuch Kirgis LLP. He also holds a master's degree in urban and regional planning. The above is excerpted from his article, "Understanding Spot Zoning," in PCJ #13. PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 Page 16 of 25 tooZoning's "Achilles Heel" by Susan G. Connelly, Esq. Nonconforming uses and structures have been with us ever since zoning first emerged in the 1920's. Since that time, they have represented the "Achilles heel" of planning and zoning. The root of the problem is that nonconformities reduce the effectiveness of what a community is trying to accomplish through its compre- hensive plan, as implemented by its local zoning regulations. The continued exis- tence of nonconforming uses, for example, undermines what a community is seeking to achieve when it establishes specific allowable uses for a zoning district. At the same time, communities — quite understandably — have been reluctant to call for the removal of ongoing businesses and existing structures, reflecting substan- tial financial investments, just because they fail to comply with current zoning require- ments, The "solution" has been to subject nonconforming uses and structures to a diverse assortment of restrictions, all intended to hasten the day when the partic- ular use or structure either "disappears" or comes into compliance with the existing zoning regulations. The variety of nonconforming situa- tions account for the difficulty in regulating them. Nonconforming uses in residential zoning districts can range from things such as tool sheds in small accessory buildings to bulk storage of gasoline or oil in large buildings suitable only for that specific use. Nonconforming uses can also involve uses in structures designed for conforming uses (such as a manufacturing operation occur- ring in an office building in a commercial zoning district) or uses in structures which may be adaptable to conforming uses (such as manufacturing in a factory building, in a multi -family residential district, which could be converted to apartments). obvi- ously, some of these uses are easier to elimi- nate than others. As mentioned, zoning ordinances usu- ally seek the eventual elimination of non- conforming uses and structures. This is primarily accomplished by: (1) limiting repair, restoration, additions, enlargements and alterations of the nonconforming struc- ture or of the structure housing the non- conforming use; and (2) restricting or pro- hibiting the expansion or change of the nonconforming use itself. Most ordinances specify that once a nonconforming use is discontinued, it may not be resumed. These "abandonment" pro- visions usually only apply when the discon- tinuance of the use is 'voluntary" — as opposed to when the use is discontinued during bankruptcy or foreclosure proce- dures. The zoning ordinance will also usu- ally specify a minimum time period before a use is considered to be voluntarily aban- doned. In some states, courts will also require proof of an intent to abandon the use. "Amortization" provisions — through which the local government requires that the nonconforming use or structure be eliminated within a specified number of years — have had mixed results when chal- lenged in court. While the topic of amortiz- ing nonconformities is a complex one, a basic rule of thumb is that amortization provisions are more likely to be upheld when they involve simpler uses or struc- tures whose value can be readily amortized over a few years. Courts will closely exam- ine the extent to which an amortization provision would cause financial hardship or loss to the property owner. Thus, a provi- sion affecting a nonconforming commercial or industrial business facility is much less likely to be upheld than one eliminating a nonconforming advertising sign or fence. Susan Connelly, AICP is Vice President of Com- munity Design for McStain Enterprises, Inc., a 35 year old "green" community developer and home builder based in Boulder, Colorado and is a member of the Boulder Urban Renewal Authority. Connelly practiced land use and real estate law in Illinois and Florida for 13 years. The above is excerpted from her article, "Non -Conforming Uses & Structures," in PCJ #2. Zoning Basics... continued from page 15 ordinances include the following: 1. Title, Authority and Purpose. This section identifies the specific state enabling provision which empowers the locality to adopt zoning. It also spells out, in a "statement of purposes," the community's reasons for adopting the ordinance. The statement of purposes links the rules and regulations listed in the ordinance to the community's values and goals. 2. General Provisions. Topics covered in this section usually include defini- tions of terms used in the ordinance, and a description of the geographic or jurisdictional reach of the zoning ordi- nance. Definitions are especially impor- tant because the general public, as well as the courts, must be able to attach spe- cific meaning to the words and concepts appearing in the ordinance. With respect to jurisdictional reach, zoning ordinances will typically apply to the territory contained within the politi- cal subdivision; meaning the city, coun- ty, town, township, or village. In some cases, however, a zoning ordinance may reach beyond a locality's political boundaries. Such "extraterritorial" zon- ing is permissible if it is authorized by the enabling statute. 3. Zoning Districts and Regulations. This section of the ordinance is arguably the most important since it lists and defines each zoning district — as we have noted, the concept of districts stands at the core of zoning. Most zoning ordi- nances will include — at a minimum — resfdential, com- mercial, and in- dustrial districts. Residential dis- tricts, in turn, are often bro- ken down further into zones for single-family and multi -family dwellings of varying density. Similar distinctions, based on inten- sity of use, are also often found in busi- ness and industrial districts (e.g., light industry versus heavy industry). PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 Page 17 of 25 Other common types of zoning dis- tricts are agricultural, conservation, and institutional. Many communities have also crafted a wide variety of "mixed use" districts, allowing blends of uses in some parts of the community. Many zoning ordinances include one or more special purpose zones address- ing flood hazard areas, historic proper- ties, and other specialized uses. These special zones are often applied as "over- lays" — that is, those geographic areas subject to overlay zones are also within an "underlying" zoning district. For example, a property within a residential zone might also be located within a flood hazard zone. This property would be subject to the regulations of both the underlying zone (in this case, residential) and the overlay zone (flood hazard). In addition to listing and defining zoning districts, this section of the zon- ing ordinance sets out rules for the use of land in each district. Most basic is the list of permitted versus special or condi- tional uses. If a use is deemed permitted (commonly referred to as a "by -right" or "matter -of -right" use), it need only meet the ordinance's dimensional require- ments (as described below) and any other "impact standards" (such as park- ing, landscaping, and signage standards; see point 5 below) to secure a zoning permit. Other uses may be allowed within a district provided they are granted a spe- cial or conditional use permit. The terms special exception, special use, and conditional use permit generally have the same meaning; what term you're familiar with depends on the state you live in. The zoning ordinance will set out the standards which must be met for granting such a permit. Q, Special Permits. Finally, this section of the zoning ordinance includes, for each zoning district, basic development require- ments. These primarily involve dimen- sional standards for setbacks and side yards, minimum lot sizes, and building heights. 4. Nonconforming Uses, Structures, and Parcels. When a zoning ordinance is adopted some existing uses, structures, and parcels may not comply with the regulations of the zoning district in which they are located. These uses, structures, or parcels are then classified as "nonconforming." While they are typically permitted to continue, their future expansion, reconstruction, or conversion is regulated by provisions set out in this section of the zoning ordi- nance. 10 Zoning's "Achilles Heel," p. 16. 5. Impact Regulations. Many zoning ordinances include a separate section (or sections) setting out a variety of "impact" regulations or standards. These might include, for example, park- ing standards, sign regulations, land- scape requirements, urban design criteria, historic preservation standards, and various environmental criteria (such as requirements for tree plantings in new developments). 6. Administration and Enforcement. This section of the zoning ordinance spells out the duties of those involved in administering the ordinance — the zon- ing administrator, the governing body, the planning commission, and the board of zoning appeals or board of adjust- ment. Procedures to be followed when amending the zoning ordinance, as well as standards for assessing penalties and fines for zoning violators, are also included in this section. WHO'S WHO IN ZONING In order to make sense out of the zoning process, it is important to under- stand the players and their respective continued on page 18 Special Permits by Neil Lindberg, Esq. Special permits are approvals given to uses that meet certain standards or conditions which are listed in the local zoning ordinance. The condi- tions are often designed to ensure that the use will not adversely affect nearby exist- ing uses. Special permits are commonly employed to protect residential neighbor- hoods against potentially disruptive uses — uses which might generate substantial amounts of noise, odor, or traffic, or which might in some other way be incom- patible with the neighborhood. For this reason, uses such as gas stations and convenience stores often require special permits. Local governments are also increasing- ly coming to require special permits for major development proposals. This allows the local government, typically through its zoning board, increased flexibility in examining the impacts of large-scale uses, and the ability to impose conditions to lessen adverse impacts. Projects such as shopping centers or office parks are par- ticularly likely to require special permits. Zoning ordinances must specify the standards by which the special permit application is to be reviewed. Some stan- dards are narrow and fairly objective. For example, the special permit use might be required to maintain a minimum of 35 percent open space. Standards that are too general are sus- ceptible to challenge in court on the ground that they allow for arbitrary gov- ernment action, violating individual due process rights. However, courts are becoming more liberal in reviewing spe- cial permit standards. There is much vari- ation, nevertheless, and standards upheld in one community might well be struck down in another. Neil A. Lindberg is an attorney and city planner. He is counsel to the Provo, Utah, Municipal Council and maintains a private practice focusing on planning, zoning, and land use law matters. The above is excerpted from his article, "Special Permits," in PCJ #3. PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 Page 18 of 25 Watch Out For... • by Greg Dale 1. When the legislative body is the final decision -maker on every- thing. Many elected officials believe that they should have the final say on every- thing. Their theory is that they were elect- ed and therefore the buck should stop with them. So, for example, many local governing bodies — in addition to acting on zoning ordinance changes — will hear appeals from decisions of the board of zoning appeals; act on conditional use permits and related decisions; and act on site plans. However, problems can arise. First, when governing bodies act as appeals boards, they often do not perform this function very well. Frequently testimony that was taken by the zoning board of appeals (or planning commission) is reopened, and the matter becomes politi- cized. Most governing bodies simply are not well suited to act as quasi-judicial decision -makers. Since legislators most often function in an environment where all forms and channels of communication are anticipated, they are also at greater risk of either initiating or being drawn into inappropriate ex-parte communications. Finally, when local governing bodies are involved in administering regulations, they tend to lose sight of the larger policy issues. 2. When the planning commission acts in a quasi-judicial role. Planning commission- ers should understand the difference between acting in an advisory capacity and in a quasi-judicial capacity. When the planning commission is making a recom- mendation to the legislative body on a zone change, for example, it is acting in an advisory capacity. However, in many com- munities the planning commission is also the final decision -maker on certain mat- ters, such as subdivision plat, site plan, and conditional use/special permit approvals. When acting in this quasi-judicial capacity, fact finding, evidence, and writ- ten findings become particularly impor- tant. In addition, certain ethical constraints — such as the avoidance of "ex-parte" contacts — come into play. "Legislative" v. "Quasi-judicial" Actions, p,19 3. When planning commissions get caught up in minutiae. Many planning commissions spend hours going through excruciating details on development pro- posals, dealing with items over which they have little discretion (at least if they follow the dictates of the zoning code). Particu- larly in communities with professional staff, there is no need for the planning commission to take on what is essentially a staff responsibility. A planning commis- sion works best when it allows staff to make technical determinations, while focusing its attention on those matters which require discretionary decision mak- ing. Of course, this assumes the com- munity has a good zoning code, with well -articulated standards, in place. 4. When elected officials try to influence the planning commission recommendations. It is all too common to find elected offi- cials attending planning commission meetings and trying to influence the com- mission's recommendations. This is per- plexing, since one of the principal reasons for planning commission consideration of zoning amendments is to provide the elected officials with their best advice. It is counterproductive for elected officials to try to influence the "independent" advice that the planning commission is supposed to provide them. 5. When zoning boards grant too many variances. The consideration of variances is one of the most difficult jobs of a zoning board of appeals. Variances are an impor- tant "safety valve" in zoning, but are also often abused. Variances are intended to apply only in unusual circumstances where a literal interpretation of the zoning code creates a hardship, and then only pursuant to standards set out in the code. The difficulty lies in how "hardship" is interpreted and how facts are considered relative to standards. A zoning board needs to clearly understand what must be proven before a variance can be granted. If the vast majority of variance requests are being granted, it is likely that either the zoning board is not requiring the level of proof required by the zoning regulations, or that the regulations need to be amended. Zoning Basics... continued from page 17 roles — and the types of decisions they are responsible for making. The zoning process is similar to the balance of power that we all learned about in Civics class. In zoning, different bodies have different responsibilities that serve as a system of "checks and bal- ances." For the system to work efficiently each role must be played well by the respective body responsible for that role; conversely, it is important for individual bodies to not exceed their designated role. There are four main types of deci- sion-making functions in the zoning process: legislative, advisory, administra- tive, and quasi-judicial. 1. Legislative The legislative function involves the adoption or amendment of the zoning regulations themselves. The local gov- erning body is comprised of the elected officials in your jurisdiction. This may consist of a city council, county board or commission, village council, township trustees, and so forth. Note that the zon- ing map is considered to be part of the zoning regulations, which means that a zoning map amendment or "zone change" is a legislative act. In the vast majority of states only the governing body can approve either text or map amendments. 2. Advisory Before adopting or amending the zoning text or map, the local zoning process will typically call for the plan- ning commission to provide advice on the wisdom of any such adoption or revision. The commission will ex- amine whether the zoning proposal is consistent with the goals and policies of the locality's adopted comprehensive plan. .0 Avoiding Spot Zoning, p. 15. Many planning commissions are also involved in drafting proposed zoning ordinances and amendments. In any zoning adoption or amend- ment process the local governing body is likely to hear from a variety of "special interests" ranging from local PLANNING COMMISSIONERS JOURNAL / NUMBER 42 / SPRING 2001 Page 19 of 25 homeowners and neighbors to builders and developers. These groups are a nat- ural and important part of the process; however, it is equally important to have the independent voice of a planning commission that is focused on the long range public interest of the community as a whole. 3. Administrative It is sometimes surprising for new planning commissioners to learn that the majority of decisions made in the zoning process are actually made at the administrative level by staff planners, zoning officers, or other municipal employees. Non -discretionary standards such as lot size, lot width, setbacks, building height, permitted uses, sign height and size, and parking lot standards, can be administered by staff without the need for review by planning commissions or legislative bodies. These decisions often take the form of zoning certificates and certificates of occupancy, and are fre- quently made as part of the building permit process. 4. Quasi-judicial No zoning code is perfect, nor can all potential circumstances be anticipated. For that reason, several "safety valves" are built into the zoning process. First, there are occasions when an interested party may simply disagree with the way in which the administrative staff has interpreted the zoning regulations. Sec- ond, there are instances where the strict application of zoning regulations creates an unfair situation to a property owner. Typically, as part of the zoning process, a board is designated to hear appeals and consider variance requests. This board is usually referred to as either the "board of zoning appeals," "board of adjustment," or some similar title. It generally acts in a "quasi-judicial" capacity because in most states and communities its decision is final (sub- ject only to appeal in the local court sys- tem). This means that zoning board decisions must be based on specific fac- tual evidence, and include written find- ings of fact to support the decision. Planning commissions in many states sometimes also act in a "quasi- judicial" capacity. 0 For more on this, see point 2 in the "Watch Out For" sidebar p, 18. SUMMING UP: Treatises have been written on zon- ing. In fact, your planning department or municipal attorney's office may well have one or more of them. Given the constraints of time and space, we have necessarily focused on some of the more basic aspects of zoning (and despite state to state differences, zoning is remarkably similar nationwide). By at least having an understanding of the basics of zoning — and of who's who in the zoning universe — you should have a better feel for your job as a planning commissioner or zoning board member. In the next issue of the Planning Com- missioners Journal, we'll take a closer look at a constellation of issues related to "zoning and neighborhoods." C_ Gregory Dale is a Principal with the plan- ning and zoning firm of McBride Dale Clarion in Cincinnati, Ohio. Dale ry manages planning pro- jects and conducts train- ing for planning officials throughout the country. He is also a former President of the Ohio Chapter of the American planning Association. Michael Chandler is Professor and Community Planning Extension Spe- cialist at Virginia Tech in Blacksburg, Virginia. Chandler also conducts planning commissioner training programs across the country, and is a fre- quent speaker at workshops. His column appears in each issue of the Planning Commissioners Journal. Editor's Note: Legislative V. Quasi -Judicial Actions The distinction between the "legisla- tive" and "quasi-judicial" role of a plan- ning commission is one many new planning commissioners are not familiar with, it can be an important distinction, however, because when a commission is acting in a "quasi-judicial" capacity, it typi- cally must follow a range of procedural and ethical standards designed to ensure that property rights are respected. This is mandated by the Constitution's due process clause. Attorney Gary Powell provided a con- cise explanation of the two different roles in Issue #2 of the PCJ: "A planning commissioner takes a quasi-judicial' role when engaged in deter- mining the rights, duties, privileges, or benefits that relate to a specific property or property owner. This happens, for exam- ple, when a planning commissioner is called on to review a conditional use request for a specific parcel, or a subdivi- sion plat. In contrast, the other role plan- ning commissioners often assume involves dealing with 'legislative' type activities. This role is taken when a planning com- missioner is engaged in recommending standards that have a general and uniform operation, and which are ultimately decid- ed by the local legislative body. For exam- ple, when the planning commission is working on a proposed zoning ordinance that will go to the legislative body for final approval, the planning commissioner is engaging in what is considered to be leg- islative -type [or advisory] activity." A more thorough discussion of proce- dural safeguards (such as adequate notice, the opportunity to be heard and present evidence, and written decisions supported by reasons and findings of fact) needed when a planning commission is acting in a quasi-judicial capacity can be found in Dwight Merriam and Robert Sitkowski's article, "Procedural Due Process in Prac- tice," in PCJ #33. For a review of the vari- ous ethical issues facing planning commissions in their decision snaking, see Greg Dale's collected ethics columns in "Taking A Closer Look: Ethics" available from the Planning Commissioners Journal. 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