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Home My WebLink About2023-05-08 23-141 ORDINANCE23-141 05/08/2023 CITY COUNCIL ACTION Council Meeting Date: May 8, 2023 Item No: 23-141 Responsible Dept: Planning Action Requested: Ordinance Map/Lot: n/a Title, Ordinance Amending Chapter 165, Land Development Code, by further Clarifying the Protections, Allowances and Restrictions for Non -Conforming Uses, Structures and Lots Summary This Ordinance will amend Chapter 165, Land Development Code, by providing further clarification to the ordinance passed in October 2022 that separated out the different types of non -conforming uses and clarified language on expansions. These new changes provide further differentiation for residential versus commercial non -conformities, differentiates the types of review for different non -conforming situations, and makes provision for non -conforming off-street parking. Nonconforming in zoning means that a lot, a use, and/or a structure once conformed to zoning (or predated zoning) and then, once the zoning changed, became non -conforming. This technical language change is in keeping with typical planning & zoning practice. It is common to have non -conforming situations when zoning changes occur and the overall intent is to seek conformity. There are, however, typically instances where there is little or no impact to allowing non -conformities to remain in perpetuity, and even to expand. Blight in cities often occurs in part due to the restrictions on non -conforming situations, hindering the ability to maintain the property. Providing the Planning Board or relevant City staff the power to review these expansions allows for a case -by -case analysis of what works best for that property. This is good practice because it encourages property owners to make improvements to their property. Committee Action Committee: Planning Board Action: Staff Comments & Approvals City Manager Director Meeting Date: May 16, 2023 For: iv"_ City Solicitor Introduced for: First Reading and Referral Against: Finance Director 23-142 05/08/2023 CITY COUNCIL ORDINANCE Date: May 8, 2023 Assigned to Councilor: Yacoubagha ORDINANCE, Amending Chapter 165, Land Development Code, by further clarifying the protections, allowances and restrictions for non -conforming uses, structures and lots. WHEREAS, at present, there are non -conforming situations in Bangor whereby the property conformed to zoning and no longer conforms due to a zoning change, WHEREAS, there is interest in supporting property owners in making improvements to properties to prevent blighted conditions; WHEREAS, there is a need to clarify the existing language in the Land Development Code in the area of non - conformities; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BANGOR AS FOLLOWS, THAT Chapter 165 of the Code of the City of Bangor is amended as follows: Part 2 General Requirements Article III Nonconformities (delete and rep/ace as shown below) Section 165-14 Purpose It is the intent of this section to provide conformity with this Code, except that nonconforming conditions that legally existed before the effective date of this Code, or any amendment thereto, are allowed to continue, subject to the requirements set forth in this Section. Except as otherwise provided in this Code, a nonconforming condition shall not be permitted to become more nonconforming. 165-15 General Requirements A. It is the intent of this Code to provide protections for non -conformities to prevent decay and dilapidation of buildings. The right to make routine and necessary structural and non-structural repairs on a nonconforming building remains. B. It is also the intent of this Code that all nonconformities shall be converted to conformity when required by this Code. C. Any nonconformity not expressly allowed by this Code as a legal nonconformity is hereby deemed illegal and shall cease or be corrected immediately. D. The burden of establishing that any nonconformity is a legal nonconformity shall, in all cases, be upon the owner of such nonconformity and not upon the City of Bangor. E. Any legally existing nonconformity may be transferred, and the new owner may, subject to the requirements of this Article, continue such legal nonconformity; provided, however, that nothing contained herein shall be construed to permit any person or entity to occupy or use any lot or Structure or to continue any use in violation of any applicable federal or state law, Code, or regulation. 23-142 05/08/2023 F. Once converted to conformity, no lot, Structure, or use shall be permitted to revert to nonconformity. 165-16 Nonconforming Uses The use of any land or Structure, or any portion thereof, which is made nonconforming as a result of the enactment of this Code, or any subsequent amendment thereto, may be continued, but only in strict compliance with the following requirements: A. A nonconforming use of land or Structure may continue to exist and may expand in size within the lot boundaries or building, provided the expanded use meets all other requirements of that District to the greatest extent possible. All such expansions of a nonconforming use are subject to the following: 1. For commercial non -conforming uses, review and approval by the Planning Board under Article XVI to ensure the expansion of the non -conforming use does not increase any adverse impact on adjacent properties. 2. For non-commercial non -conforming uses, review and approval by the Code Enforcement Officer to ensure all other requirements of the respective district are met. This allowance for expansion does not include the addition en of residential dwelling units. B. A nonconforming use of land or structure may transfer to another non -conforming use, provided that the new use meets all other requirements of the district to the greatest extent possible. All such transfers of a non -conforming use are subject to review and approval by the Planning Be Code Enforcement Officer, the Planning Officer, and the City Engineer�te fond who must find, in order to approve the transfer, that the new non -conforming use does not increase any adverse impact on adjacent properties. C. If any nonconforming non-residential use ceases or is discontinued for any reason for a period of 24 or more consecutive months, any subsequent use shall conform to the requirements of this Code in all respects. If any non -conforming residential use is discontinued (including when a residential structure is not occupied) for a period of seven years or more, the use may not be restored and its right to continue shall terminate. (For example, if one unit in a four -unit dwelling ceased to be occupied for a period of seven years or more and the zoning district only allowed for three units, the building would have to revert to a three -unit building instead of a four -unit.) D. Notwithstanding the above requirement, if a structure housing a non -conforming use is demolished, the Structure may be rebuilt on the existing footprint, or enlarged subject to the provisions listed above in Section 165-16.A. Reconstruction must commence within two years of the destruction for non- residential uses, and seven years for residential uses, orthe Structure must conform to all regulations, including use, of the applicable District. E. Notwithstanding the above requirements, a nonconforming residential use may be modified, enlarged, and extended in all Districts. Such changes include the placement of accessory dwelling units. F. For purposes of determining nonconformities, marijuana stores as defined in § 165-13, including medical marijuana caregiver stores, medical marijuana dispensaries, retail marijuana stores, orany combination thereof, are considered the same use. 165-17 Nonconforming Structures Any Structure which is made nonconforming as to requirements for yards, dwelling units per building, lot coverage, or height in the district in which it is located as a result of the enactment of this Code, or any subsequent amendment thereto, may be continued, but only in strict compliance with the following requirements: A. A nonconforming Structure may be maintained, repaired, reconstructed, and improved within the footprint of the Structure at the time the Structure became non -conforming. B. A nonconforming Structure containing a use listed in �165-111.A eentaining nen Fesidential uses may be enlarged, subject to review bythe Planning Board, only if it satisfies all of the provisions listed 23-142 05/08/2023 below: (1) The expansion satisfies all other applicable dimensional requirements of the District in which the Structure is located. (2) The expansion results in no new nonconformities. (3) The expansion does not increase the non -conforming situation. (4) The expansion does not cause or worsen safety problems, such as, but not limited to,reduction of sight distances from driveways or intersections and does not increase any adverse impact on adjacent properties. C. All other nonconforming Structures eentaining nen Fesidential uses may be enlarged, subject to review the Panning Beam under �165-116, only if it satisfies all of the provisions listed below: (1) The expansion satisfies all other applicable dimensional requirements of the District in which the Structure is located. (2) The expansion results in no new nonconformities. (3) The expansion does not increase the non -conforming situation. (4) The expansion does not cause or worsen safety problems, such as, but not limited to,reduction of sight distances from driveways or intersections and does not increase any adverse impact on adjacent properties. D. If a nonconforming, non-residential Structure is demolished, the Structure may be rebuilt on the existing footprint, or enlarged subject to the provisions listed above in Section 165-17.A. Reconstruction with any enlargements must commence within two years of the demolition, or the Structure must conform to all regulations of the applicable District. Residential structures may be rebuilt and expanded otherwise within seven (7) years of such damage by review of the Code Enforcement Officer, or the structure must conform to all regulations of the applicable district. E. Lots containina non-conformina residential structures that have been demolished, abandoned or cease to be occupied for a period of seven years or more shall conform to the requirements of this Code in all respects. F. Lots with non -conforming residential structures may house accessory dwelling units if, in the opinion of the Code Enforcement Officer, the PlaRRiRg 9ffieeF and the Gity F=RgiReeF, the requirements in 165-17.13 are met. Ne etheF addotmeRal dwelliRg HRits shall be added te a ReR eeRfeFngmRg stFHetHFe. 165-18 Nonconforming Lots A single parcel of land, the legal description or dimensions of which are recorded in a deed, plan, or map on file at the Penobscot County Registry of Deeds, which lawfully existed immediately prior to the enactment of th+q pertinent Code or any subsequent amendment thereto, and which, as a result of the enactment of th4s pertinent Code or any amendment thereto, does not meet the lot area, lot width, impervious surface ratio, floor area ratio, dwelling units per acre, open space, or buffer requirements in the district in which it is located, may be built upon without the need for a variance, subject to the following requirements: A. Except as allowed above in �165-16 and �165-17 for reconstruction, such building or construction shall, in all other respects, comply with the provisions of this chapter. B. No construction shall be commenced until the owner demonstrates to the satisfaction of the Code Enforcement Officer that there is reasonable access to the site for emergency vehicles. C. Non -conforming lots may house accessory dwelling units if there is a principal single-family dwelling on the property, and, if, the requirements above are met as well as no adverse impacts on adjoining properties in the opinion of the Code Enforcement Officer. 165-19 Parkinu Lots and structures with off-street parking that is non -conforming may continue to be maintained, repaired reconstructed, improved, and expanded subject to review by the Code Enforcement Officer. If uses are proposed to be changed, the Code Enforcement Officer may allow a continuation of non -conforming protections if the parking requirement for the new use is equal to or less than the parking requirement for the existing use. 23-142 05/08/2023 165-20 reserved 165-21 reserved 165-22 reserved ffi W M e �'1 f� ` I �� .�.�� "" �� ./ � �1. F 1.�.� //; .q w '' I�EV'�� L��1"�T � M� .� CIT� �F BAI�T+G+C�R. PLANV�IC�ICr QIWI51ClN Memorandum To: Honorable Bangor City Council Deb Laurie, City Manager From: Anja Collette, Planning Analyst Date: May 17, 2023 CC: Courtney O'Donnell, Assistant City Manager David Szewczyk, City Solicitor Anne M Krieg AICP, Director of Community & Economic Development Re: Planning Board Recommendation May 16, 2023 Amending Chapter 165, Land Development Code, to provide greater flexibility to non-conforming situations Please accept this memorandum as the recommendation from the Planning Board for the noted item. The Planning Board considered this item in a posted and noticed public hearing on May 16, 2023. The meeting was conducted in the Council Chambers at City Hall and on Zoom. Members in attendance in the Chambers were the Chair, Reese Perkins, Vice Chair Ted Brush, and Members Ken Huhn, Don Meagher, Trish Hayes, Mike Bazinet, and Jonathan Boucher, as well as Alternate Member Joshua Saucier. Planning Analyst Collette described the intent of the amendment and the major changes, which were to differentiate the types of review for commercial versus residential non-conformities, provide more flexible allowances for additions to non-conforming structures, provide allowances for non-conforming off-street parking, and to clarify the allowable timeframes for non- conformities if the structure or use is abandoned or discontinued. From the staff inemo: A. This proposed staff-generated change provides further clarification to the non-conforming ordinance passed in October of 2022, which separated out the different types of non-conforming uses and clarified language on expansions. These new changes provide further differentiation for residential versus commercial non-conformities, differentiates the types of review required for different non-conforming situations, provides clarity on situations where a use may be discontinued or a structure abandoned, and makes provision for non-conforming off-street parking. 73 HARLOW STREET,BANGOR,ME 04401 TELEPHONE: (207)992-4280 FAX: (207) 945-4447 WWW.BANGORMAINE.GOV CITY OF BANGOR PLANNING DIVISION PLANNING BOARD RECOMMENDATION TO CITY COUNCIL Non-conformities B. Allowing expansion and maintenance of non-conforming situations discourages blight as it allows property owners to make improvements to their properties under certain conditions. The overall purpose of non-conforming protections is to protect properties that previously conformed to zoning but no longer conform. C. Restricting the level of expansion and replacement in non-conforming situations also serves the goal of non-conformity to ultimately bring non-conformities into conformity. This code seeks to balance the allowance and the restrictions more clearly. Member Meagher asked why non-conforming commercial uses are only allowed 2 years of discontinuance versus residential uses that are allowed 7 years. Krieg stated that the 2 years is the typical timeframe, but that it's a policy question for the Planning Board; residential uses were given 7 years because of the amount of time it can take to redevelop abandoned houses. Krieg also noted that typically commercial uses are non-conforming when they're located in residential areas and therefore the community may not want those uses there anymore. Meagher expressed concerns about whether the timeframe provided allows for enough time to rebuild after natural disasters. Krieg stated that if the Council declared a state of emergency, there are things that can be done to restart the clock on rebuilding. Member Huhn made a motion to recommend to the City Council that the text change ought to pass. Member Meagher seconded the motion. The motion passed 7:0. Anja Collette Page 2 � 2 IN CITY COUNCIL MAY 8, 2023 COrd 23-141 First Reading and Referral to Planning Board Meeting on May 16, 2023 ��:,w�,��° '" .�� °,„�,��"��,°��*°.�� CITY CLERK IN CITY COUNCIL MAY 22, 2023 COrd 23-141 Motion made and seconded for Passage Vote: 9 —0 Councilors Voting Yes: Davitt, Hawes, Leonard, Pelletier, Schaefer, Sprague, Tremble, Yacoubagha, Fournier Councilors Voting No: None Passed ��.�` � M,�� w�� s� CITY CLERK