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2022-09-26 22-331 ORDINANCE 22-331 09/26/2022 CITY COUNCIL ACTION Council Meeting Date: September 26, 2022 Item No: 22-331 Responsible Dept: Planning Action Requested: Ordinance Map/Lot: n/a Title, Ordinance Amending Chapter 165, Land Development Code, by Clarifying the Protections, Allowances and Restrictions for Non-Conforming Uses, Structures and Lots. Summary This Ordinance will amend Chapter 165, Land Development Code, by separating out the different types of non- conformities and providing clear language on their expansions. 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 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 Meeting Date: October 4, 2022 Action: For: Against: Staff Comments & Approvals Finance City Manager City Solicitor Director Introduced for: First Reading and Referral 22-331 09/26/2022 CITY COUNCIL ORDINANCE Date: September 26, 2022 Assigned to Councilor: Sprague ORDINANCE, Amending Chapter 165, Land Development Code, by 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 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. 22-331 09/26/2022 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 or Structure meets all other requirements of that District to the greatest extent possible. All such expansions of a nonconforming use are subject to review and approval by the Planning Board under Article to ensure the expansion of the non-conforming use does not increase any adverse impact on adjacent properties. This allowance does not include the addition on residential dwelling units in a non-conforming residential building. 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 Board to find that the new non-conforming use does not increase any adverse impact on adjacent properties. C. If any nonconforming 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. D. Notwithstanding the above requirement, if a structure housing a non-conforming use is accidentally destroyed by fire or natural catastrophe, 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, or the 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 accessory dwelling unit only where allowed by district. F. For purposes of determining nonconformities, marijuana stores as defined in § 165-13, including medical marijuana caregiver stores, medical marijuana dispensaries, retail marijuana stores, or any 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 nonconforming. B. A nonconforming Structure containing non-residential uses may be enlarged, subject to review by the Planning Board, 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. C. If a nonconforming non-residential Structure is accidentally destroyed by fire or natural catastrophe, the Structure may be rebuilt on the existing footprint, or enlarged subject to the provisions listed above in 22-331 09/26/2022 Section 165-17.B. Reconstruction with any enlargements must commence within two years of the destruction, 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. D. Lots with non-conforming residential structures may house accessory dwelling units if, in the opinion of the Code Enforcement Officer, the Planning Officer and the City Engineer, the requirements in 165-17.B are met. No other additional dwelling units shall be added to a non-conforming structure. 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 this Code or any subsequent amendment thereto, and which, as a result of the enactment of this 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, and which does not adjoin another parcel in common ownership, may be built upon without the need for a variance, subject to the following requirements: A. 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, the Planning Officer and the City Engineer. 165-19 reserved 165-20 reserved 165-21 reserved Memorandum To: Honorable Bangor City Council Deb Laurie, City Manager From: Anne M Krieg AICP, Planning Officer Date: October 4, 2022 CC: Courtney O’Donnell, Assistant City Manager Tanya Emery, Director of Community and Economic Development David Szewczyk, City Solicitor Re: Planning Board Recommendation October 4, 2022 Amending Chapter 165, Land Development Code, to provide greater flexibility to non-conforming situations, which are structures, lots, or uses that legally existed prior to when the current zoning ordinances were passed but which, due to the nature of the new ordinances, now do not comply with the current zoning. Please accept this memorandum as the recommendation from the Planning Board for the noted item. The Planning Board considered this item in a posted public hearing on October 4, 2022. The meeting was conducted in the Council Chambers at City Hall and on Zoom. Members in attendance in the Chambers were the Chair, Ken Huhn, and Members Don Meagher, Ted Brush, Reese Perkins, Mike Bazinet, and John Kenney (voting.) This was a staff-led Code change request. Planning Officer Krieg presented the proposed changes. From the staff memo: A. This is a staff-generated change to the non-conforming section of the Land Development Code. The work has been a staff project to clean up the language for a while. B. The language follows typical planning practice for non-conforming situations: 1) Define the difference between non-conforming lots, structures and uses 2) Allow the non-conforming situations to continue and allow for maintenance and improvements 3) Allow some expansions of non-conformities by a review of the Planning Board to ensure there are no adverse effects 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 Utility structures C. Allowing expansion and maintenance of non-conforming situations discourage 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. D. 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. There were no questions from the public. The Board had no questions. Member Brush made a motion to recommend to the City Council that the noted text amendment ought to pass. Member Meagher seconded the motion. The motion passed 6:0. amk Page 2 | 2 IN CITY COUNCIL SEPTEMBER 26, 2022 COrd 22-331 First Reading and Referral to Planning Board Meeting of October 4, 2022 CITY CLERK IN CITY COUNCIL OCTOBER 12, 2022 COrd 22-331 Motion made and seconded for Passage Vote: 6 – 0 Councilors Voting Yes: Okafor, Schaefer, Sprague, Tremble, Yacoubagha, Fournier Councilors Voting No: None Passed CITY CLERK