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HomeMy WebLinkAboutOrdinance 5453 ORDINANCE NO. 5453 AN ORDINANCE AMENDING THE UNIFIED DEVELOPMENT CODE OF THE CITY OF FAYETTEVILLE RELATED TO NONCONFORMING USES AND STRUCTURES AND NON RESIDENTIAL USES IN R DISTRICTS. WHEREAS, the City of Fayetteville encourages infill, historic preservation, adaptive reuse of buildings and revitalization; and WHEREAS,the regulations of the City of Fayetteville should encourage the survival and creative reuse of nonconforming structures,but existing ordinances currently discourage their survival and reuse; and WHEREAS,the regulations of the City of Fayetteville should permit development of single- family homes on existing lots of record to encourage reinvestment in neighborhoods and appropriate infill development. NOW,THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,ARKANSAS: Section 1.That the City Council of the City of Fayetteville,Arkansas hereby amends the Unified Development Code Chapter 151: Definitions by replacing the definition for Nonconforming use with the following term: Nonconforming structures, uses, and lots. A structure or building, use or activity, or lot which was lawful prior to the adoption, revision, or amendment of the zoning ordinance but that fails by reason of such adoption, revision or amendment to conform to the present requirements of the zoning district. Section 2.That the City Council of the City of Fayetteville,Arkansas hereby repeals §164.12 Nonconforming Uses and Structures and §164.13 Non Residential Uses in R Districts and enacts a replacement§164.12 and §164.13, shown as Exhibit"A"attached hereto and made a part hereof. TR PASSED and APPROVED this 18 `day of October,2011. 6'`° �°��°SG m a APPROVED: ATTEST: ;FAYETTEVI LLE GG• ° 0y9h -ANSA'JQ 6 'off®Bm® ®o 0�9a �V'GTOT4 Gme��a By: C_ By: QzY1 � �, ��uaa9a�eee�' IONELD JO AN, ayor SONDRA E. SMITH, City Clerk/Treasurer Exhibit "A" Page 1 of 3 CHAPTER 164: SUPPLEMENTARY ZONING REGULATIONS 164.12 Nonconforming Structures, Uses requirements of the underlying zoning And Lots district, along with all other applicable zoning It is the intent of this section to regulate and development ordinances. nonconforming structures, uses or lots that are (7) For nonconforming structures located in created when zoning designations or regulations are zoning districts utilizing build-to zones and created or changed such than an existing lawfully requirements for a minimum buildable street established structure, use, or lot no longer conforms frontage, all new construction that increases to the regulations of the Unified Development Code. It the existing building(s)footprint or volume of is also the intent of this section to permit habitable space by 50% or more shall nonconformities to continue as they exist presently comply with the standards of the underlying and to guide future uses and development to be zoning district. Building additions/expansions consistent with the City's planning policy and that increase the existing building(s)footprint regulations. or volume of habitable space on a property (A) Nonconforming structures. by less than 50% may be located outside of the build-to zone, so long as they are (1) Nonconforming structures are permitted to compliant with all other applicable zoning exist for continued and creative reuse to and development ordinances. contribute to the surrounding character, diversity, and services in the neighborhood (8) Should a nonconforming structure be moved until such structures are removed. for any reason for any distance whatever, it shall thereafter conform to the regulations for (2) Repairs to nonconforming structures or the district in which it is located after it is portions thereof are permitted, so long as the moved. nonconforming portion of the structure is not (g) A structure or portion thereof within any enlarged in volume, area or footprint. zoning district may be altered to decrease its (3) Reconstruction of nonconforming structures nonconformity. or portions thereof amounting to less than (10)Owners of nonconforming structures are 50%of the existing square feet are permitted so long as the nonconforming portion of the encouraged to keep such structures in good structure is not enlarged in volume, area or condition by regular maintenance and footprint. prompt repairs when necessary. If the City's Building Official notifies the owner of any (4) Voluntary removal, damage or destruction of unsafe or unlawful condition of the building, a nonconforming structure or portion thereof the owner must repair such unsafe or amounting to 50% or more of the existing unlawful condition promptly. The Building square feet shall require either complete Official may impose a reasonable time limit removal of the structure or its reconstruction for the repairs to be complete. Failure of the in conformance with existing regulations. owner to promptly and satisfactorily complete the necessary repairs may result in (5) Involuntary damage to or destruction of a the City Council ordering a raze and removal nonconforming structure (from fire, winds or of the structure. other calamity) shall permit the owner to (11)A nonconforming structure may be brought rebuild, reconstruct or restore the structure into conformity by way of an approved on the same footprint of the original structure variance from the Board of Adjustment, a plus any addition or expansion that is rezoning action, or by altering the structure allowed by the underlying zoning district. Such reconstruction is permitted as long as it to comply with the standards the begins within 18 months of the loss and underlying zoning district. A structure constructed unlawfully shall not be complies with all other applicable zoning, development and building codes. considered a nonconforming structure for the purposes of this chapter and is a prohibited (6) For nonconforming structures located in a structure unless it is brought into compliance zoning district utilizing conventional building as provided herein. setbacks, building additions/expansions are (B) Nonconforming uses. Nonconforming uses are permitted so long as the addition is in declared by the underlying zoning district to be compliance with all current setbacks, incompatible and are regulated to further restrict building area and building height actions that would make the uses more permanent in their location or expand their (e) Superseded by permitted use. Any nonconformity. land, structure, or structure and land in combination, in or on which a (1) Nonconforming uses of land, structures or of nonconforming use is superseded by a structures and land in combination. Where a permitted use, shall thereafter conform permitted or otherwise lawful use of land or to the regulations for the district, and the of structure and land in combination exists nonconforming use may not thereafter which would not be permitted by subsequent be resumed. regulations imposed by the Unified Development Code, the use may be (f) Abandonment of use. When a continued as long as it remains otherwise nonconforming use of land, a structure, lawful, subject to the following provisions. or structure and land in combination is discontinued or abandoned for six (a) Enlargement. No use of land or an consecutive months, (except where existing structure devoted to a use not government action impedes access to permitted in the district in which it is the premises), the land, structure, or located shall be enlarged, extended, structure and land in combination, shall constructed, reconstructed, moved or not thereafter be used except in structurally altered except in changing conformity with the regulations of the the use of the land or structure to a use district in which it is located. permitted in the district in which it is located or as required by other (g) Destruction. Removal or destruction of a ordinances. structure with a nonconforming use shall eliminate the nonconforming status of (b) Extending use. Any nonconforming use the land. Destruction for the purpose of may be extended throughout any parts this subsection is defined as damage to of the building which were manifestly an extent of more than 50% of the arranged or designed for such use, but existing gross square feet of the no such use shall be extended to structure. occupy any land outside such buildings. (2) A nonconforming use may be brought into (c) Change of use. Any nonconforming use conformity through a rezoning action by the of land, structure, or structure and land City Council or by Conditional Use Permit by in combination may as a conditional use the Planning Commission, as applicable. A be changed to another nonconforming use established unlawfully shall not be use provided that the Planning considered a nonconforming use for the Commission, either by general rule or by purposes of this chapter and is a prohibited making finding in the specific case, finds use unless it is brought into compliance as that the proposed use is equally provided herein. appropriate or more appropriate to the district than the existing nonconforming (C) Nonconforming Lots. Lots that do not fully meet use. In permitting such change the the requirements of the Unified Development Planning Commission may require Code to be considered a conforming lot for appropriate conditions and safeguards development, and thus are considered in accord with the provisions of the nonconforming lots, may be utilized for Unified Development Code. development in accordance with the following provisions: (d) Conditional use provisions not nonconforming uses. Any use which is (1) A proposed structure must meet all permitted as a conditional use in a applicable building setbacks, height and lot district under the terms of this chapter coverage requirements and other applicable and has been approved by the Planning zoning and development codes, with the Commission (other than a change specific exception of the reason for which the through Planning Commission action lot is nonconforming. from a nonconforming use to another use not generally permitted in the (2) Such lot shall have frontage onto a public district) shall not be deemed a street, and water and sewer shall be nonconforming use in such district, but provided to the lot at the time of shall be without further action development. considered a conforming use. (3) Such lot shall have at least 50% of the required lot width and area of the underlying zoning district. (4) A nonconforming lot that does not meet the provisions above may be brought into conformity by way of an approved variance from the Board of Adjustment, a rezoning action, or by combining a lot(s) in order to meet the standards of the underlying zoning district. A lot that was established unlawfully shall not be considered a legal lot of record for the purposes of this chapter and no building or development permit may be granted until the lot is legally established as provided herein. 164.13 Non Residential Uses In RSF Districts The following requirements apply to specific nonresidential facilities where permitted in or abutting an RSF District. The Planning Commission may reduce these requirements after receiving and reviewing a development plan under the provisions of §166. For the uses listed, the minimum separation shall be measured from the actual nonresidential use or structure to the closest single-family residential structure. Type of Structures or Element of the Minimum Facility Separation ft. Outdoorspectator facilities 50 ft. Outdoor sports area without spectator 100 ft. facilities Tool orequipment stora a 50 ft. Air conditioning tower or dispenser unit 1 50 ft. (Code 1965,App.A.,Art.7(14);Ord.No. 1747,6-29-70; Code 1991,§160.088;Ord.No.4100,§2(Ex.A),6-16-98; Ord.5296,12-15-09) City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 10/18/2011 City Council Meeting Date Agenda Items Only Jesse Fulcher Sustainability and Strategic Planning Submitted By Department Action Required: ADM 11-3934: (UDC CHAPTERS 164.12 AND 164.13): Submitted by CITY PLANNING STAFF. The proposal is to amend Chapters 164.12 Nonconforming Uses and Structures and 164.13 Non Residential Uses in R Districts. Cost of this request Category/Project Budget Program Category/Project Name Account Number Funds Used to Date Program/Project Category Name Project Number Remaining Balance Fund Name Budgeted Item Budget Adjustment Attached Previous Ordinance or Resolution# Department Di ctor Date Original Contract Date: �- 3,3'2)tOriginal Contract Number: City Attorney Date Finance and Internal Services Director Date Received in City 09-30-1 1 PO 1 :4 5 R C V D Clerk's Office Chief o Staff Date ENT EDj Received in 3u/ Mayor's Office Mayr to Comments: Revised January 15,2009 ly, THE CITY OF FAYETTEVILLE,ARKANSAS DEPARTMENT CORRESPONDENCE ARKANSAS CITY COUNCIL AGENDA MEMO To: Mayor Jordan, City Council Thru: Jeremy Pate, Development Services Director From: Jesse Fulcher, Current Planner Date: September 30, 2011 Subject: ADM 11-3934 UDC 164.12 Nonconforming uses and structures & 164.13 Non Residential uses in R Districts RECOMMENDATION Staff and the Planning Commission recommends approval of an ordinance amending Chapters 164.12 Nonconforming Uses and Structures and 164.13 Non Residential uses in R Districts of the Unified Development Code. BACKGROUND The City of Fayetteville first began regulating nonconforming uses in 1951 with the adoption of Ordinance 1002, which "regulated and restricted the use of land and location of buildings." This same general use restriction continued until 1970 when the city expanded these regulations and adopted a comprehensive zoning ordinance. Article 4 of this ordinance set out regulations concerning nonconforming lots, nonconforming uses of land, nonconforming structures, nonconforming uses of structures and premises, and nonconforming characteristics of use. These regulations have continued almost unchanged for 40 years. The intent of the ordinances was to allow lots, structures, and uses established prior to the zoning ordinance to continue ("grandfather clause"), but "not to encourage their survival." This position was appropriate for nonconforming uses. Regulating nonconforming uses was intended to, as in many urban areas around the country, to prevent the encroachment of industrial and heavy commercial uses into residential districts, and to regulate such uses that had already been established. However, applying this same rigid standard to nonconforming structures has created an additional burden for property owners, and is fundamentally in conflict with the city's current policy, which is to revitalize older neighborhoods and creatively adapt old structures for new uses. Staff proposes to repeal and replace all of section 164.12 Nonconforming uses and structures. These changes are intended to reduce the number of restrictions applied to nonconforming structures. The regulations governing nonconforming uses, or uses and land in combination will remain relatively unchanged. A new definition for nonconforming structures, uses and lots is being provided for clarification, and a few minor changes to section THE CITY OF FAYETTEVILLE,ARKANSAS 164.13 are also being proposed to clarify separation requirements between certain residential and nonresidential uses. Summary of changes: • Revised intent. "Nonconforming structures are permitted to exist for continued and creative reuse to contribute to the surrounding character, diversity, and services in the neighborhood until such structures are removed." • No limitation on building repairs and maintenance. • Building expansions are permitted in compliance with current setbacks. • Structures removed by fire, winds or other calamity are permitted to be reconstructed on same footprint. • Voluntary removal requires conformance with code. • Two or more nonconforming lots with continuous frontage (adjacency) in single ownership shall be considered separate lots as long as each lot has at least 50% of the required lot width required by the underlying zoning. • Clarified separation requirements between specific nonresidential facilities and single-family zoning districts. DISCUSSION On September 26, 2011 the Planning Commission voted 8-0-0 in favor of a recommendation of approval for ADM 11-3934. Staff will present these proposed amendments to the Board of Adjustment on October 3, 2011. BUDGET IMPACT None. ORDINANCE NO. AN ORDINANCE AMENDING THE UNIFIED DEVELOPMENT CODE OF THE CITY OF FAYETTEVILLE RELATED TO NONCONFORMING USES AND STRUCTURES AND NON RESIDENTIAL USES IN R DISTRICTS. WHEREAS, the City of Fayetteville encourages infill, historic preservation, adaptive reuse of buildings and revitalization;and WHEREAS,the regulations of the City of Fayetteville should encourage the survival and creating reuse of nonconforming structures,but existing ordinances currently discourage their survival and reuse; and WHEREAS,the regulations of the City of Fayetteville should permit development of single- family homes on existing lots of record to encourage reinvestment in neighborhoods and appropriate infill development. NOW,THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,ARKANSAS: Section 1.That the City Council of the City of Fayetteville,Arkansas hereby amends the Unified Development Code Chapter 151: Definitions by replacing the definition for Nonconforming use with the following term: Nonconforming structures, uses, and lots. A structure or building,use or activity, or lot which was lawful prior to the adoption,revision, or amendment of the zoning ordinance but that fails by reason of such adoption, revision or amendment to conform to the present requirements of the zoning district. Section 2.That the City Council of the City of Fayetteville,Arkansas hereby repeals §164.12 Nonconforming Uses and Structures and §164.13 Non Residential Uses in R Districts and enacts a replacement §164.12 and §164.13, shown as Exhibit"A"attached hereto and made a part hereof. PASSED and APPROVED this day of ,2011. APPROVED: ATTEST: By: By: LIONELD JORDAN,Mayor SONDRA E. SMITH, City Clerk/Treasure EXHIBIT "A" �`���CH�k�FT�ErR�164.SUPPLEMENTARY'ZONING REG�ILATIONS y 164.01 ACCESSORY COMMERCIAL USES................................................................................................3 164.02 ACCESSORY STRUCTURES AND USES.......................................................................................3 164.03 ACCESSORY RESIDENTIAL USES IN NONRESIDENTIAL DISTRICTS......................................3 164.04 ANIMALS AND FOWL......................................................................................................................4 164.05 MOTOR VEHICLE REPAIR...............................................................................................................5 164.06 RESERVED.......................................................................................................................................5 164.07 ERECTION OF MORE THAN ONE PRINCIPAL STRUCTURE ON A LOT OF RECORD..............5 164.08 EXTRACTION....................................................................................................................................5 164.09 FENCES,WALLS,AND VEGETATION...........................................................................................6 164.10 GARAGE SALES..............................................................................................................................6 164.11 HEIGHT OR SETBACK REGULATIONS; EXCEPTIONS................................................................6 164.12 NONCONFORMING USES AND STRUCTURES.............................................................................7 164.13 NON RESIDENTIAL USES IN R DISTRICTS...................................................................................9 164.14 PARKING AND STORAGE OF CERTAIN VEHICLES.....................................................................10 164.15 PREFABRICATED CONSTRUCTION..............................................................................................10 164.16 STRUCTURES TO HAVE ACCESS.................................................................................................10 164.17 VISIBILITY AT INTERSECTIONS IN RESIDENTIAL/NONRESIDENTIAL DISTRICTS..................11 164.18 SUPPLEMENTARY USE REGULATIONS.......................................................................................11 164.19 ACCESSORY DWELLING UNITS(ADU).........................................................................................12 164.20 APPROVAL OF VITAL MUNICIPAL FACILITIES............................................................................14 164.21 LIMITED BUSINESS.........................................................................................................................15 164.22-164.99 RESERVED............................................................................................................................15 CD164:1 EXHIBIT "A" Fayetteville Code of Ordinances CHAPTER 164: SUPPLEMENTARY ZONING REGULATIONS 164.12 Nonconforming Uses And requirements of the underlying zoning Structures district, along with all other applicable zoning It 'is the intent of this section to regulate and development ordinances: nonconforming structures, uses or lots that are (7) For nonconforming structures located in created when zoning designationsor regulations are zoning districts utilizing build-to zones and created or changed such than an existing lawfully requirements for a minimum buildable street established structure, use, or lot no longer conforms frontage, all new construction that increases to the regulations of the Unified Development Code. It the existing building(s)footprint or volume of is also the intent of this section to .permit habitable space by 50% or more shall nonconformities to continue as they exist presently comply with the standards of the underlying and guide future uses and development to be zoning district. Building additions/expansions consist ent with the City's planning ;policy and regulations. that increase the existing building(s)footprint or volume of habitable space on a.:property (A) Nonconforming structures. by less than 50% may be located outside of the` build-to zone, so long as they are (1)_Nonconforming structures are permitted to compliant with all other applicable zoning exist for 'continued and creative reuse to and development ordinances. contribute to the surrounding character, (8) Should a nonconforming structure be moved diversity, and services in the neighborhood for any reason for any distance whatever, it until such structures are removed. shall thereafter conform to the regulations for (2) Repairs to nonconforming structures or the'district in which it is located after it is portions thereof are permitted,so long as the moved. nonconforming portion of the structure is not (g) A structure or portion thereof within any enlarged in volume,area or footprint. zoning district maybe altered to decrease its (3) Reconstruction of nonconforming structures nonconformity. or portions thereof amounting to less than (10)Owners of nonconforming; structures are 50%of the existing square feet are permitted so long as the nonconforming portion of the encouraged keep such structures good structure is not enlarged in volume, area or condition byy regular maintenance and footprint. prompt repairs when necessary. If the City's Building Official notifies the owner of any (4) Voluntary removal, damage or destruction of unsafe or unlawful condition of the building, a nonconforming structure or portion thereof the owner must repair such unsafe or amounting to 50% or more of the existing unlawful condition promptly. The Building square feet shall require either complete Official may impose a reasonable time limit removal of the structure or its reconstruction for the repairs to be complete.Failure of the in conformance with existing regulations. owner to promptly and satisfactorily complete the necessary repairs may result in (5) Involuntary damage to or destruction of a the City Council ordering a raze and removal nonconforming structure (from fire, winds or of the structure. other calamity) shall permit the owner to (11)A nonconforming structure may be brought rebuild, reconstruct or restore the structure on the same footprint of the original structure into conformity by way f an approved plus any addition or expansion that is variance from the Board of Adjustment, a allowed by the underlying zoning district. rezoning action, or by altering the structure Such reconstruction is permitted as long as it to comply with the standards begins within 18 months of the loss and underlying zoning district. A structure of the constructed unlawfully shall not be complies with all other applicable zoning, development and building codes. considered a nonconforming structure for the purposes of this chapter and is a prohibited (6)r;,For nonconforming structures located in a structure unless it is brought into compliance zoning district utilizing conventional building as provided herein. setbacks, building additions/expansions are (B) Nonconforming uses. Nonconforming uses are permitted so long as the addition is in declared by the underlying zoning district to be compliance with all current setbacks, incompatible and are regulated to further restrict building area and building height actions that would make the uses more CD 164:2 EXHIBIT "A" permanent in their ;location or expand their (e) ,Superseded by permitted use. Any nonconformity. land, structure,,or structure and land in combination, in or -on which a (1) Nonconforming uses of land, structures or of nonconforming use is superseded by a structures and land in combination. Where a permitted use,'shall thereafter conform permitted or otherwise lawful use of land or to the regulations for the district,and the of`structure and land in combination exists nonconforming use may not thereafter which would not be permitted by subsequent be resumed. regulations' imposed by the Unified Development Code, the use may be (f) Abandonment of use. When a continued as long as it remainsotherwise nonconforming use of land, a structure, lawful,,subject to the following provisions. or structure and land in combination is discontinued or abandoned for six (a) Enlargement. No use of land or an consecutive months, (except where existing structure devoted to a use,not government action impedes access to permitted in the district in which it is the premises), the land, structure, or located shall be enlarged, ,extended, structure and land in combination, shall constructed, 'reconstructed, moved or not thereafter be used except in structurally altered except in changing conformity with the regulations of the the use of the land or structure to a use district in which it is located. permitted in the district in which it is located or as required by other (g) Destruction.Removal or destruction of a ordinances.: structure with a nonconforming use shall eliminate the nonconforming status of (b) Extending use. Any nonconforming use the land. Destruction for the purpose of may be extended throughout any parts this subsection is defined as damage to of.the building which were .manifestly an extent of more than 50% of the arranged or designed'for such use, but existing gross square feet ` of the no such use shall be extended to structure. occupy any land outside such buildings (2) A nonconforming use may be brought into (c) Change of use. Any nonconforming use conformity through,a rezoning action by the of land, structure, or structure and land' City Council or by Conditional Use Permit by in combination may as a conditional use the Planning Commission, as applicable. A be changed to another nonconforming use established unlawfully shall not be use ;provided that the Planning considered a nonconforming use for the Commission,either by general rule or by purposes of this chapter and is a prohibited making finding in the specific case,finds use unless it is brought into compliance as that :the proposed use is equally provided herein. appropriate or more appropriate to the district than the existing nonconforming (C) Nonconforming Lots. Lots that do not fully meet use. in permitting such change the the requirements of the Unified Development Planning Commission 'may require Code to be considered a conforming lot for appropriate conditions and safeguards development, and thus are considered in accord with the provisions of the nonconforming lots, may be utilized for Unified Development Code. development in accordance with the following provisions: (d) Conditional use provisions not nonconforming uses. Any use which is (1) A proposed structure must meet all permitted as a conditional use in a applicable building setbacks, height and lot district under the terms of this chapter coverage requirements and other applicable and has been approved by the Planning zoning and development codes, with the Commission (other than a change specific exception of the reason for which the through Planning Commission action lot is nonconforming. from a nonconforming use to another use not generally permitted in the (2) Such lot shall have frontage onto 'a public district)`_ shall not be deemed a street, and water and sewer shall be nonconforming use in such district, but provided to the lot at the time of shall be without further action development. considered a conforming use. EXHIBIT "A" Fayetteville Code of Ordinances (3) Such lot shall have at ,least 50% of the required lot width and area of the underlying (Code 1965,App.A.,Art.7(14);Ord.No.1747,6-29-70; zoning district. Code 1991,§160.088;Ord.No.4100,§2(Ex.A),6-16-98; Ord.5296,12-15-09) (4) Anonconforming lot that does not meet the provisions above may be brought into conformity by way of an approved variance from the-Board of Adjustment, a rezoning action, or by combining a lot(s) in order to meet the standards of the,underlying zoning district. A lot that was established unlawfully shall not be considered a legal lot of record for the purposes of this chapter and no building or development,permit may be granted'until the lot is legally established as provided herein. 164.13 Non Residential Uses In RSF Districts The following requirements apply to charitable, specific nonresidential facilities where permitted in or abutting an RSF District. The Planning Commission may reduce these requirements after receiving and reviewing a development plan under the provisions of §166. shall be as lelle1^•gs For the uses listed, the minimum separation shall be measured from the actual nonresidential use or structure to the closest single- family residential structure. Type of Structures or Element of the Minimum Facility Separation ft.) Outdoor FaGilky-GFUs494 a 8041- €Atranse driveway 20-#- 744. 290-#- Outdoor spectator facilities 50 ft. Outdoor sports area without spectator 100 ft. facilities Tool or equipment storage 299 50 ft. Air conditioning tower or dispenser unit 50 ft. mere than 1,200 square feet,game beverages are served,SpeGtate If f6illy air GgRditiGROGI 100 ft- If not fully air_GgRdifinnorl 2444- Buildirig of a general hospital or 50 ft Building of a 299 ft All Othpr Fanolmima If fUlly air Ge-difiAPI.Ad If ROt fully air GGRd#iGne4 CD 164:4 151.01 Definitions.......................................................................................................................................2 CD151:1 Fayetteville Code of Ordinances CHAPTER 151: DEFINITIONS 151.01 Definitions For the purpose of Title XV, Unified Development Code, the following definitions shall apply to the divider sections, chapters, sections or subsections, unless the context clearly indicates or requires a different meaning. N Native woodlands. (Tree Preservation and Protection) A biological community of trees and woody shrubs native to the Ozark Plateau, covering an area of 10,000 square feet or greater. A list of species to the Ozark Plateau may be found in the City of Fayetteville Tree Preservation, Protection, and Landscape Manual. Natural drainage ways. (Physical Alteration of Land) Ephemeral, intermittent and perennial streams. Chapter .169 is not concerned with ephemeral streams. New construction. (Flood Damage Prevention) For floodplain management purposes, structures for which the "start of construction" commenced on or after the effective date of this development code. New Development. (Water and Wastewater Impact Fees) Construction of a new single family home and the construction or expansion of any other building or structure. The change in use of a building or structure that results in increased demand from water and wastewater facilities shall also be considered new development. Nonconforming sign. (Signs) A sign existing on 12-19-72 which could not be built under the terms of the UDC. Nonconforming use. (Airport Zone) Any pre- existing structure, object of natural growth, or use of land which does not conform to the provisions of Chapter 165 or an amendment thereto. Nonconforming structures, '_uses, ;and lots. (Zoning) A structure or building, use or activity, or lot which was lawful prior to the adoption, revision, or amendment of the zoning ordinance but that fails by reason of such adoption, revision or amendment to conform to the present requirements of the zoning district. CD151:2 Non-native woodlands. (Tree Preservation and Protection) A biological community of trees and woody shrubs, covering the area of 10,000 square feet or greater, descended from non-native species brought to the area during urban settlement. A list of typical non-native species may be found in the City of Fayetteville Tree Preservation, Protection, and Landscape Manual. Nudity or state of nudity. (Zoning) (A) The appearance of the bare human buttocks, anus, male genitals, female genitals or female breast. (B) A state of dress which fails to opaquely cover a human buttock, anus_, male genitals, female genitals, or areola of the female breast. W Obstruction. (Airport Zone) Any structure, growth or other object, including a mobile. object, which exceeds a limiting height set forth in Chapter 165. Off -site sign. (Signs) A sign which directs attention to a business, commodity, service, entertainment or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed. The term of -site sign shall include an outdoor advertising sign (billboard) on which space is leased or rented by the owner thereof to others for the purpose of conveying a commercial or noncommercial message. One -hundred year flood. (100 year)(Flood Damage Prevention) A flood which has a one percent annual probability of being equaled or exceeded. It is identical to the "base flood," which will be the term used throughout Chapter 168. On -site sign. (Signs) A sign which directs attention to a business, commodity, service, entertainment or attraction sold, offered or existing on the same lot where such sign is displayed; provided, an on -site sign may also display a noncommercial message. Operator's permit. (Manufactured Homes and Parks) (Manufactured Homes and Parks opened or expanded after 4-20-72) A written permit issued by the enforcement officer permitting the manufactured home park to operate under Chapter 175 and regulations promulgated thereunder. Original tower height. (Wireless Telecommunications Facilities) Height of a tower, not 125 W. Mountain St. Fayetteville, AR72701 PLANNING DIVISION CORRESPONDENCE Telephone: (479) 575-8267 TO: Planning Commission and Board of Adjustment Members FROM: Jesse Fulcher, Current Planner THRU: Jeremy Pate, Development Services Director DATE: Se-ptembeP24—,20=-1 Updated September 30, 2011 ADM 11-3938: Administrative Item (UDC CHAPTERS 164.12 & 164.13): Submitted by CITY PLANNING STAFF. The proposal is to amend Chapters 164.12 Nonconforming Uses and Structures and 164.13 Non Residential uses in R Districts. Planner: Jesse Fulcher BACKGROUND Background: The City of Fayetteville first began regulating nonconforming uses in 1951 with the adoption of Ordinance 1002, which "regulated and restricted the use of land and location of buildings." This same general use restriction continued until 1970 when the city expanded these regulations and adopted a comprehensive zoning ordinance. Article 4 of this ordinance set out regulations concerning nonconforming lots, nonconforming uses of land, nonconforming structures, nonconforming uses of structures and premises, and nonconforming characteristics of use. These regulations have continued almost unchanged for 40 years. The intent of the ordinances was to allow lots, structures, and uses established prior to the zoning ordinance to continue ("grandfather clause"), but "not to encourage their survival." This position was appropriate for nonconforming uses. Regulating nonconforming uses was intended to, as in many urban areas around the country, to prevent the encroachment of industrial and heavy commercial uses into residential districts, and to regulate such uses that had already been established. However, applying this same rigid standard to nonconforming structures has created an additional burden for property owners, and is fundamentally in conflict with the city's current policy and practice. Nonconforming structures: A property owner who has a nonconforming structure is severally limited by what improvements can be permitted without further action by the Board of Adjustment, the appointed body that reviews variances for nonconforming structures and lots. The code currently allows a 25% expansion to an owner -occupied single-family home, but no such expansions are permitted for non owner -occupied homes, multi -family, commercial or industrial buildings. Owners of these buildings are restricted to making repairs and improvements to the interior of the structure only, and the value of work performed is severely limited. This flexibility may work for some property owners, but many others who must exceed these restrictions in order to rehabilitate a G: IETCIDevelopment Services RevieM20110evelopment Reviewlll-3938ADMChapter 164.12116 Planning Commission 109-26-201 PComments and Redlines dilapidated home, or restore a historic structure, must make application for a variance, unnecessarily delaying a project that adds value to the property and the community. Additionally, many buildings in Fayetteville have significant historical value. However, due to the age of construction, or simply because of changes to development regulations over time, these structures are often found to be nonconforming. As written, the nonconforming structures code discourages the survival of these buildings. This is an obvious conflict with our adopted polices for infill and revitalization, reinvestment in neighborhoods, historic preservation and adaptive reuse of buildings. Nonconforming lots: The code currently recognizes older platted lots that may not meet the minimum lot width or lot area required by current zoning. These are considered nonconforming lots of record and may be developed with a single-family dwelling. Depending on specific conditions, development may be allowed by right or with approval from the Subdivision Committee. Two or more nonconforming lots with continuous frontage and owned by separate entities may be developed as individual lots. However, the same condition under common ownership results in the lots being considered one undivided lot. These properties are most often found in the center of the city, in neighborhoods that were developed prior to current zoning regulations, and provide great opportunities for infill development. However, the code prescribes a double -standard based on ownership, which the city does not regulate or monitor. Eliminating the common ownership standard, and setting minimum standards for nonconforming lots will encourage infill and revitalization, and reduce the need to request a variance based on ownership. Proposal: Staff proposes to repeal and replace all of section 164.12 Nonconforming uses and structures. These changes are intended to reduce the number of restrictions applied to nonconforming structures. The regulations governing nonconforming uses, or uses and land in combination will remain relatively unchanged. A new definition for nonconforming structures, uses and lots is being provided for clarification, and a few minor changes to section 164.13 are also being proposed to clarify separation requirements between certain residential and nonresidential uses. Summary of changes: • Revised intent. "Nonconforming structures are permitted to exist for continued and creative reuse to contribute to the surrounding character, diversity, and services in the neighborhood until such structures are removed." • No limitation on building repairs and maintenance. • Building expansions are permitted in compliance with current setbacks. • Structures removed by fire, winds or other calamity are permitted to be reconstructed on same footprint. • Voluntary removal requires conformance with code. • Two or more nonconforming lots with continuous frontage (adjacency) in single ownership shall be considered separate lots as long as each lot has at least 50% of the required lot width required by the underlying zoning. • Clarified separation requirements between specific nonresidential facilities and single- G: IETCIDevelopment Services RevieM20111Development ReviewUI-3938ADMChapter 164.12116 Planning Commission 109-26-201 DComments and Redlines family zoning districts. Recommended Motion: This code section of the Unified Development Code is technically more appropriate for the Board of Adjustment to review, due to the fact that this board administers zoning variances, which is the manner of relief for nonconformities. Staff has asked both the Planning Commission and the Board of Adjustment to review these changes, along with the City Attorney's office, and requests that each board forward ADM 11-3938 to the City Council with a recommendation for approval: Planning Commission Action: � Forwarded O Tabled Motion: Chesser Second: Cook Vote: 8-0-0 Planning Commission Meeting Date: September 26, 2011 Board of Adjustment Action: O Forwarded O Tabled Motion: Second: Vote: Board of Adjustment Meeting Date: October 3, 2011 G:IETCIDevelopment Services Review120111Development Reviewl11-3938ADMChapter 164.12I16 Planning Commission I09-26-20111Comments and Redlines Existing Law TITLE XV UNIFIED DEVELOPMENT CODE 164.12 Nonconforming Uses And which such lot is located. In a previously Structures developed subdivision, platted prior to June 29, 1970, and with the approval of the (A) Intent. Subdivision Committee, a new single-family dwelling, or an addition, or repair to an (1) Within the districts established by this existing single-family dwelling may be chapter or amendments that may later be constructed in all residential zones in adopted, if there exist lots, structure, uses of keeping with the existing standard in the land and structures, and characteristics of neighborhood so long as the interior side use which are lawful before this chapter was setback is no less than five (5) feet. passed or amended, but which would be Variance of setback requirements shall be prohibited, regulated, or restricted under the obtained only through action of the Board of terms of this chapter or future amendment, it Adjustment. is the intent of this chapter to permit these (2) Combined lots. If two or more, or nonconformities to continue until they are removed, but not to encourage their survival. combination of lots and portion of lots with It is further the intent of this chapter that continuous frontage in single ownership are nonconformities shall not be enlarged upon, of record at the time of passage or expanded, or extended, nor be used as amendment of this chapter, and if all parts of grounds for adding other structures or uses the lots do not meet the requirements prohibited elsewhere in the same district. established for lot width and area, the lands involved shall be considered to be an (2) It is not the intent of this section to prohibit undivided parcel for the purposes of this the improvement of nonconforming chapter, and no portion of said parcel shall residences by adding bath facilities or be used or sold in a manner which connecting to utilities as long as the bulk and diminishes compliance with lot width and area requirements of the RMF-40 District are area requirements stated in this chapter. met. The prohibition prescribed hereby shall not apply to a nonconforming lot on which a (3) Nonconforming uses are declared by this principal structure existed on the effective chapter to be incompatible with permitted date of adoption of this chapter and which uses in the district involved. adjoins a nonconforming lot on which a principal structure existed on the effective (4) A nonconforming use of a structure, a date of the adoption of this chapter. nonconforming use of land, or a nonconforming use of a structure and land in (C) Nonconforming uses of land (or land with minor combination shall no t be extended or structures only). Where at the time of passage of enlarged after passage this chapter the this chapter lawful use of land exists which would addition of other uses of a nature which not be permitted by the regulations imposed by would be prohibited generally in the district this chapter, and where such use involves no involved. individual structure with a replacement cost exceeding $1,000.00, the use may be continued (B) Nonconforming lots of record. so long as it remains otherwise lawful, provided: (1) Single-family dwellings. In any district in (1) Enlargement. No such nonconforming use which single-family dwellings are permitted, shall be enlarged or increased, nor extended a single-family dwelling and customary to occupy a greater area of land than was accessory building may be erected on any occupied at the effective date of adoption or single lot of record at the effective date of amendment of this chapter. adoption or amendment of this chapter, notwithstanding limitations imposed by other (2) Moving of use. No such nonconforming use provisions of this chapter. Such lot must be shall be moved in whole or in part to any in separate ownership and not of continuous portion of the lot or parcel other than that frontage with other lots in the same occupied by such use at the effective date of ownership. This provision shall apply even adoption or amendment of this chapter. though such lot fails to meet the requirements for area or width, or both, that (3) Cease of use. If any such nonconforming are generally applicable in the district, use of land ceases for any reason for a provided that setback dimensions and period of more than 120 days, any requirements other than these applying to subsequent use of such land shall conform area or width, or both, of the lot shall to the regulations in which such land is conform to the regulations for the district in located; and CD164:7 Fayetteville Code of Ordinances setbacks by one foot on each side of the (4) Additional structures. No additional structure entry door to maximum depth of six feet not conforming to the requirements of this in required front setbacks and rear chapter shall be erected in connection with setbacks and to a maximum depth of such nonconforming use of land. four feet in required interior side setbacks. (D) Nonconforming structures. Where a lawful structure exists at the effective date of adoption (e) Build -to -zone. Nonconforming structures or amendment of this chapter that could not be located on properties with a build -to built under the terms of this chapter by reason of zone may be altered to permit restriction on areas, lot coverage, height, expansion up to 25% of the existing setbacks, its location in the lot, or other square footage. requirements concerning the structure, such structure may be continued so long as it remains (2) Destruction. Should such nonconforming otherwise lawful, subject to the following structure or nonconforming portion of provisions: structure be destroyed by any means to an extent of more than 50% of its replacement (1) Alterations. No such nonconforming cost at time of destruction, it shall not be structure may be enlarged or altered in a reconstructed except in conformity with the way which increases its nonconformity but provisions of this chapter. any structure or portion thereof may be altered to decrease its nonconformity, (3) Moving. Should such structure be moved for provided, the following structures may be any reason for any distance whatever, it enlarged or altered as hereinafter provided: shall thereafter conform to the regulations for the district in which it is located after it is (a) Nonconforming residential structures moved. may be enlarged or altered by increasing the height of said structures. (E) Nonconforming uses of structures or of structures and premises in combination. If lawful use (b) Carports in residential zones may be involving individual structures with a replacement extended into the required setback cost of $1,000.00 or more, or of structure and setbacks if: premises in combination, exists at the effective date of adoption or amendment of this chapter, (i) The carport is setback at least 10 that would not be allowed in the district under the feet from the street right-of-way; terms of this chapter the lawful use may be continued as long as it remains otherwise lawful, (ii) The carport is setback at least five subject to the following provisions. feet from any interior side property line; (1) Enlargement of structure. No existing structure devoted to a use not permitted by (iii) The carport is setback at least 10 this chapter in the district in which it is feet from the rear property line; located shall be enlarged, extended, constructed, reconstructed, moved or (iv) The area below the roof is open on structurally altered except in changing the the sides; and use of the structure to a use permitted in the district in which it is located or as required by (v) The carport does not materially other ordinances. obstruct vision. (2) Extending use. Any nonconforming use may (c) In residential zones, detachable be extended throughout any parts of the awnings which are not structurally a part building which were manifestly arranged or of the building may be erected in any designed for such use at the time of adoption required front setback or rear setback if or amendment of this chapter, but no such the awning does not project more than use shall be extended to occupy any land six feet. Detachable awnings which are outside such buildings. not structurally a part of the building and which project no more than four feet (3) Change of use. If no structural alterations may be erected in any required interior are made, any nonconforming use of a side setback. structure, or structure and premises, may as a conditional use be changed to another (d) In residential zones, porch roofs and nonconforming use provide that the Planning open porches may extend into required Commission either by general rule or by CD164:8 TITLE XV UNIFIED DEVELOPMENT CODE making finding in the specific case, shall find (2) If a nonconforming structure or portion of a that the proposed use is equally appropriate structure containing a nonconforming use or more appropriate to the district than the becomes physically unsafe, or unlawful due existing nonconforming use. In permitting to lack of repairs and maintenance, and is such change the Planning Commission may declared by any duly authorized official to be require appropriate conditions and unsafe, or unlawful by reason of physical safeguards in accord with the provision of condition, it shall not thereafter be restored, this chapter. repaired, or rebuilt, except in conformity with the regulations of the district in which it is (4) Superseded by permitted use. Any located, or as required by other ordinances. structure, or structure and land in combination, in or on which a nonconforming (G) Conditional use provisions not nonconforming use is superseded by a permitted use, shall uses. Any use which is permitted as a thereafter conform to the regulations for the conditional use in a district under the terms of this district, and the nonconforming use may not chapter (other than a change through Planning thereafter be resumed. Commission action from a nonconforming use to another use not generally permitted in the district) (5) Abandonment of use. When a shall not be deemed a nonconforming use in nonconforming use of a structure, or such district, but shall be without further action structure and premises in combination, is considered a conforming use. discontinued or abandoned for six consecutive months, or for 18 months during (H) Owner -occupied nonconforming residences. any three year period (except where Notwithstanding any other provision in this government action impedes access to the subchapter, any owner -occupied nonconforming premises), the structure, or structure and residence may be enlarged, extended, premises in combination, shall not thereafter constructed, reconstructed, or structurally altered be used except in conformity with the to permit expansion up to 25% of the square regulations of the district in which it is footage of the structure as it existed on the date it located. became nonconforming, and customary accessory structures may be located on property (6) Destruction. Where nonconforming use where an owner -occupied nonconforming status applies to a structure and premises in residence is located subject to the following combination, removal or destruction of the conditions: A owner -occupied nonconforming structure shall eliminate the nonconforming residence so expanded or any accessory status of the land. Destruction for the structure so located may be enlarged, extended, purpose of this division is defined as damage constructed, reconstructed, structurally altered, or to an extent of more than 50% (or other located in conformity with the bulk and area figure) of the replacement cost of time of regulations, setback requirements, and building destruction. area requirements in the RSF-4. (7) Outdoor advertising signs. All outdoor (1) Designated Preservation Structures. Significant advertising signs (billboards) not conforming structures as designated by City Council with the provisions of this chapter shall be resolution as worthy of preservation shall be removed within the period prescribed by exempted from the provisions of this section. § 174.06. (Code 1965, App. A., Art. 4(1), (2), (4)--(7); 5(8); Ord. No. (F) Repairs and maintenance. 1747, 6-29-70; Ord. No. 1806, 7-16-71; Ord. No. 1891, 12-5- 72; Ord. No. 2126, 7-14-75; Ord. No. 2505, 2-20-79; Ord. (1) On any nonconforming structure or portion of No. 1918, 5-15-83; Ord. No. 3114, 9-3-85; Ord. No. 3124, 9- a structure containing a nonconforming use, 17-85; Ord. No. 3130, 10-1-84; Code 1991, §§160.135-- 160.142; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. 4930, 10- work may be done in any period of 12 03-06; Ord. 5312, 4-20-10) consecutive months on ordinary repairs, or on repair or replacement of nonbearing 164.13 Non Residential Uses In R walls, fixtures, wiring, or plumbing, to an Districts extent not exceeding 10% of the current replacement cost of the nonconforming The following requirements apply to charitable, structure, or nonconforming portion of the cultural, educational, recreational, health, institutional, structure as the case may be, provided that religious, social, and similar nonresidential facilities the cubic content existing when it became where permitted in or abutting an R District. The nonconforming shall not be increased. Planning Commission may reduce these requirements after receiving and reviewing a development plan under the provisions of §166. CD164:9 Fayetteville Code of Ordinances Separation of structures of areas for uses listed above shall be as follows: Type of Structures or Element of the Minimum Facility Separation (ft.) Outdoor Facility or Use: Eating or picnic area 100 ft. Entrance driveway 20 ft. Outdoor activity area 75 ft. Outdoor lighted area 200 ft. Outdoor spectator facilities 50 ft. Outdoor sports area without spectator 100 ft. facilities Tool or equipment storage 200 ft. Indoor Facilities: Air conditioning tower or dispenser unit 50 ft. Auditorium, ballroom, dining room, or meeting room having a floor area of more than 1, 200 square feet, game court, game room, gymnasium, locker or shower room, place where alcoholic beverages are served, spectator facilities, swimming pool, theater, or similar indoor facility: If fully air-conditioned 100 ft. If not fully air-conditioned 200 ft. Building of a general hospital or 50 ft. convalescent home Building of a hospital, sanitarium or 200 ft. convalescent home for alcoholic, mental, nervous, narcotic or contagious patients All Other Facilities: If fully air-conditioned 50 ft. If not fully air-conditioned 100 ft. (Code 1965, App. A., Art. 7 (14); Ord. No. 1747, 6-29-70; Code 1991, §160.088; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. 5296, 12-15-09) NORTHWEST ARKANSAS DEMOCRAT-GAZETfE NORTHWESTARKANSAS THE MORNING NEWS OF SPRINGDALE THE MORNING NEWS OF ROGERS NBVSPAPE1-6— NORTHWEST ARKANSAS TIMES LLC BENTON COUNTY DAILY RECORD 212 NORTH EAST AVENUE, FAYETfEVILLE, ARKANSAS 7 2701 I P,O, BOx 1607, 72702 1 479.442-1700 1 WWW.NWANEWS,COM AFFIDAVIT OF PUBLICATION I, Cathy Wiles, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Newspapers, LLC, printed and published in Washington and Benton County, Arkansas, bona fide circulation, that from my own personal knowledge and reference to the files of said publication, the advertisement of: City of Fayetteville Ordinance 5453 Was inserted in the Regular Editions on: October 27, 2011 Publication Charges: S84.30 WL" Cathy Wiles Subscribed and sworn to bore me This � day of./f%rn , 2011. c) �z�,��L' �' Notary Public My Commission Expires: SANDRA E.SCHACHERBAUER BENTON COUNTY f NOTARY PUBLIC • ARKANSAS W Co"IrrYS4bn $discs APrII 13, 2017 C T"tN ion NO, 123 M21 RECEIVED Nov 0 9 Z011 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE `_ -, ___ ORDINANCE NO, 5453 AN ORDINANCE AMENDING THE UNIFIED DEVELOPMENT CODE OF THE CITY OF �rtieDESDSTRUCTURELLE DTO NONCONFORMING '41�S FWD NON DENTIALaVUSES IN R DISTRICTS. 1WHEREAS, the City Of Fayetteville encourages infill,hI5tO/jC A WHEREAS,line t egon. adaptive reuse 41 of builY ordings and revitalization and their creasu vL reuse Of n�onCanform f [hestructures, ��F but uroub encourage the survival and WHEREAS, he reuse: antl exissirg Ordinances currently discourage farm regulations of the Cray of Fayetteaitle stwted pamlit development of single- fY homes on existing lots of record to encourage reirrvestment in neighborhoods aril aAPropriate infill tlevelopment. NOW, THEREFORE BE IT ORDAINED FAYETTEyfLLE, ARKANSAS: . BY THE Cl COUNCIL OF THE CITY OF Cy ft Urn d I� [hag entt Code e(^.haoptaf 15 Defiru �ttevtla, Art Srtsas hereby amends the Unified Nonccvtl�bg use with the foAowing Ind n. Toni by r"Ong fhe defnir'On for °rmrn9 to the aCIO uses, Asjon s. A stricture or building, use or activity, or lot which y reason f S to the adoption, rgrjsjorl• Or amendment of the zoningoa but that fails reason °f such adoption, revision or amendment to cof the to the present Of the zoning district o�r�' Section 2, Ttrat the City Courlcii Of the City of Fe requirements Nonconforming Uses ivld Structures and §164.i 3 Non q�nsas hereby rO enaCtS a replacement §164.12 esidential Uses in q p�� s na made a part hereof. and §164.13, shown as E,mibtt A. attached hereto erld PASSED and APPROVED fhls 16th day of October, 2011. APPROVED: By: _ ATTEST: LIONELD JORDAN, Mayor By: Exhibits for this Ordinance ma SONDRA E. SMITH, City Cle k/Tr Y be v ewed in the offce of the C easurer N CWkfrreasurer. * *NOTE* * Please do not pay from Affidavit. Invoice will be sent.