Loading...
Item F3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: August 16,2001 Division: Growth Management Bulk Item: Yes No X Department: N/A AGENDA ITEM WORDING: BriefIng by the Growth Management Division staff on possible courses of action to address build-back rights of non-conforming properties. ITEM BACKGROUND: At its regular July meeting, the Board of County Commissioners asked the staff to review the applicable Comprehensive Plan and Land Development Regulations concerning the rights of non-conforming structures and uses to build-back in case of substantial damage or improvement to the property. The Growth Management Division staff has prepared a briefing paper outlining the issues involved and suggested courses of action. The Board will be asked to provide direction to the staff on implementing any appropriate amendments to the Comprehensive Plan and/or Land Development Regulations. PREVIOUS RELEVANT BOCC ACTION: BOCC requested Growth Management Division staff to prepare a briefing paper on the non-conforming development build-back issue. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Provide policy direction to staff. TOTAL COST: N/A BUDGETED: Yes N/A No COST TO COUNTY: N/A REVENUE PRODUCING: Yes N/ A No AMOUNT PER MONTH N/A Year DIVISION DIRECTOR APPROVAL: CP APPROVED BY: County Atty l Not Required AGENDA ITEM # c2 - 8 DOCUMENTATION: Included ..L To Follow DISPOSITION: County of Monroe Growth Management Division 2798 Overseas Highway Suite 410 Marathon, Florida 33050 Voice: (305) 289 2500 FAX: (305) 289 2536 Board of County Commissioners Mayor George Neugent, District 2 Mayor Pro Tern Nora Williams, District 4 Comm. Charles "Sonny" McCoy, Dist. 3 Comm. Murray E. Nelson, District 5 Comm. Dixie M. Spehar, District I MEMORANDUM TO: Board of County Commissioners DATE: Timothy J. McGarry, AICP mr:J/ j Director of Growth Manage__-Tl/( August 8, 2001 FROM: SUBJECT: Policy Paper on Non-conforming Development Issues Overview In response to a request from the Board of County Commissioners at its July regular meeting, the Growth Management staff has prepared this policy memorandum which addresses issues involved with the rights of property owners to build back their properties currently non-compliant with the Land Development Regulations (LDRs). Specific recommendations are provided at the conclusion of the paper for consideration by the Board that addresses these issues. " Purpose and Scope Although the build-back issue is impacted by all the development requirements of the County's LDRs, this paper focuses its investigation primarily on issues related specifically to non- conforming density, since it is the major concern raised by the Board and has significant implications for many property owners in the Keys. The results of this investigation provide the basis for the staff s recommended course of action for consideration by the BOCC. Contents This memorandum contains the following sections: overview of policy concern raised by the Board at its July meeting; planning principles and legal basis for regulating non-conformities; existing County regulations governing non-compliant properties; major exemptions to these regulations; application of policies and regulations to non-conforming properties; evaluation by staff of three significant policy issues; and staff recommendations on addressing non-conforming policy issues for consideration by the Board of County Commissioners. C:\DOCUMEN1\BOCC\buildbackoptions.doc Page I of8 Policy Concern Raised by BOCC At its July meeting, the Board of County Commissioners raised a specific concern related to the rights of property owners to rebuild or substantially improve their properties in situations where the development did not meet minimum parcel size or density standards. An example was the recent case of a vacation rental residence on an off-shore island. In the Planning Director's opinion, which was sustained by the Planning Commission, the residence can not rebuilt if substantially damaged, because it had insufficient acreage (needs a minimum of 10 acres) and is not protected by the provisions of the Comprehensive Plan and LDRs governing principal residential uses. As noted by Commissioners, this issue is Keys wide. Numerous properties from trailer parks to condominiums are non-compliant with density provisions of the LDRs. Many of these uses can not be rebuilt or substantially improved, which creates some real concerns for the Commission. Therefore, the staff was requested to investigate the issue more thoroughly and come report back to the Board at its August meeting with specific recommendations. Planning Principles and Legal Basis for Regulations A primary purpose of zoning is to create a coherent plan of development for community and neighborhood districts with compatible uses and development standards that reflect the community's vision and public interest as articulated in its comprehensive plan. Zoning recognizes that many uses and structures existing prior to the enactment of specific regulations will be purposefully rendered non-compliant in order to eventually eliminate those uses and structures. The elimination of these incompatible uses and structures is intended to be accomplished through their timely obsolescence, destruction or similar factors. The elimination and curtailment of non- conformities has been upheld by the courts as a legitimate exercise of police power. However, any requirement for the immediate compliance of existing development with new regulations would be deemed to be a retroactive application of police powers by the courts and would raise issues of fairness and equity. Therefore, although the planning theory behind the elimination of non-conformities is sound, in practice few such non-conforming uses or structures go away within a short period. Therefore, zoning regulations, such as the County's, place certain limitations on enlargements, extensions, or changes in the non-conforming use or structure to hasten their eventual elimination. These regulations are intended to allow owners of existing, legally established non-compliant structures and uses the enjoyment and use of their properties until such time that a specific threshold event is reached. They are not intended to protect or vest property owners with unlawful or otherwise unauthorized changes to property or structures. 1 I Properties with illegal improvements are subject to code enforcement action and/or withholding of permits for new improvements. C:\DOCUMENT\BOCC\buildbackoptions.doc Page 2 of8 On the other hand, if zoning were to "grandfather" all existing development, it would defeat the very purposes for having a comprehensive land use plan upon which the zoning is based. It would invalidate the need for changes in development standards to protect specific public interests such public safety, health, water quality, and environmental resources. Therefore, any zoning ordinance, must ultimately balance the need to eliminate non-conformities with other public values and needs, for example the protection for citizens from changes in regulations that may negatively impact their primary residences. Existing Regulations Governing Non-Conformities Comprehensive Plan Objective 101.8 and its supporting policies establish the specific policy framework for the County's regulations governing non-conforming uses and structures, which are implemented in Section 9.5-141 through Section 9.5-160 of the LDRs. Except as will be noted in the following section, these policies and regulations do not allow the expansion, extension, or substantial improvement of non-conforming uses and structures unless these structures or uses come into compliance with the LDRs. Substantial improvement is defined as any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the pre-destruction or pre-improvement market value of the structure. Improvements to historic structures and improvements to meet health, sanitary, or safety code specifications are not considered substantial improvements. In general, the Comprehensive Plan and LDRs characterize non-conforming uses as any use or improvement that is non-compliant with the permitted uses of the zoning district in which the property is situated or the zoning districts density and intensity (Floor Area Ration) standards. Non-conforming structures are generally those that are non-complaint with bulk, shoreline and wetlands set backs, and flood plain management standards. The LDRs provide some latitude in bringing existing development into compliance with other development standards such as parking, setbacks, landscaping, bufferyards, and outdoor lighting regulations. If a substantial improvement is made to a structure or if a change in use occurs, then depending upon the size and configuration of the property involved, these standards must only be met to the maximum extent practical. 2 Major Exceptions to Rules Governing Non-Conformities The Comprehensive Plan and LDRs provide various administrative and regulatory exemptions from their development standards~ These exemptions include: variances and waivers; beneficial use and vesting; and specific policies of the Comprehensive Plan and the companion regulations in the LDRs. 2 Non-conforming signs are regulated under a separate set of rules in the LDRs. C:\DOCUMEN1\BOCC\buildbackoptions.doc Page 3 of8 Variances and Waivers If specific hardship conditions are met, the Planning Commission may grant variances to provide relief from various provisions of the LDRs including setbacks, floor area ratio, parking and loading, bufferyards, access, and open space (non-environmental).3 The Planning Director has limited authority to grant waivers from setback regulations in certain situations such as conditional uses or within commercial fishing districts. Vesting and Beneficial Use The Comprehensive Plan and LDRs provide protection from changing regulations for development projects that have already received official development approval (vesting) or through utilization of development agreements which freeze the regulations in place which apply to these generally multi-year projects. Although they have never been applied in a build-back situation, beneficial use provisions of the Comprehensive Plan and LDRs allow all provisions of the Comprehensive Plan and LDRs to be waived or varied to allow some reasonable economic use of the property. Comprehensive Plan Policies The Comprehensive Plan and supporting provisions in the LDRs provide exemptions or deviations from regulations for certain non-conforming uses or structures for residential density, commercial fishing land use categories, certain non-residential uses, and setbacks for single family dwellings. Density Exemption. The Comprehensive Plan and LDRs contain several policies and regulations that provide significant exemptions from the strict rules governing non-conformities. The one with which the Board may be most familiar is Policy 101.4.23 (implemented by Section 9.5-268 of the LDRs) that allows a legally-established residential dwelling unit in existence and used as a principal residence on the effective date of the Comprehensive Plan to be replaced no matter what the density is allowed on the property. F or all intent and purposes, this policy and regulation has been interpreted by the Planning Department to "grandfather" these properties as to density, essentially rendering these properties as conforming, therefore allowing expansion, enlargement, and substantial improvements to be made to these properties. This exemption has been extended by an official Planning Department interpretation to protect single family, duplex or attached residential units within Improved Subdivision or Suburban Commercial Districts where they would be considered a non-conforming use rather than solely non-conforming use as to density. However, these non-conforming properties are presently limited to no expansions or additions, but may be totally replaced in the footprint of the existing structure. 3 The Growth Management Division staff is of the opinion that allowing variances from floor area ratio requirements is not good planning practice and is really a "use variance" in disguise; use variances are not legal under Florida Statutes. C:\DOCUMENT\BOCC\buildbackoptions.doc Page 4 of8 As specifically defined by Planning Department policy, a principal dwelling unit must be used for a permanent residence. A homestead exemption is generally prima facie evidence of a principal dwelling. Motels, hotels, and short-term rentals (tenancies of1ess ,than 28 ,days duration) are not considered principal dwellings, therefore, these properties are required to follow all the rules governing non-conformities. Build-Back in Mixed Use/Commercial Fishing Category. Policy 101.8.6 of the Comprehensive Plan and Section 9.5-143 (f)(3) allow any non-conforming use existing as of September 16, 1986, and located within a Mixed Use/Commercial Fishing future land use category (Commercial Fishing Area, Commercial Fishing Village, or Commercial Fishing Special District) to be rebuilt, if damaged or destroyed, to the pre-existing use, building footprint and configuration without an increase in density or intensity of use. Build-Back for Non-conforming Non-residential Uses. Comprehensive Plan Policies 101.4.1, through 101.4.4 provide some limited build-back protection to some lawfully established non- conforming non-residential uses existing in residential districts on the effective date of the Comprehensive Plan. These non-conforming uses are allowed to develop, redevelop, reestablish and/or substantially improve provided that the uses are limited in intensity, floor area, density, and to the type of use that existed on January 4, 1996 or limited to what pre-2010 Comprehensive Plan LDRs allowed. These provisions do not protect development that is non-compliant with the density standards of the 1986 LDRs (pre-2010 Comprehensive Plan LDRs). Residential Setbacks in Build-Back. Policy 101.8.10 of the Comprehensive Plan allows non- conforming single family homes (which is interpreted to include manufactured housing) to be rebuilt within their footprint despite setback provisions of the LDRs, if situations where strict compliance would result in a reduction in lot coverage compared to the pre-destruction footprint of the house. However, the maximum shoreline must be maintained and in no cases can the shoreline setback be less than 10 feet from mean high water (usual requirement is 20 feet from altered shorelines and 50 feet from unaltered shorelines). Application of Policies and Regulations Affecting Non-conformities As discussed previously where residential uses are "grandfathered" as to density, they are able to be expanded, enlarged, and have substantial improvements made to them as long as these improvements meet all other requirements of the Comprehensive Plan and LDRs. Therefore, most residences with permanent tenants or which are not held out for transient residential uses fall under this protected category. Where mobile homes, used as a principal residence, are not permitted as an allowable use within a district, such as Improved Subdivision, it may not be expanded, extended, or substantially improved and can only be replaced with a conventional or modular house. Over-density non-conforming residential structures containing two or more units, particularly those in condominium ownership, generally create a real dilemma for the staff, since these structures may contain both principal residences along with transient residences. Therefore, these structures C:\DOCUMEN1\BOCC\buildbackoptions.doc Page 5 of8 are generally not allowed to make substantial improvements, expansions, or enlargement. If rebuilt after destruction, these projects would only be able rebuild to the maximum density of the zoning district in which it is located or the maximum number of units containing principal residences, whichever is greater. The last category is non-compliant commercial development and transient residences (vacation rentals, hotels, motels) and non-residential floor space, which are not given much protection from the strict provisions governing non-conformities. Therefore, if these properties are over density or intensity they are not permitted to make substantial improvements, enlargements, or extensions without coming into compliance with the LDRs. Evaluation of Policy Issues For the purposes of this paper, the Growth Management Division has distilled the many issues related to governing non-conformities into three specific areas: non-conforming as to use; non- conforming as to density; and, non-conforming as to other development standards. Non-conforming as to Permitted Use. The provisions of the Comprehensive Plan and LDRs to eventually eliminate uses no longer permitted within a zoning district are fully supported by sound land use planning practices. It would be inconsistent with these practices to promote the retention of land uses deemed incompatible by the Comprehensive Plan. Some limited protection has already been given to some non-residential development within residential land use categories made non-compliant by the Comprehensive Plan. These provisions will require implementation through amendments to the LDRs or changes in the County's zoning districts. As stated previously, the Planning Director has opined that residential uses considered a non- conforming use because they are not specifically permitted within a zoning district should be given specific protection from the strict provisions governing non-conformities. The only exception would be mobile homes, since they should still be required to come into compliance by replacement with a modular or conventional home. Therefore, the staff recommends that existing provisions to limit and eventually eliminate non- conforming uses should be continued, but specific amendments be made to the Comprehensive Plan and LDRs to expressly protect residential uses from application of the strict non-conforming policies and regulations. Non-conforming as to Density. As discussed previously in this paper, a significant portion of existing over-density transient residential units, including vacation rentals, can not be rebuilt or substantially improved. This ensures that RV and trailer parks and hotels can not modernize their facilities. It would be difficult to modernize and upgrade facilities without making substantial improvements, occupying more land, expanding facilities, or converting existing uses to more marketable ones. Although the LDRs do provide a mechanism (off-site transfer of units) to bring such properties into conformance, few property owners have availed themselves of this mechanism. C:\DOCUMEN1\BOCC\buildbackoptions.doc Page 6 of8 In the event of a major storm event, the County could be faced with a significant number of units that can not be legally rebuilt unless they are proved to be principal residences. Notwithstanding the administrative difficulties in even making such determinations on a large scale, the reality is that it will be exceedingly difficult for the County and its governing body to tell large groups of property owners that they can not rebuild their residences or transient residential properties. A complicating issue are the policies of the Comprehensive Plan, which are intended to reduce risks to property and life within coastal high hazard areas. However, one must face the reality almost the entire County is located within a coastal high hazard area, so the issues of property rights for existing development makes full application of such policies to existing development unrealistic. Therefore, the staff recommends that the practical course of action would be to amend the Comprehensive Plan and LDRs to extend the density protection of Policy 101.4.23 for all lawfully established residential and transient residential uses. The staff would be remiss, if it failed to point out a problem which will become more acute as redevelopment pressures increase in the Keys. The existing provisions to protect density of principal residences, also provides significant incentives for the market and property owners to redevelop and convert the County's affordable housing, particularly traditional trailer parks, to market rate housing. These rules allow such redevelopment to occur at densities higher than allowed under the current LDRs effectively displacing lower income families. The staff recommends that further investigation be done to determine what appropriate, if any, policies and regulations can be put in place to address this increasingly significant issue. Another issue related to the protection of density issue is the problem within RV or SC districts where RVs have been legally permitted (pre-1989) to become permanent structures. These non- road ready trailers are generally considered non-conforming uses, similar to how the Planning Department has treated duplexes in Improved Subdivisions. The real issue is how these legally established structures should be handled in a build-back situation, since only RV spaces and hotel units are allowable uses. The staff recommends this issue be further investigated, including obtaining more specific data on the extent of the problem. Non-conforming as to Other Development Standards. The problems with compliance of existing development with other current development standards simply can not be quickly addressed. As indicated previously, the LDRs provide a broad framework for bringing properties into compliance including the opportunity to obtain relief through variances or administrative waIvers. The staff is currently working on comprehensive revisions to the LDRs to allow more flexibility. In addition, the Livable CommuniKeys Program will address redevelopment issues and standards for specific areas of the Keys, so it would be premature to make substantial changes on how non- conformities are addressed until the appropriate studies and investigations can be concluded. C:\DOCUMENT\BOCC\buildbackoptions.doc Page 7 of8 Therefore, the staff recommends that short-term relief will be provided by the comprehensive revision of the LDRs, but more substantive changes will be forthcoming in the longer term as products of the Livable CommuniKeys Program. Recommendations Based on its evaluation of the major policy issues related to non-conformities, the Growth Management Division offers the following recommendations to the Board of County Commissioners: . Direct staff to prepare appropriate amendments to Comprehensive Plan Policy 101.4.23 and Section 9.5-268 of the LDRs to extend the rebuild provisions to all lawfully established residential and transient residential uses, including providing clear policy protection for residential dwellings that are considered non- conforming as to use, from the non-conformities provisions of the LDRs. . Direct staff to further investigate the issues related to the conversion of affordable housing, particularly mobile home/trailer parks, to determine what appropriate regulatory other non-regulatory changes, if any, should or can be done to mitigate this problem. . Direct staff to further investigate the non-conformity issues related to the legal conversion of R Vs to permanent structures to determine extent of problem and identify appropriate options to address the problem. . Direct staff to continue its efforts to prepare comprehensive revisions to the LDRs to provide more flexibility in the application of development standards and to prepare specific policy and regulatory changes addressing redevelopment standards recommended by the Livable CommuniKeys Program. C:\DOCUMEN1\BOCC\buildbackoptions.doc Page 80f8