08-06-01 v yf
t!L
400:S
WORKSHOP AGENDA
CITY COMMISSION
AND COMMUNITY DEVELOPMENT BOARD
CITY OF ATLANTIC BEACH
MONDAY, AUGUST 06, 2001, 5:00p.m.
This workshop session has been scheduled at the request of the City Commission and the
Community Development Board in order to discuss issues related to proposed
amendments to Chapter 24 of the City Code, which sets forth the Zoning and Subdivision
Regulations for the City of Atlantic Beach. The primary topics to be discussed relate to
existing and proposed language and provisions within the Code, which address the
treatment of certain Nonconforming Uses and Structures, and Nonconforming
(substandard) Lots.
1. Call to order.
2. Staff comments.
• Distinction between Nonconforming Uses, Nonconforming Structures and
Nonconforming Lots.
• Comprehensive Plan direction related to Nonconforming Uses.
• Legal status of Nonconforming Uses, Nonconforming Structures and
Nonconforming Lots.
• Staff recommendations available to address nonconforming elements.
3. Discussion.
4. Staff update on anticipated schedule to complete Chapter 24 amendments.
5. Adjournment.
Notice to persons needing special accommodations and to all hearing impaired persons: In
accordance with the American with Disabilities Act persons needing any special
accommodation or an interpreter to participate in this proceeding should contact the City
of Atlantic Beach, 800 Seminole Road, Atlantic Beach, Florida 32233 or by calling (904)
247-5800 not later than 5 days prior to the date of this meeting.
• MINUTES OF THE JOINT WORKSHOP OF THE ATLANTIC BEACH CITY COMMISSION
AND COMMUNITY DEVELOPMENT BOARD HELD IN COMMISSION CHAMBERS AT
5:00 P.M. ON MONDAY, AUGUST 6, 2001
City Commissioners Present:
John S. Meserve, Mayor
Mike Borno
Rick Beaver
Theo Mitchelson
Dezmond Waters, City Commissioners
Community Development Board Members present:
Mary Walker
Karl Grunewald
Robert Frohwein
Staff Present:
Jim Hanson, City Manager
Sonya Doerr, Community Development Director
Don Ford, Building Official
Alan Jensen, City Attorney
Maureen King, City Clerk
The meeting, which was held for the purpose of reviewing the proposed new zoning ordinance,
was called to order by Mayor Meserve.
The Mayor thanked the Community Development Director, Sonya Doerr, for her report on
revisions to the zoning ordinance relating to nonconforming uses, structures and lots. Ms. Doerr
explained in some detail the difference between nonconforming uses, nonconforming structures
and nonconforming lots of record. She also explained the difference between common law
vested rights and statutory vested rights. A copy of Ms. Doerr's report is attached as Exhibit A.
Ms. Doerr also distributed amended language for Sec. 24-83, 24-84, 24-85 and 24-86, a copy of
which is attached as Exhibit B.
Discussion ensued and Ms. Doerr said that while the city had attempted to follow the zoning
laws, Atlantic Beach, like many other cities, had not always followed the Comprehensive Plan,
and pointed out that when a conflict existed between the zoning code and the Comprehensive
Plan, the requirements of the Comprehensive Plan would prevail. She also pointed out the State
Comprehensive looked very closely at density, especially in coastal high hazard areas. She felt
the city needed to developed land development regulations consistent with the Comprehensive
Plan.
Discussion ensued regarding lots in multi-family zones on which town homes had been built and
which had subsequently been divided and individual units sold to separate owners. It was felt
that while the city could not prevent a property owner from selling a portion of his property,
thereby creating substandard lots,the city was not obligated to issue permits for construction on
0 Page Two MINUTES August 6, 2001
such lots unless the proposed structure would meet the setback and building code requirements.
The Mayor wanted to make sure that property owners were protected and Ms. Doerr suggested
the city develop procedures for dealing with common law vested rights and statutory vested
rights. The Mayor felt language drafted by Ms. Doerr met the needs of the city and complied
with the Comprehensive Plan. It was suggested that language could be included to provide that
where variances were lawfully granted in the past,property owners would not be required to
apply for a new variance in order to rebuild a structure. It was agreed that the goal should be to
bring structures into compliance with the city code as much as possible and where variances
were not granted in the past, property owners should be required to get variances in order to
rebuild. It was also felt that while town homes in the core city had been the focus of most of the
discussions, the same policy would apply to all town homes throughout the city.
Following further discussion, it was agreed the City Commission generally liked the new
proposed language, agreed to continue with the change from multi-to single-family zoning,
grandfather in the use and if a variance was legally granted the structure could be rebuilt on the
original footprint provided it was built to current codes.
Ms. Doerr also requested direction from the City Commission regarding other obstructions or
projections into the setbacks and said it was her opinion nothing should protrude into narrow(5
41) ft.) setbacks. Ms. Doerr also inquired regarding height restrictions of other structures such as
planters, etc.
Discussion ensued regarding porches and decks and it was agreed to discuss this subject more
fully at the next meeting.
There being no further discussion, the Mayor declared the meeting adjourned at 7:05 p.m.
Maureen King
City Clerk
EXHIBIT A
MINUTES - AUGUST 6, 2001
i' !.=Ali,/, CITY
P 800 SEMOF IT NTIROAD C BEACH
•
JS ! - ATLANTIC BEACH,FLORIDA 32233-5445
r ss1 TELEPHONE:(904)247-5800
' ' � FAX:(904)247-5805
r SUNCOM:852-5800
" http://ci.atlantic-beach.fl.us
.i---=j- /J
—J131>`'
MEMORANDUM
TO: City Commission
Community Development Board
FROM: Sonya B. Doerr, AICP /
Community Development Director
DATE: July 31, 2001
REGARDING: Chapter 24 Revisions related to Nonconforming Uses, Structures
III and Lots.
Enclosed you will an agenda for Monday afternoon's workshop meeting, as well as
further recommendations related to proposed revisions to the zoning regulations. Chapter
24, Sections 24-83 and 24-85, set forth the current regulations related to the treatment of
Substandard (Nonconforming) lots of record, nonconforming uses and buildings. While
the term "nonconforming" generally means that some characteristic associated with a
parcel of land does not comply with current land use regulations, Florida law and the
Comprehensive Plan treat structures, lots of record and uses differently. The distinctions
between the three are briefly summarized as follows.
Nonconforming Use
A Nonconforming Use is a use of land that does not comply with the requirements of the
Zoning District designation and/or the Comprehensive Plan Future Land Use designation
established for that land, but which use was lawfully established prior to the
implementation of zoning, the Comprehensive Plan or other land development
regulations. (Uses that were not "lawfully established" would be considered as illegal
uses.)
The currently effective zoning regulations, which were enacted long prior to the 1990
adoption of the Comprehensive Plan, acknowledged the existence of uses that were
lawful before the establishment of Zoning Districts within the City of Atlantic Beach and
set forth conditions under which those uses could be continued. The Comprehensive
a Plan, in Future Land Use Element Objective 1.3, requires the City to "eliminate
111, nonconforming uses having a deleterious effect on surrounding areas... "
Florida law, however, recognizes that property owners are entitled to certain rights with
respect to lawfully established Nonconforming Uses. The doctrines of vested rights
(commonly referred to as grandfathered rights) and equitable estoppel provide legal
principles through which a property owner shall be guaranteed certain rights which have
been legally acquired. Local governments may choose to determine the entitlement to
vested rights in differing administrative manners, but Florida Courts have long
recognized both"Common Law"vested rights and"Statutory"vested rights. Both forms
of vested rights are often applied with respect to land use controls. These are very briefly
summarized as follows:
• Common law vested rights are generally found to exist where a property owner
has in good faith reliance depended on some act or omission of government (such
as the adoption of zoning or land use regulations), and because of that reliance,
the property owner has had a substantial change in position or incurred such
obligation that it would be"highly inequitable or unjust"to take away such rights.
• Statutory vested rights are found to exist where a property owner has
commenced development of property and continued or completed development in
good faith after the issuance of a "final local development order." Local
governments may have slightly different definitions of final local development
orders, but the issuance of a building permit, and generally, the acceptance of a
subdivision plat where all that remains is the issuance of a building permit, are
considered final local development orders.
Nonconforming Buildings or Structures
This term refers to a structure that no longer complies with some dimensional standard,
such as setbacks, height or lot coverage. Traditional zoning ordinances across the
country prohibit the reconstruction of nonconforming structures if those structures are
destroyed beyond some fixed measure, which has been established as fifty percent (50%)
in the City of Atlantic Beach, unless a Variance is granted. The requirement to obtain a
Variance should not limit the Use of the property, as long as the use is allowed by the
zoning regulations and the Comprehensive Plan, or the property owner has a vested right
to continue the use.)
Any new or replacement structure should, however, be required to comply with the
current regulations, unless a hardship which prohibits the reasonable use of the property,
exists. In such cases, the relief granted through the Variance should be the minimum
necessary to afford reasonable use of the property.
Nonconforming Lot of Record
A Lot of Record is a parcel that through some established procedure, has been approved
for a Use as specified by the zoning regulations, and also the Comprehensive Plan after
adoption of the Plan. It is important to include a definition within the Zoning Code
which defines a legal Lot of Record. A lot or parcel that has simply been recorded in the
•
official records of the County may not necessarily constitute a legal lot. In such cases
where a lot has been created or divided in a manner not in compliance with the
Comprehensive Plan, zoning, subdivision, and any other land use laws, such lot should
2
not be a"permittable" Lot. In other words, unless it can be demonstrated that a parcel is
a legally created lot,building permits to construct upon that lot should not be issued.
How these terms apply to the proposed zoning code changes....
For your consideration, a revised draft related to Nonconforming Lots, Uses and
Structures is attached. I have summarized these recommendations below. (Please note
that the format and numbering of this Section has changed slightly.) An Intent statement,
Section 24-83(a), has been added, which clearly states that property owners are in fact
entitled to certain rights associated with nonconformities, but beyond those legal rights,
the City should not perpetuate survival of nonconformities. Paragraphs (b) through (e),
following the Intent statement, specifically address how each type of nonconformity
should be treated.
• In the case of residential Nonconformin2 Lots of Record, which in this city are
most all platted lots, a property owner should be entitled to continued use of that
property for a single-family residence and the customary accessory structures,
provided setbacks are met. If a Variance is required for new construction or
renovation, the property owner has the right to seek a Variance, and if a hardship
can be demonstrated,may be entitled to relief through a Variance.
• Other than the prescribed single-family uses, future two-family and multi-family
development or subdivision of such lots should not be allowed, unless consistent
with the zoning district designation and the density limitations of the
Comprehensive Plan. Where new lots are created resulting from "illegal"
subdivisions,building permits should not be issued to construct upon those lots.
• Nonconformin2 Structures are very common throughout communities where
pre-war subdivisions were platted. After World War II, development and platting
patterns across the country changed dramatically as suburban development
emerged and larger lots were platted. The typical 50-foot wide lots, which were
common through the late 1920s, no longer represented suburban desires. Of
course,much of northeast Florida, including the City of Atlantic Beach, had been
previously platted into 50 by 100 foot, or smaller, lots. As zoning was enacted
over the next thirty years, most communities adopted generous yard setbacks that
were appropriate for larger lots, but which were very restrictive for the typical
smaller lots. In many older communities, however, lots had already been
developed before zoning was enacted, and often before building permits were
required,resulting in countless nonconforming structures.
Zoning regulations across the country treat nonconforming structures fairly
consistently: where such structures are replaced beyond some measurable amount
(usually 50% to 75%), the new construction must comply with setbacks or a
Variance must be granted. Our zoning regulations related to the treatment of
11, nonconforming structures are consistent with those throughout Florida.
3
•
• Nonconforming uses present more challenging issues. Our Comprehensive Plan,
and common land use law require the gradual elimination of nonconforming uses,
yet property owners often have significant commitments and investments in the
use of their property, which may be later determined by government to be a
"nonconforming use." The challenge for land use regulation is to find the balance
between the elimination of nonconforming uses, while also recognizing the
constitutional property rights due to a land owner. The subject of vested, or
grandfathered, rights has been a greatly embattled subject in the State of Florida,
particularly since the enactment of the Growth Management Act in 1985.
Fortunately, fifteen years of case law, now prescribe a fairly consistent
acknowledgement of vested rights.
To address this specific issue as it relates to the proposed core area rezoning from
RG-1 (multi-family) to RS-1 (single-family), I have proposed the addition of Section
24-83(e). The exact language can be varied if needed, but in summary, this section
provides that where a duplex or townhouse has been constructed with properly
issued building permits, that existing residential use shall not be made non-
conforming by the change in zoning, and may be fully replaced within its existing
building footprint and in compliance with other requirements such as Standard
Building Code requirements related to firewall separation. In other words, this
1111 section automatically deems that those currently existing townhouses and duplexes
can be rebuilt as they now exist, even in the event they are fully destroyed,
regardless of the change in zoning to RS-1.
Other changes.....
I have also provided proposed language in Section 24-86 establishing clear standards for
Townhouse construction. The recommendations came primarily from the June
workshop, but paragraph (a) is a new provision, which provides a required Lot Area
standard consistent with the density limitations of the Comprehensive Plan. (Townhouse
will be added to the Multi-family Zoning Districts as a Permitted Use, subject to
compliance with the Townhouse Design and Construction Standards.)
Finally, at the July 17th meeting of the Community Development Board, concern was
expressed at how provisions related to Obstructions into required Yards had been
interpreted in the past. Because side yards can be as narrow as five feet in most
residential districts, it is my recommendation that "ordinary projections" should not be
allowed to extend into side yards. This would prohibit cantilevered bay windows,
chimneys or ornamental features from extending into a side yard. I have also added a
provision to allow for structures less than 24 inches in height to be allowed in required
Yards. This height may be established at any height the CD Board and City Commission
determine appropriate, but it provides for elements such as yard ornaments and
decorations, and similar features typically considered appropriate to be located within
required yards.
IIIPlease feel free to call me at 247-5817 with any questions, comments or suggestions. I
welcome your input.
4
EXHIBIT B
MINUTES - AUGUST 6, 2001
•
Sec. 24-83. Nonconforming Lots, Uses and Structures
(a) Intent. Within the established Zoning Distrix there exist Lots, Structures
and Uses of Land that were lawful prior to the adoption of these Land Development
Regulations. Such Lots, Uses and Structures would be prohibited, restricted or regulated
through the provisions of this Chapter or the adopted Comprehensive Plan. It is the intent
of this Section to recognize__the legal__rij hts entitled to property owners of existing
Nonconforming Lots, Uses and Structures, and to permit such non-conformities to
continue in accordance with such rights, but not to otherwise encourage their continued
survival. Furthermore, the presence of any nonconforming characteristic shall not be
considered as justification for the granting of Variances and an. Nonconformin:
Structure or Use which is made conforming shall _not be permitted to revert to any
Nonconforming Structure or Use.
(b) Nonconforming Lots of Record.
(1) Where a Lot or parcel of Land has a Lot Area or frontage that does not
conform with the requirements of the Zoning District in which it is located, but
• was a legally established and documented Lot of Record prior to the adoption of
this Code or previous Codes_and applicable City of Atlantic Beach ordinances,
such Lot or parcel of Land may be used for one Single-family Dwelling in any
residential Zoning District, provided the minimum Yard requirements for that
residential Zoning District are maintained, or provided that the owner of said Lot
has obtained Variance from the Community Development Board, in accordance
with the requirements of Section 24-64 of this Chapter.
(2) _ In any residential Zoning District, on a legally established and
documented Nonconforming Lot of Record. which_existed prior to the_adoption of
this Code. a Structure may be expanded or enlarged provided such expansion or
enlargement complies with other provisions of this Chapter, including Yard
Requirements.
(3) No Single-family, Townhouse, Two-family or Multi-family Structure
shall be allowed in a Single-family Residential Lot or a combination of such Lots
unless the total Lot Area proposed for Develo.ment complies with the re_ lations
as set forth in this Chapter and with the density limitations as set forth in the
Comprehensive Plan, unless otherwise exempted in preceding paragraph(1).
(4) After the adoption of these Land Development Regulations, no Lot or
parcel in any Zoning District shall be divided to create a Lot with area or width
below the requirements of this Chapter or the Comprehensive Plan.
"New"Draft Nonconforming Provisions July 31, 2001
1
(c) Nonconforming Structures
(1) No Nonconforming Structure shall be expanded or enlarged to
occupy greater Lot Coverage than occupied at the time of adoption of these
regulations unless such expansion or enlargement complies with other provisions
of this Chapter, including Yard Requirements, or unless a Variance has been
obtained from the Community Development Board, in accordance with the
requirements of Section 24-64 of this Chapter.
(2) In the event that more than fifty (50) percent of the value of a
Nonconforming Structure is destroyed or damaged by any means, the Structure
shall not shall be reconstructed except in compliance with the provisions of this
Chanter, or alternatively, in compliance with the.._terms of a Variance granted by
the Community Development Board in accordance with the requirements of
Section 24-64 of this Chapter. In determining the value of a Nonconforming
Structure, either the Assessed Value or the Appraised Value may be considered,
subject to approval of the Building Official.
(3) Any Structure, or portion thereof, declared unsafe may be restored
to a safe condition. Buildin_ Permits shall be required.
• (4) A Nonconforming Structure may be maintained, and repairs and
alterations may be made, except that no structural alterations shall be made except
those as required by law, including eminent domain proceedings. Repairs, such as
plumbine_or...._changing..._of partitions..._or other alterations, are permitted. Permits
shall be required.
(5) No additional Structure not conforming to the requirements of this
Chapter shall be erected in connection with the Nonconforming Use of Land.
(6) Any existing Nonconforming Structure that is encroaching on the
Street Right-of-Way shall not be rebuilt, enlarged, remodeled or structurally
altered unless such encroachment is removed from..the...street rights-of-way.
(d) Nonconforming Uses
(1) Continuation of Nonconforming Uses. Uses of Land which were
lawfully created at the time such Uses were established, but which would not be
permitted by the restrictions imposed by these Land Develo•anent Re:ulations or
by restrictions imposed by theComprehensive Plan, may be continued so long as
they remain otherwise lawful and in compliance with the provisions of this
Section.
41-
"New"Draft Nonconforming Provisions July 31, 2001
2
2 Relocat' n o nco ormin . N N nc nformin se shall
be moved in whole or in part to any other portion of the Lot or parcel on which.
such Nonconforming Use is located.
(3) Discontinuance of Notconforming Uses. In the event that a
Nonconforming Use of Land is discontinued or abandoned for a period of six (6)
months or longer, any subsequent Use of such Land shall conform to the
applicable Zoning_District re lations as set forth in this Cha•ter as well as
provisions of the Comprehensive Plan.
(4) In the event that more than fifty (50) percent of the value of a
Nonconforming Structure, which is occupied by_a Nonconforming Use, is
destroyed, the Structure shall not be reoccupied by..._any Noncofonning Use and
shall be reconstructed only in compliance with the provisions of this Chapter. In
determining the value of a Nonconforming Structure, either the Assessed Value or
the Appraised Value may be considered subject to approval of the Building
Official.
(e) Special Treatment of Existing Residential Uses Affected by
Administrative Actions and Administrative Rezoning of Land
• In the case where a characteristic of a lawfully existing residential Use of
property is__ made Nonconformin: throu: a chan:e in Zonin_ District
designation,_...or other_administrative... action by the City_ Commission, such
previously existing Use may be determined to be vested in accordance with vested
rights as recognized by Florida law. Furthermore, any such residence and
Accessory Use which has been constructed pursuant to properly issued Building
Permits prior to the adoption of these regulations shall for that particular Use and
Structure(s) not be considered a Nonconforming Use or Structure to the extent
that it may be replaceable within its existing building footprint. In the event that
such Use or Structure must be reconstructed, reconstruction shall otherwise be in
compliance.._with all applicable Standard Building Code requirements as well as
other State, Federal or local regulations.
Sec. 24-84. Yards, obstructions and double frontage lots.
(a) Obstructions. Unless otherwise specified in this Chapter, every part of a
required Yard shall be open and unobstructed from the Finished Grade feint to
............. ..... .
the sky, unebstfusted, except for Structures that do not exceed twenty-four (24) inches in
height. - . . - - - . ' , -- • - , - -•- , . -
•
•
.. - - . -. . - , - , - .. . -. - . , . . -• . . -. - • _ • - =-
.. .
4 ! . • . . . • . - -- .' . .. . . . . " -- , - -
-
"New"Draft Nonconforming Provisions July 31, 2001
3
• (b) Double frontage lots. On double frontage lots, the Required Front Yard shall
be provided on each Street, except the Required Front Yard on double frontage lots
between Beach Avenue and the Atlantic Ocean shall be the Yard which faces the Atlantic
Ocean, and the front Yard on double frontage lots between Beach Avenue and Ocean
Boulevard shall be the Yard which faces Ocean Boulevard.
Sec. 24-856. Secondary dwellings.
(a) In any residential Zoning District, where a lot has a width of fifty (50) feet or
more and extends from Street to Street, a single Secondary Dwelling Unit, which may be
combined with a Private Garage may be constructed in the rear of the Principal Dwelling;
provided that the Secondary Dwelling shall not be more than twenty-five (25) feet high,
and shall not exceed seventy-five (75) percent of the heated and cooled area of the
Principal Dwelling. Further, there shall be a minimum separation of twenty (20) feet
between the Principal and Secondary dwelling, and the Yard requirements applying to the
Principal Dwelling shall also apply to the Secondary Dwelling. Secondary dwellings
shall be separately subject to all Use restrictions of the applicable residential Zoning
District unless otherwise provided above.
(b) Any existing Secondary Dwelling or Accessory Structure that is encroaching
• on the Street Right-of-Way shall not be rebuilt, enlarged, remodeled or structurally
altered unless such encroachment is removed from the Street Right-of-Way.
Sec. 24-86. Design and Construction Standards for Two-family Dwelling Units and
Townhouse Units
(a)_Two-family Dwellings and Townhouses shall only_be allowed where Lot Area
is in compliance with the Density limitations as set forth in the Comprehensive Plan.
Within areas desi nated b the .m.reh-n ive Plan for M-dium Densit r- idential
Development, a minimum Lot Area of 3200 square feet for each Dwelling Unit shall be
required. Within areas desi i ated b the Com.rehensive Plan for Low Density
residential Development a minimum Lot Area of 7300 square feet for each Dwelling
Unit shall be required.
(b) Two-famil and Townhouse Dwellin: Units shall be se.arated b a firewall
which shall meet the Standard Building_C'ode firewall separation requirements for Multi-
family construction.
(c) Dwellin Units se.arated b a breezewa or similarie connection,_shall be
not be considered as Two-family Dwellings or Townhouses, and shall be required tomeet
regulations applicable to Single-family Use.
(d) Adjoining Two-family or Townhouse Dwellings Units shall be constructed of
substantially the same architectural style,colors and material&
"New"Draft Nonconforming Provisions July 31, 2001
4
• (e) Adjoining Two-family Dwellings or Townhouse..units shall be constructed at
substantially the same time or in a continuous sequence unless an existing tructure is
being renovated in the same building footprint.
•
•
"New"Draft Nonconforming Provisions July 31, 2001
5