The Non-Conformity Conundrum

Transcription

1 The Non-Conformity Conundrum Alan Rappleyea, Esq., AICP, Washington County Counsel Joe Turner, Esq., AICP, Hearings Officer Phil Grillo, Esq., Davis Wright Tremaine Cathy Corliss, AICP, Angelo Planning Group, session moderator

2 Non-Conforming Situations Uses and Development Lawfully existed prior to the enactment of the regulation Do not comply with the use / development regulations applicable to the area The nature and extent of the use / development that existed at the time it became non-conforming may be maintained

3 Impacts of Non-Conformity Intent: Ease impact of new regulations on existing development while accomplishing policy objectives Problems: Creating non-conforming uses / development can lead to: Community resistance / backlash against adoption or implementation of standards Limitations to property owner financing options Relative disadvantages in locations with more progressive design standards Disinvestment and blight

4 Changing Paradigm Non-conforming uses generated by Euclidean zoning Emphasis was on use, not development Underlying assumption for non-conforming use: The use should eventually go away and expansion should be very limited Contemporary codes tend to emphasize design with less focus on use Highly prescriptive standards result in more nonconforming development Underlying assumption for non-conforming development: try to achieve conformance, don t make development go away

5 Common Code Solutions Apply new standards to new development only Allow greater % of modification Triggers can be SF or % of project cost Cap cost to achieve compliance (e.g., 10% of total project cost) Move toward greater conformity Can create value in the existing undesirable development pattern Can lead to avoidance strategies (e.g., incremental improvements), plus tracking problems Can force unwanted investment in property that will redevelop, or may stifle redevelopment Difficult to evaluate when multiple non-conforming elements; may require discretionary review

6 Counties ORS (5) A lawful use at the time of enactment of a zoning regulation may continue. Alteration of the use shall be permitted when necessary to comply with law or to maintain a structure (6) Restoration or replacement is allowed when made necessary by fire or other casualty, restoration must be commenced within one year (7) Can t resume use after period of interruption or abandonment (b) Surface Mining exemption- 12 years (8) A verification or alteration of a NCU is subject to the permit requirements of ORS notice. Additionally, decisions on alterations of NCU s are administrative decisions, no hearing (9) Alterations of use and structure are allowed if no greater impact to the neighborhood (10) County process to verify use: proof of existence, continuity, nature and extent for a period of 10 years before application creates rebuttable presumption that the use was lawful (11) Can t require applicant to verify past 20 years (but can require that the use was lawfully established)

7 Cities Cities NOT subject to ORS Mosier v. Hood River Sand, Gravel, 206 Or. App. 292, 136 P.3d 1160 (Or. App., 2006) Cities Are not subject to the 10 and 20 year look back limitations Cities can distinguish between nonconforming uses and development Can review NCUs as Type II or Type III City interpretations entitled to deference on appeal

8 Vesting Grandfather rights generally Vested rights vs. nonconforming use rights Why vesting matters Types of Vested Rights in Oregon Common Law Vested Rights (Clackamas County v. Holmes, 265 Or 193, 503 P2d 190 (1973), 11 Or App 1, 501 P2d 333 (1972)); see also Friends of Yamhill County v. Yamhill County, SC S058915, decided Oct. 20, Statutory Vesting

9 Lawful Establishment Scenario 1: An existing dairy is annexed into the city. The dairy was a permitted use in the county, but is non-conforming under the new city zoning. The business owner has been remiss in obtaining a required DEQ waste water permit. Did this use lawfully exist prior to the enactment of the regulation? Does it matter if the DEQ regulations are unrelated to zoning and land use controls if the jurisdiction s code expressly requires compliance with other nonzoning related regulations? How might this apply to a non-conforming development rather than use (e.g., ODOT access permit)?

10 Nature and Extent Scenario 2: A nonconforming personal use airport (a grass strip) is only used for one 4-hour flight per year. The owner hasn t flown at all in the last year due to illness, but upon recovering, begins using the airstrip monthly. The county s regulations say that a legal non-conforming use may not be discontinued for more than one year. How should sporadic or intermittent uses be considered? Can the owner use the airstrip more frequently? Does it matter if the discontinuation wasn t the property owners fault? Does it matter whether the code says abandons vs. discontinues the use?

11 Public Impacts Scenario 3: A large scale public works project will cause a nonconforming commercial use in a residential area to also become non-conforming with respect to parking lot landscaping and screening requirements. How do most cities and counties address this issue? Does it matter that the use is non-conforming? Does it matter that the changes aren t of the property owner s making? Are there any code amendments that might address the situation?

12 Proportionality and Timing Scenario 4: An existing shopping center is non-conforming with regard to adjacent street improvements (as are the rest of the parcels abutting the street). There are five buildings in the center, but only one is proposed to be redeveloped. This will result in a net decrease in SF, but the value of the improvements triggers full compliance with the development code. Since the redevelopment isn t increasing trips, how does rough proportionality affect the requirement for street improvements? Since the neighboring properties aren t in compliance, are there solutions to address the timing problem (e.g., nonremonstrance agreement)?

13 The Non-Conformity Conundrum Audience questions, answers and ideas Thank You!