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23-94 ORDINANCE NO. 23-94 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING SECTION 2.4.5, "PROCEDURES FOR OBTAINING DEVELOPMENT APPROVALS", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY ENACTING A NEW SUBSECTION (M), "ESTABLISHMENT OF A SPECIAL USE"; AMENDING SECTION 2.4.2(B) (1) (e) TO PROVIDE NOTICE REQUIREMENTS FOR SPECIAL USES; AMENDING SECTION 2.4.3(K) (1) (i) TO PROVIDE FEES FOR SPECIAL USE APPLICATIONS; AMENDING ARTICLE 1.3, "NONCONFORMING USES, LOTS, AND STRUCTURES" SECTION , 1.3.1, "PURPOSE", TO PROVIDE FOR EXCEPTIONS ESTABLISHED BY THE ENACTMENT OF SECTION 2.4.5(M); PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the subject matter at its meeting of April 18, 1994, and has forwarded the change with a recommendation of approval; and WHEREAS, pursuant to Florida Statute 163.3174(4) (c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with, and furthers the objectives and policies of, the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.5, "Procedures for Obtaining Development Approvals", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended by enacting a new subsection (M), "Establishment of a Special Use", to read as follows: (M) Establishment of a Special Use: (1) Rule: Pursuant to the requirements of this section, a new nonconforming use of a lesser intensity may be established within: (a) a structure which is currently occupied by a nonconforming use, or (b) a structure which was previously occupied by a nonconforming use that has not been discontinued or abandoned for a continuous period of 180 days. FAILED ON SECOND/FINAL READING - 5/3/94 FAILED ON SECOND/FINAL READING - 5/3/94 Uses established pursuant to this section are considered "special uses" Once a special use approval has been granted~ future uses of the property shall be of no greater intensity than the special use. (2) Required Information: The applicant shall provide standard application items pursuant to Section 2.4.3(A). In addition, if establishment of the special use requires improvements to a site or substantial changes to existing improvements, the applicant shall provide a sketch plan showing the extent of those improvements. At its discretion~ the Planning and Zoning Board may require submission of a site plan prepared pursuant to Section 2.4.3(B). At the applicant's discretion, a simultaneous site plan application and special use application may be filed. (3) Procedure: A special use request shall be processed through the following sequence: (a) Receipt and certification as complete. (b) Consideration at a public hearing before the Planning and Zoning Board. (c) Action by motion of the Planning and Zoning Board to either approve, a~prove subject to conditions, or deny. A concurring vote of five (5) members shall be necessary to decide in favor of an applicant with respect to a special use approval. (d) Issuance of a final written order specifying the Board's action and conditions, if any. The authority to permit the establishment of a special use rests with the Planning and Zoning Board. ApDeals of the Planning and Zoning Board's decision shall be by writ of certiorari to the Circuit Court filed no later than thirty (30) days after the issuance of the Board's written final order. (4) Conditions: Conditions may be imposed pursuant to Section 2.4.4(C). In addition, the Board may impose additional conditions on the operation of the use which the Board deems necessary to mitigate potential adverse impacts on adjacent properties and uses, and to bring the site into compliance with the City's Land Development Regulations, fire and safety codes, and environmental ordinances. - 2 - Ord. No. 23-94 FAILED ON SECOND/FINAL READING - 5/3/94 FAILED ON SECOND/FINAL READING - 5/3/94 (5) Findings: In addition to the provisions of Chapter Three, the Planning and Zoning Board shall make the following findings prior to approving the special use: (a) That the use is appropriate for the subject site based upon the particular location~ design, and/or orientation of the building that is to be occupied; (b) That the special use is less intense than the most recent use which occupied the premises. In determining whether or not a use is less intense, the following factors shall be considered: traffic, noise, odor, hours of operations, parking requirements, and drainage; (c) That the use will not have a significantly detrimental effect upon the stability of the neighborhood within which it is located, and; (d) That the use will not hinder development or redevelopment of nearby properties. (6) Transfer of Special Use Approval: Approval of a special use is not transferable. When a business which possesses a special use permit vacates the premises~ future occupants shall apply for a special use permit, even if the use is the same as indicated on the previous occupant's special use permit. (7) Abandonment: A special use must be established within 180 days of the date of discontinuance by the previous occupant. When a special use is discontinued or abandoned for a continuous period of 180 days, every subsequent use shall be in conformity with the requirements for the zoning district in which it is located. (8) Modification: Modifications to an approved special use must be approved by the Planning and Zoning Board. If the Board finds that the requested modification is significant, then the modification must be heard as a new special use application. Any request for a modification may be denied. - 3 - Ord. No. 23-94 FAILED ON SECOND/FINAL READING - 5/3/94 FAILED ON SECOND/FINAL READING - 5/3/94 Section 2. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.2, "Notice Requirements", Subsection 2.4.2(B)(1) (e), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: (e) Conditional Uses and Special Uses: Notice shall be provided in the same manner as in Section 2.4.2(B) (1) (b). In addition, a public notice shall be published in the legal section of a newspaper and shall appear at least ten (10) days prior to the hearing before the Planning and Zoning Board. Section 3. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.3, "Submission Requirements", Subsection 2.4.3(K), "Fees", Sub-subsection 2.4.3(K) (1) (i), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: (i) ~ Special Uses, New application $ 500 Special Uses, Modification $ 200 Section 4. That Chapter One, "General Provisions", Article 1.3, "Nonconforming Uses, Lots, and Structures", Section 1.3.1, "Purpose", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 1.3.1 Purpose: (A) Within the zoning districts established by Chapter Four, there exist lots, structures, uses of land and structures, and characteristics of use, which were lawful before the passage of said Chapter Four but are now prohibited, regulated, or restricted. It is the intent to allow such nonconformities to continue until they are removed, but not to encourage their continuation. Nonconformities shall not be enlarged upon, expanded, extended, or used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district~, except as provided in Section 2.4.5(M). - 4 - Ord. No. 23-94 FAILED ON SECOND/FINAL READING - 5/3/94 FAILED ON SECOND/FINAL READING - 5/3/94 (B) Nonconforming uses are declared to be incompatible with uses allowed in the zoning districts involved. A nonconforming use of a structure, land, or structure and land in combination, shall not be extended or enlarged, either by erecting additional signs, adding additional square footage to a structure, or adding other uses of a nature which would be prohibited in the zoning district involved~, except as provided in Section 2.4.5(M). (C) To avoid undue hardship, nothing herein shall require a change in the plans, construction, or designated use of any building on which actual construction has been carried on diligently. Actual construction shall include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition, excavation, or removal of an existing building has been substantially started preparatory to rebuilding, such demolition, excavation, or removal shall be considered actual construction, provided the work is carried on diligently, and the development becomes established pursuant to 2.4.4(C) . Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 7. That this ordinance shall become effective immediately upon passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 1994. MAYOR ATTEST: City Clerk First Reading April 19, 1994 Second Reading - 5 - Ord. No. 23-94 FAILED ON SECOND/FINAL READING - 5/3/94 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER . SUBJECT: AGENDA ITEM # /0E - MEETING OF MAY 3, 1994 SECOND READING/PUBLIC HEARING FOR ORDINANCE NO. 23-94 AMENDING THE LDR'S BY ESTABLISHING "SPECIAL USE" PROCESS DATE: APRIL 28, 1994 This is second reading and public hearing for Ordinance No. 23-94 which amends the Land Development Regulations by creating a "Special Use" process to provide for the replacement of nonconforming uses with less intense uses. The attached staff report provides additional background and description regarding the changes. The Planning and Zoning Board formally reviewed this item on April 18, 1994, and forwarded it to the Commission with a recommendation of approval. The Commission considered it on first reading at the April 19th regular meeting. After discussion, it was the consensus of the Commission to amend the text of the ordinance by moving the last sentence of subparagraph (6), "Transfer of Special Use Approval", to be the first sentence of subparagraph (7), "Abandonment". Ordinance No. 23-94 was passed, as amended, on first reading by a 3 to 2 vote (Mr. Randolph and Dr. Alperin dissenting). The change noted above has been incorporated into the ordinance before the Commission on second and final reading. Recommend consideration of Ordinance No. 23-94 on second and final reading. ref:agmemol0 ORDINANCE NO. 23-94 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING SECTION 2.4.5, "PROCEDURES FOR OBTAINING DEVELOPMENT APPROVALS" OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY ENACTING A NEW SUBSECTION (M), "ESTABLISHMENT OF A SPECIAL USE"; AMENDING SECTION 2.4.2(B) (1) (e) TO PROVIDE NOTICE REQUIREMENTS FOR SPECIAL USES; AMENDING SECTION 2.4.3(K) (1) (i) TO PROVIDE FEES FOR SPECIAL USE APPLICATIONS; AMENDING ARTICLE 1.3, "NONCONFORMING USES, LOTS, AND STRUCTURES", SECTION 1.o3 1, "PURPOSE" , TO PROVIDE FOR EXCEPTIONS ESTABLISHED BY THE ENACTMENT OF SECTION 2.4.5(M); PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the subject matter at its meeting of April 18, 1994, and has forwarded the change with a recommendation of approval; and WHEREAS, pursuant to Florida Statute 163.3174(4) (c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the 'change is consistent with, and furthers the objectives and policies of, the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures" , Section 2.4.5, "Procedures for Obtaining Development Approvals", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended by enacting a new subsection (M), "Establishment of a Special Use", to read as follows: (M) Establishment of a Special Use: (1) Rule: Pursuant to the requirements of this section~ a new nonconforming use of a lesser intensity may be established within: (a) a structure which is' currently occupied by a nonconformin~ use~ or (b) a structure which was previously occupied by a nonconforming use that has not been discontinued or abandoned for a continuous period of 180 days. Uses established pursuant to this section are considered "special uses". Once a special use approval has been granted, future uses of the property shall be of no greater intensity than the special use. (2) Required Information: The applicant shall provide standard application items pursuant to Section 2.4.3(A). In addition, if establishment of the special use requires improvements to a site or substantial changes to existing improvements, the applicant shall provide a sketch plan showing the extent of those improvements. At its discretion~ the Planning and Zoning Board may require submission of a site plan prepared pursuant to Section 2.4.3(B). At the applicant's discretion~ a simultaneous site plan application and special use application may be filed. (3) Procedure: A special use request shall be processed through the following sequence: (a) Receipt and certification as complete. (b) Consideration at a public hearing before the Planning and Zoning Board. (c) Action by motion of the Planning and Zoning Board to either approve, approve subject to conditions~ or deny. A concurring vote of five (5) members shall be necessary to decide in favor of an applicant with respect to a special use approval. (d) Issuance of a final written order specifying the Board's action and conditions~ if any. The authority to permit the establishment of a special use rests with the Planning and Zoning Board. Appeals of the Planning and Zoning Board's decision shall be by writ of certiorari to the Circuit Court filed no later than thirty (30) days after the issuance of the Board's written final order. (4) Conditions: Conditions may be imposed pursuant to Section 2.4.4(C). In addition~ the Board may impose additional conditions on the operation of the use which the Board deems necessary to mitigate potential adverse impacts on adjacent properties and uses~ and to bring the site into compliance with the City's Land Development Re~ulations~ fire and safety codesr and environmental ordinances. - 2 - Ord. No. 23-94 (5) Findings: In addition to the provisions of Chapter Three, the Planning and Zoning Board shall make the following findings prior to approving the special use: (a) That the use is appropriate for the subject site based upon the particular location~ design, and/or orientation of the building that is to be occupied; (b) That the special use is less intense than the most recent use which occupied the premises. In determining whether or not a use is less intense~ the following factors shall be considered: traffic~ noise, odor~ hours of operations~ parking requirements, and drainage; (c) That the use will not have a significantly detrimental effect upon the stability of the neighborhood within which it is located~ and; (d) That the use will not hinder development or redevelopment of nearby properties. (6) Transfer of Special Use Approval: Approval of a special use is not transferable. When a business which possesses a special use permit vacates the premises~ future occupants shall apply for a special use permit, even if the use is the same as indicated on the previous occupant's special use permit. (7) Abandonment: A special use must be established within 180 days of the date of discontinuance by the previous occupant. When a special use is discontinued or abandoned for a continuous period of 180 days~ every subsequent use shall be in conformity with the requirements for the zoning district in which it is located. (8) Modification: Modifications to an approved special use must be apDroved by the Planning and Zoning Board. If the Board finds that the requested modification is si~nificant~ then the modification must be heard as a new special use application. Any request for a modification may be denied. - 3 - Ord. No. 23-94 Section 2. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.2, "Notice Requirements", Subsection 2.4.2(B) (1) (e), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: (e) Conditional Uses and Special Uses: Notice shall be provided in the same manner as in Section 2.4.2(B) (1) (b). In addition, a public notice shall be published in the legal section of a newspaper and shall appear at least ten (10) days prior to the hearing before the Planning and Zoning Board. Section 3. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2 .4.3, "Submission Requirements", Subsection 2.4 .3 (K) , "Fees" , Sub-subsection 2.4.3(K) (1) (i), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: ( i ) Special Uses, New application $ 500 Special Uses~ Modification $ 200 Section 4. That Chapter One, "General Provisions", Article 1.3, "Nonconforming Uses, Lots, and Structures" , Section 1 .3 .1, "Purpose", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 1.3.1 Purpose: (A) Within the zoning districts established by Chapter Four, there exist lots, structures, uses of land and structures, and characteristics of use, which were lawful before the passage of said Chapter Four but are now prohibited, regulated, or restricted. It is the intent to allow such nonconformities to continue until they are removed, but not to encourage their continuation. Nonconformities shall not be enlarged upon, expanded, extended, or used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district~, except as provided in Section 2.4.5(M). - 4 - Ord. No. 23-94 (B) Nonconforming uses are declared to be incompatible with uses allowed in the zoning districts involved. A nonconforming use of a structure, land, or structure and land in combination, shall not be extended or enlarged, either by erecting additional signs, adding additional square footage to a structure, or adding other uses of a nature which would be prohibited in the zoning district involved~, except as provided in Section 2.4.5(M). (C) To avoid undue hardship, nothing herein shall require a change in the plans, construction, or designated use of any building on which actual construction has been carried on diligently. Actual construction shall include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition, excavation, or removal of an existing building has been substantially started preparatory to rebuilding, such demolition, excavation, or removal shall be considered actual construction, provided the work is carried on diligently, and the development becomes established pursuant to 2.4.4(C). Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 7. That this ordinance shall become effective immediately upon passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 1994. MAYOR ATTEST: City Clerk First Reading Second Reading - 5 - Ord. No. 23-94 CITY COMM I S S I ON DOCUMENTAT I ON TO: DAVID T. HARDEN, CI~MANAGE~ FROM: DIANE DOMINGUEZ, ~t~ ~ .~ ~ \ X \~ ~. ~ ~ ,1 J ~ DIRECTOR OF PLANNINGq~ING~ %% " SUBJECT: MEETING OF APRIL 19, 1994 ACTION REQUESTED OF THE CO~ISSION: The action requested of the City Co~ission is that of approval of text amendments related to nonconforming uses. BACKGROUND: These amendments are a result of work done by the Planning and Zoning Board subco~ittee on nonconforming uses. The amen~ents provide for the establishment of a special use process, which will allow nonconforming uses to be replaced by those that are less intense, after review and approval by the Planning and Zoning Board. A draft ordinance was presented to the City Co~ission at its workshop meeting of March 15, 1994. The Co~ission suggested the addition of restrictions which would prevent the automatic transfer of a special use approval from one business to another. That language has been added to the revised ordinance. The attached Planning and Zoning Board staff report provides additional background and description regarding the changes. PLANNING AND ZONING BOARD CONSIDE~TION: The subco~ittee presented its report and the draft ordinance to the full Planning and Zoning Board at its workshop meeting of February 14, 1994. The Board reco~ended minor changes to the ordinance, which were made prior to its presentation at the City Co~ission workshop in March. The P & Z Board will formally review the amendments at the meeting of April 18, 1994. The Board's reco~endation will be fo~arded to the City Co~ission during its consideration of the amendments. RECOMMEND ED ACTION: By motion, approve the attached amendments creating LDR Section 2.4.5(M): Establishment of a Special Use; modifying Section 2.4.3(K)(1)(i) to provide a fee for a special use application; modifying Section 2.4.2(B)(1)(e) to establish notification requirements for special uses; modifying Section 1.3.1(A) and (B) to provide a reference to the special use process; and modifying Section 1.3.6 to increase the maximum amount that can be expended on repairs to nonconforming structures/uses from 10% to 25%. Attachments: * P&Z Staff Report & Documentation of April 18, 1994 * Ordinance by others PLANNING AND ZONING BOARD MEMORANDUM STAFF REPORT MEETING OF: APRIL 18, 1994 AGENDA ITEM: V.E. LDR AMENDMENT RE: NONCONFORMING USES ITEM BEFORE THE BOARD: The item before the Board is that of making a recommendation to the City Commission on a proposed amendment to the Land Development Regulations regarding nonconforming uses. The amendment creates a "Special Use" process which allows for the replacement of nonconforming uses with less intense uses. BACKGROUND: Several months ago, the City Commission directed the Planning and Zoning Board to study the City's policies regarding nonconforming uses and structures. There were two aspects of the issue that the Commission wanted the Board to address: 1) the continuation and/or replacement of nonconforming commercial uses, and 2) the rebuilding of nonconforming structures (especially high density residential buildings) in a post-disaster situation. The Planning and Zoning Board established a subcommittee to look into these issues in detail. Staff prepared inventories of nonconforming uses and structures throughout the City (including nonresidential uses citywide, and residential uses east of Federal Highway), in order to assess the extent of the properties that are affected by the existing limitations on nonconforming uses and structures. After studying the issue for several months, the subcommittee prepared a report and recommendations for review by the full Planning and Zoning Board at its meeting of February 14, 1994. The Board endorsed the committee's recommendations with minor changes, and presented the item to the City Commission at the workshop meeting of March 15, 1994. The consensus of the Commission was that the recommendations regarding the continuation and replacement of nonconforming uses should be brought back as a text amendment, with certain restrictions added to the language. The Commission also supported the Board's recommendations regarding the reconstruction of nonconforming residential structures in a post-disaster situation, but recommended additional study as to the application of that policy to commercial structures and uses. P & Z Memorandum Staff Report LDR Amendment Re: Nonconforming Uses Page 2 ANALYSIS: The attached ordinance relates to the first issue only: the replacement of nonconforming uses through the "special use" process. It implements the following changes: 1) Adds a new section, 2.4.5(M) to the LDRs, which establishes the special use process; 2) Amends section 2.4.3 (K)(1)(i) to provide a fee for a special use application; 3) Amends section 2.4.2(B)(1)(e) to establish notification requirements for special uses; 4) Amends Article 1.3 , Nonconforming Uses, Lots, and Structures to provide language which refers to the special use process; and 5) Amends section 1.3.6, Repairs and Maintenance, to increase the maximum amount to be expended on repairs to nonconforming structures from 10% to 25%. The amendment establishes a process that will allow for the replacement of an existing nonconforming use with another less intense nonconforming use. Uses permitted in this manner are called "special uses," to be allowed only under limited circumstances. A special use request would be reviewed through a process that is similar to that of a conditional use request, with notification of adjacent property owners and a public hearing before the Planning and Zoning Board. A concurring vote of at least five (5) Board members would be necessary to approve the use. The Board's action on special use applications would be final; any appeals would be made to the Circuit Court. The ordinance provides that in order for a special use to be approved, the Board would have to make a specific finding that it is less intense than the use which currently occupies the premises, in terms of traffic, noise, hours of operation, etc. Specific findings are also required as to the appropriateness of the use at the proposed location, and its potential impacts on adjacent uses. The Board could impose conditions on the approval, and could require that the site be upgraded to present standards. As requested by the City Commission, language has been added to the original draft of the ordinance to place certain limits on the continuation of special uses. Special uses approvals are not transferable from one business to another, even if the uses are the same. A special use which is discontinued by one operator may not be reestablished by another without first going through the special use application process again. P & Z Memorandum Staff Report LDR Amendment Re: Nonconforming Uses Page 3 RECOMMENDED ACTION: By motion, recommend to the City Commission approval of the attached amendments to the following LDR sections: 1) Section 2.4.5(M), addition to the LDRs which establishes the special use process; 2) Section 2.4.3 (K)(1)(i) to provide a fee for a special use application; 3) Section 2.4.2(B)(1)(e) to establish notification requirements for special uses; 4) Section 1.3.1(A) and (B) to provide language which refers to the special use process; and 5) Section 1.3.6, to increase the maximum amount to be expended on repairs to nonconforming structures from 10% to 25%. Attachments: * Proposed text amendments as listed above DD\T:PZNCRPT.DOC MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~"t SUBJECT: AGENDA ITEM # /~ ~ - MEETING OF APRIL 19, 1994 FIRST READING/ORDINANCE NO. 23-94 AMENDING THE LDR'S BY ESTABLISHING "SPECIAL USE" RELATING TO NONCONFORMING USES DATE: APRIL 15, 1994 Ordinance No. 23-94 amends the Land Development Regulations by creating a "Special Use" process which allows for the replacement of nonconforming uses with less intense uses. This amendment was reviewed in draft form by the City Commission at the workshop meeting of March 15, 1994. Additional restrictions suggested by the Commission at that time have been incorporated into the ordinance proposed for adoption. The attached staff report provides additional background and description regarding the changes. The Planning and Zoning Board will formally review the amendments at the meeting of April 18, 1994. The Board's recommendation will be provided to the Commission at the April 19th meeting. Recommend consideration of Ordinance No. 23-94 on first reading. If passed, public hearing will be held on May 3, 1994. ref:agmemol0 PROPOSED AMENDMENT TO LDR SECTION 2.4.5, PROCEDURES FOR OBTAINING DEVELOPMENT APPROVAL8 2.4.5 (M) Establishment of a Special Use (1) Rule: Pursuant to the requirements of this section, a new nonconforming use of a lesser intensity may be established within: (a) a structure which is currently occupied by a nonconforming use, or (b) a structure which was previously occupied by a nonconforming use that has not been discontinued or abandoned for a continuous period of 180 days. Uses established pursuant to this section are considered "special uses." Once a special use approval has been granted, future uses of the property shall be of no greater intensity than the special use. (2) Required Information: The applicant shall provide standard application items pursuant to 2.4.3(A). In addition, if establishment of the special use requires improvements to a site or substantial changes to existing improvements, the applicant shall provide a sketch plan showing the extent of those improvements. At its discretion, the Planning and Zoning Board may require submission of a site plan prepared pursuant to 2.4.3(B). At the applicant's discretion, a simultaneous site plan application and special use application may be filed. (3) Procedure: A special use request shall be processed through the following sequence: (a) Receipt and certification as complete; (b) Consideration at a public hearing before the Planning and Zoning Board. (c) Action by motion of the Planning and Zoning Board to either approve, approve subject to conditions, or deny. A concurring vote of five (5) members shall be necessary to decide in favor of an applicant with respect to a special use approval. (d) Issuance of a final written order specifying the Board's action and conditions, if any. The authority to permit the establishment of a special use rests with the Planning and Zoning Board. Appeals of the Planning and Zoning Board's decision shall be by writ of certiorari to the Circuit Court filed no later than thirty (30) days after the issuance of the Board's written final order. (4) Conditions: Conditions may be imposed pursuant to Section 2.4.4(C). In addition, the Board may impose additional conditions on the operation of the use which the Board deems necessary to mitigate potential adverse impacts on adjacent properties and uses, and to bring the site into compliance with the City's Land Development Regulations, fire and safety codes, and environmental ordinances. (5) Findinqs: In addition to the provisions of Chapter Three, the Planning and Zoning Board shall make the following findings prior to approving the special use: a) That the use is appropriate for the subject site based upon the particular location, design, and/or orientation of the building that is to be occupied; b) That the special use is less intense than the most recent use which occupied the premises. In determining whether or not a use is less intense, the following factors shall be considered: traffic, noise, odor, hours of operations, parking requirements, and drainage; c) That the use will not have a significantly detrimental effect upon the stability of the neighborhood within which it is located, and; d) That the use will not hinder development or redevelopment of nearby properties. (6) Transfer of Special Use Approval: Approval of a special use is not transferable. When a business which possesses a special use permit vacates the premises, future occupants shall apply for a special use permit, even if the use is the same as indicated on the previous occupant's special use permit. The special use must be established within 180 days of the date of discontinuance by the previous occupant. (7) Abandonment: When a special use is discontinued or abandoned for a continuous period of 180 days, every subsequent use shall be in conformity with the requirements for the zoning district in which it is located. (8) Modification: Modifications to an approved special use must be approved by the Planning and Zoning Board. If the Board finds that the requested modification is significant, then the modification must be heard as a new special use application. Any request for a modification may be denied. NOTIFICATION PROVISIONS: 2.4.2(B)(1)(e) Conditional Uses and Special Uses: Notice shall be provided in the same manner as in Section 2.4.2(B)(1)(b). In addition, a public notice shall be published in the legal section of a newspaper and shall appear at least ten (10) days prior to the hearing before the Planning and Zoning Board. FEES: 2.4.3(K)(1)(i) SDecial Uses, New aDDlication $ 500 Special Uses~ Modification $ 200 Section 1.3.1 ARTICLE 1.3~ NONCONFORMING USESt LOTSt AND STRUCTURESI Section 1.3.1 Purpose: (A) Within the zoning districts established by Chapter Four, there exist lots, structures, uses of land and structures, and characteristics of use, which were lawful before the passage of said Chapter Four but are now prohibited, regulated, or restricted. It is the Intent to allow such nonconformities to continue until they are removed, but not to encourage their continuation. Nonconformities shall not be enlarged upon, expanded, extended, or used as grounds for adding other structures or uses prohibited elsewhere in the same zoning districtlz except.as provided in Section 2.4.5(M). (B) Nonconforming uses are declared to be incompatible with uses allowed in the zoning districts Involved. A nonconforming use of a structure, land, or structure and land tn combination, shall not be extended or enlarged, either by erecting additional signs, adding additional square footage to a structure, or adding other uses of a nature which would be prohibited tn the zoning district tnvolvedl~ except as provided in Section 2.4.5(M). (C) To avoid undue hardship, nothing herein shall require a change in the plans, construction, or designated use of any building on which actual construction has been carried on diligently. Actual construction shall include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition, excavation, or removal of an existing building has been substantially started preparatory to rebuilding, such demolition, excavation, or removal shall be considered actual construction, provided the work is carried on diligently, and the development becomes established pursuant to 2.4.4(C). Section 1.3.2 Nonco~forming Lots of Record: Any lot or parcel of record which qualifies as a lot of record may be used only as allowed in Section 4.1.4. Section 1.3.3 Nonconforming Uses of Land~ or Land with Minor Structures On%y: Where lawful use of the land existed on September 1, 1990, that would not now be allowed and where the use involves no individual structures with a replacement cost exceeding $1,000, the use may be continued, subject to the following provisions: 1301 ORDINANCE NO. 23-94 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING SECTION 2.4.5, "PROCEDURES FOR OBTAINING DEVELOPMENT APPROVALS", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY ENACTING A NEW SUBSECTION (M), "ESTABLISHMENT OF A SPECIAL USE"; AMENDING SECTION 2.4.2(B) (1) (e) TO PROVIDE NOTICE REQUIREMENTS FOR SPECIAL USES; AMENDING SECTION 2.4.3(K) (1) (i) TO PROVIDE FEES FOR SPECIAL USE APPLICATIONS; AMENDING ARTICLE 1.3, "NONCONFORMING USES, LOTS, AND STRUCTURES", SECTION 1.3.1, "PURPOSE", TO PROVIDE FOR EXCEPTIONS ESTABLISHED BY THE ENACTMENT OF SECTION 2.4.5(M); PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the subject matter at its meeting of April 18, 1994, and has forwarded the change with a recommendation of approval; and WHEREAS, pursuant to Florida Statute 163.3174(4) (c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with, and furthers the objectives and policies of, the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.5, "Procedures for Obtaining Development Approvals", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended by enacting a new subsection (M), "Establishment of a Special Use", to read as follows: (M) Establishment of a Special Use: (1) Rule: Pursuant to the requirements of this section~ a new nonconforming use of a lesser intensity may be established within: (a) a structure which is currently occupied by a nonconforming use~ or (b) a structure which was previously occupied by a nonconforming use that has not been discontinued or abandoned for a continuous period of 180 days. Uses established pursuant to this section are considered "special uses". Once a special use apDroval has been granted~ future uses of the property shall be of no greater intensity than the special use. (2) Required Information: The aDplicant shall provide standard application items pursuant to Section 2.4.3(A). In addition, if establishment of the special use requires improvements to a site or substantial changes to existing improvements~ the applicant shall provide a sketch plan showing the extent of those improvements. At its discretion~ the Planning and Zoning Board may require submission of a site plan prepared pursuant to Section 2.4.3(B). At the apDlicant's discretion~ a simultaneous site plan application and special use application may be filed. (3) Procedure: A special use request shall be processed through the following sequence: (a) Receipt and certification as complete. (b) Consideration at a public hearing before the Planning and Zoning Board. (c) Action by motion of the Planning and Zoning Board to either approve, approve subject to conditions~ or deny. A concurring vote of five (5) members shall be necessary to decide in favor of an applicant with respect to a special use approval. (d) Issuance of a final written order specifying the Board's action and conditions~ if any. The authority to permit the establishment of a special use rests with the Planning and Zoning Board. Appeals of the Planning and Zoning Board's decision shall be by writ of certiorari to the Circuit Court filed no later than thirty (30) days after the issuance of the Board's written final order. (4) Conditions: Conditions may be imposed pursuant to Section 2.4.4(C). In addition, the Board may impose additional conditions on the operation of the use which the Board deems necessary to mitigate potential adverse impacts on adjacent properties and uses, and to bring the site into compliance with the City's Land Development Regulations~ fire and safety codes~ and environmental ordinances. - 2 - Ord. No. 23-94 (5) Findings: In addition to the provisions of Chapter Three, the Planning and Zoning Board shall make the following findings prior to approving the special use: (a) That the use is appropriate for the subject site based upon the particular location, design~ and/or orientation of the building that is to be occupied; (b) That the special use is less intense than the most recent use which occupied the premises. In determining whether or not a use is less intense~ the following factors shall be considered: traffic~ noise~ odor~ hours of operations~ parking requirements~ and drainage; (c) That the use will not have a significantly detrimental effect upon the stability of the neighborhood within which it is located~ and; (d) That the use will not hinder development or redevelopment of nearby properties. (6) Transfer of Special Use Approval: Approval of a special use is not transferable. When a business which possesses a special use permit vacates the premises~ future occupants shall apply for a special use permit~ even if the use is the same as indicated on the previous, occupant's special use o_ermit._/~. ~ use must be eStablish~ithln~0 days of th~ date of discontinuance b~ the previous occupant. ~ (7) Abandonment:~When a special use is discontinued or abandoned for a continuous period of 180 days~ every subsequent use shall be in conformity with the requirements for the zoning district in which it is located. (8) Modification: Modifications to an approved special use must be approved by the Planning and Zoning Board. If the Board finds that the requested modification is significant~ then the modification must be heard as a new special use application. Any request for a modification may be denied. - 3 - Ord. No. 23-94 Section 2. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.2, "Notice Requirements", Subsection 2.4.2(B) (1) (e), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: (e) Conditional Uses and Special Uses: Notice shall be provided in the same manner as in Section 2.4.2(B) (1) (b). In addition, a public notice shall be published in the legal section of a newspaper and shall appear at least ten (10} days prior to the hearing before the Planning and Zoning Board. Section 3. That Chapter Two, "Administrative Provisions", Article 2.4, "General Procedures", Section 2.4.3, "Submission Requirements", Subsection 2.4.3(K), "Fees", Sub-subsection 2.4.3(K) (1) (i), of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: ( i ) Special Uses~ New application $ 500 Special Uses, Modification $ 200 Section 4. That Chapter One, "General Provisions", Article 1.3, "Nonconforming Uses, Lots, and Structures", Section 1.3.1, "Purpose", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 1.3.1 Purpose: (A) Within the zoning districts established by Chapter Four, there exist lots, structures, uses of land and structures, and characteristics of use, which were lawful before the passage of said Chapter Four but are now prohibited, regulated, or restricted. It is the intent to allow such nonconformities to continue until they are removed, but not to encourage their continuation. Nonconformities shall not be enlarged upon, expanded, extended, or used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district~ except as provided in Section 2.4.5(M). - 4 - Ord. No. 23-94 (B) Nonconforming uses are declared to be incompatible with uses allowed in the zoning districts involved. A nonconforming use of a structure, land, or structure and land in combination, shall not be extended or enlarged, either by erecting additional signs, adding additional square footage to a structure, or adding other uses of a nature which would be prohibited in the zoning district involved~, except as provided in Section 2.4.5(M). (C) To avoid undue hardship, nothing herein shall require a change in the plans, construction, or designated use of any building on which actual construction has been carried on diligently. Actual construction shall include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition, excavation, or removal of an existing building has been substantially started preparatory to rebuilding, such demolition, excavation, or removal shall be considered actual construction, provided the work is carried on diligently, and the development becomes established pursuant to 2.4.4(C). Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 7. That this ordinance shall become effective immediately upon passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 1994. MAYOR ATTEST: City Clerk First Reading Second Reading - 5 - Ord. No. 23-94