Land Development Land Development ProjectProject

Land Use LawLand Use LawSpring 2004Spring 2004

Mark SpykermanMark Spykerman

Land Development ProjectLand Development Project1.1. The ProposalThe Proposal2.2. The Current ZoningThe Current Zoning3.3. The Zoning ProcessThe Zoning Process

1. The Proposal1. The Proposal

New Urbanist Light CommercialNew Urbanist Light Commercial Storefronts right up Storefronts right up

against sidewalk.against sidewalk. On street parking On street parking

only (will depend only (will depend heavily on heavily on pedestrian traffic)pedestrian traffic)

Possible UsesPossible Uses– Coffee shop Coffee shop – Specialty RetailSpecialty Retail

LocationLocation Vacant gas station Vacant gas station

at southeast corner at southeast corner of Delmar at North of Delmar at North & South.& South.

Located in Located in University City, ½ University City, ½ mile north of mile north of downtown Claytondowntown Clayton

The neighborsThe neighbors Commercial Uses Commercial Uses

directly South (dry directly South (dry cleaner) cleaner)

Commercial Uses Commercial Uses at all corners of the at all corners of the intersection.intersection.

The neighbors, con’t.The neighbors, con’t. High Density High Density

Residential (Zoned Residential (Zoned HR) on North & HR) on North & SouthSouth

Medium Density Medium Density residential (MR) residential (MR) along Delmaralong Delmar

2. The Current Zoning2. The Current Zoning

University City Zoning MapUniversity City Zoning Map

Proposed Project’s Current Zoning:Proposed Project’s Current Zoning:Limited CommercialLimited Commercial

Limited CommercialLimited Commercial Section 34.35.2 Intent and Section 34.35.2 Intent and

purpose.purpose.The "LC" limited commercial The "LC" limited commercial district is intended to district is intended to accommodate limited retail accommodate limited retail and service businesses at and service businesses at locations within or adjacent to locations within or adjacent to residential neighborhoods. residential neighborhoods. Such retail and service Such retail and service establishments are intended establishments are intended to serve a relatively small and to serve a relatively small and local market area, or are of local market area, or are of such character and intensity such character and intensity which are compatible with the which are compatible with the surrounding neighborhood. surrounding neighborhood. (Ord. 6139 § 1 (Exh. A (part)), (Ord. 6139 § 1 (Exh. A (part)), 1997)1997)

Section 34.35.3 Permitted Section 34.35.3 Permitted UsesUses– Ordinance lists 20 specific Ordinance lists 20 specific

uses allowed in LC districts, uses allowed in LC districts, including retail specialty including retail specialty shops.shops.

Section 34.35.4 Section 34.35.4 Conditional UsesConditional Uses– Ordinance lists 18 conditional Ordinance lists 18 conditional

uses including restaurants uses including restaurants and outdoor seating.and outdoor seating.

Section 34.94.2 Schedule Section 34.94.2 Schedule of off-street parking space of off-street parking space requirements.requirements.– Coffee Shop requires 1 spot Coffee Shop requires 1 spot

for every 50 sq feet of for every 50 sq feet of customer floor spacecustomer floor space

– Retail specialty requires 1 Retail specialty requires 1 spot for every 200 sq feet of spot for every 200 sq feet of retail spaceretail space

Density and Dimensional Density and Dimensional RegulationsRegulations

Section 34.35.5 Density and dimensional regulations.Section 34.35.5 Density and dimensional regulations.

Building Setback Requirements.Building Setback Requirements.– a. Minimum Right-of-way Setback. Except as provided for in Article 5, "Supplementary a. Minimum Right-of-way Setback. Except as provided for in Article 5, "Supplementary

Regulations," Division 34-55, no building shall be located within thirty-five (35) feet of a street Regulations," Division 34-55, no building shall be located within thirty-five (35) feet of a street right-of-way, right-of-way, unless no parking areas are located between the street right-of-way and any principal or accessory building. Under these conditions, the minimum setback may be reduced to fifteen (15) feet..

– b. Minimum Property Line Setback. No building setback is required from a property line, other b. Minimum Property Line Setback. No building setback is required from a property line, other than a right-of-way line, than a right-of-way line, except where a lot abuts a residential district or except where a lot abuts a residential district or abuts an alley right-of-way which separates the lot from a residential abuts an alley right-of-way which separates the lot from a residential district. Under these conditions, the minimum building setback district. Under these conditions, the minimum building setback requirement shall be fifteen (15) feet from the applicable property requirement shall be fifteen (15) feet from the applicable property line(s). Also see Article 5, "Supplementary Regulations," Division 34-60, line(s). Also see Article 5, "Supplementary Regulations," Division 34-60, for screening requirements.for screening requirements. Where a property line setback is not required, but a Where a property line setback is not required, but a building is set back off the property line, then it shall be set back at least five feet.building is set back off the property line, then it shall be set back at least five feet.

Modification of Property set backModification of Property set back– Ordinance specifically calls for set back modifications to be addressed Ordinance specifically calls for set back modifications to be addressed

through conditional use permits instead of variances.through conditional use permits instead of variances.– Impact to adjacent residential use must be considered before set back Impact to adjacent residential use must be considered before set back

modification will be allowed.modification will be allowed.

3. The Zoning Process3. The Zoning Process

IssuesIssues Conditional Use Conditional Use

permit for coffee permit for coffee shopshop– (Specialty retail is a (Specialty retail is a

permitted use)permitted use) Modification of set Modification of set

back requirement back requirement requires a requires a conditional use conditional use permitpermit

Variance for the Variance for the off street parking off street parking requirementrequirement

Conditional Use permit Conditional Use permit Conditional uses are those types of uses which Conditional uses are those types of uses which

tend to be problematic because they; (1) have a tend to be problematic because they; (1) have a tendency to generate significant traffic volumes tendency to generate significant traffic volumes and/or turning movements, (2) have operational and/or turning movements, (2) have operational characteristics that may have a detrimental characteristics that may have a detrimental impact on adjacent or nearby properties, or (3) impact on adjacent or nearby properties, or (3) have other characteristics which may impact have other characteristics which may impact public health, safety, or welfare; but can be public health, safety, or welfare; but can be approved if such uses meet the criteria approved if such uses meet the criteria established herein. In order to ensure that established herein. In order to ensure that detrimental impacts are avoided or mitigated to a detrimental impacts are avoided or mitigated to a satisfactory level, conditional uses must be satisfactory level, conditional uses must be reviewed, approved and issued a Conditional Use reviewed, approved and issued a Conditional Use Permit. www.ucitymo.org/planningPermit. www.ucitymo.org/planning

Applying for a conditional use Applying for a conditional use permit.permit.

Required Application Required Application Materials:Materials:– ApplicationApplication– Memo describing Memo describing

property, proposed use, property, proposed use, impact to adjacent impact to adjacent propertiesproperties

– Site plan and Artist’s Site plan and Artist’s renderingrendering

Required Procedures:Required Procedures:– Public hearing with Public hearing with

planning commissionplanning commission– Notice to general public Notice to general public

(publication in (publication in newspaper)newspaper)

– Notice to residents Notice to residents within a 185 foot radius within a 185 foot radius (by mail)(by mail)

– Staff report by Zoning Staff report by Zoning AdministratorAdministrator

Approving a conditional use permitApproving a conditional use permit The Planning Commission can recommend to the City The Planning Commission can recommend to the City

Council to grant a conditional use permit if it finds the Council to grant a conditional use permit if it finds the proposed use:proposed use:– 1. Complies with all applicable provisions of the Zoning Code;1. Complies with all applicable provisions of the Zoning Code;– 2. At the specific location will contribute to and promote the 2. At the specific location will contribute to and promote the

community welfare or convenience;community welfare or convenience;– 3. Will not cause substantial injury to the value of neighboring 3. Will not cause substantial injury to the value of neighboring

property;property;– 4. Is consistent with the Comprehensive Plan, neighborhood 4. Is consistent with the Comprehensive Plan, neighborhood

development plan (if applicable), and any other official planning development plan (if applicable), and any other official planning and development policies of the City; andand development policies of the City; and

– 5. Will provide off-street parking and loading areas in 5. Will provide off-street parking and loading areas in accordance with the standards contained in Article 7 of the accordance with the standards contained in Article 7 of the Zoning Code.Zoning Code.

The City Council can then approve, deny or modify the The City Council can then approve, deny or modify the conditional use permit after considering the Planning conditional use permit after considering the Planning Commission’s recommendations. The Council can also table Commission’s recommendations. The Council can also table the application and ask the Planning Commission for further the application and ask the Planning Commission for further study.study.

Why the City Council should Why the City Council should approve the conditional use permit approve the conditional use permit application to allow a coffee shopapplication to allow a coffee shop

While conformity with other zoning While conformity with other zoning and off-street parking and off-street parking requirements will depend on requirements will depend on approval of variances, the nature approval of variances, the nature of the proposed project will benefit of the proposed project will benefit the welfare of the immediate area. the welfare of the immediate area. It will provide convenient It will provide convenient amenities to residents of amenities to residents of neighboring dense residential neighboring dense residential developments and will not developments and will not negatively affect property values. negatively affect property values. Moreover, the proposed project is Moreover, the proposed project is consistent with the comprehensive consistent with the comprehensive plan and will aesthetically blend plan and will aesthetically blend with the surrounding community.with the surrounding community.

Why the City Council should Why the City Council should approve a conditional use permit to approve a conditional use permit to

modify the set back requirementmodify the set back requirement The zoning ordinance The zoning ordinance

requires a 15 foot set back, requires a 15 foot set back, but the proposed project but the proposed project only has room for a 10 foot only has room for a 10 foot setback.setback.

However, our 10 foot set However, our 10 foot set back will be buffered with back will be buffered with evergreen trees, reducing evergreen trees, reducing any impact to neighboring any impact to neighboring residential uses. The residential uses. The screening is otherwise in screening is otherwise in conformity with the conformity with the screening requirements screening requirements between residential and between residential and non-residential uses.non-residential uses.

VariancesVariances Variance is a "variation" from the requirements of the Variance is a "variation" from the requirements of the

Zoning Code for a certain type of construction or use. Zoning Code for a certain type of construction or use. Variances are granted by the Board of Adjustment (a panel Variances are granted by the Board of Adjustment (a panel of University City residents) and are discretionary types of of University City residents) and are discretionary types of relief granted to property owners when they cannot meet relief granted to property owners when they cannot meet the minimum requirements of the Zoning Code. Variances the minimum requirements of the Zoning Code. Variances are only granted in special situations (see Section VI. are only granted in special situations (see Section VI. Standards for Granting Variances). They should be viewed Standards for Granting Variances). They should be viewed only as a last resort option. Variances basically allow the only as a last resort option. Variances basically allow the recipient to be permitted to violate a city zoning ordinance recipient to be permitted to violate a city zoning ordinance while all other citizens must still be required to abide by it. while all other citizens must still be required to abide by it. That is why Variances should only be granted when That is why Variances should only be granted when conditions at the subject property are so unusual and conditions at the subject property are so unusual and atypical that they warrant such special treatment. atypical that they warrant such special treatment. www.ucitymo.org/planningwww.ucitymo.org/planning

Applying for a varianceApplying for a variance Required Application Required Application

Materials:Materials:– ApplicationApplication– Memo describing Memo describing

proposed project and proposed project and potential impact of potential impact of granting the variancegranting the variance

– Site PlanSite Plan– Any additional Any additional

information information requested by the requested by the Zoning AdministratorZoning Administrator

Required Required Procedures:Procedures:– Public hearing Public hearing

before the Board of before the Board of AdjustmentAdjustment

– Notice to general Notice to general public (newspaper)public (newspaper)

– Notice to neighbors Notice to neighbors within a 185 foot within a 185 foot radius (mail)radius (mail)

Standards for approving a varianceStandards for approving a variance Section 34-142.4 requires that the Board of Adjustment Section 34-142.4 requires that the Board of Adjustment

shall not grant a Variance unless it shall, in each case, shall not grant a Variance unless it shall, in each case, make specific written findings of fact directly based upon make specific written findings of fact directly based upon the particular evidence presented to it that support the the particular evidence presented to it that support the following conclusions:following conclusions:– 1. The Variance requested arises from a condition which is 1. The Variance requested arises from a condition which is

unique to the property in question and which is not ordinarily unique to the property in question and which is not ordinarily found in the same zoning district, and is not created by an found in the same zoning district, and is not created by an action or actions of the property owner or the applicant;action or actions of the property owner or the applicant;

– 2. The strict application of the provisions of the Zoning Code 2. The strict application of the provisions of the Zoning Code from which a Variance is requested will constitute unnecessary from which a Variance is requested will constitute unnecessary hardship upon the property owner represented in the hardship upon the property owner represented in the application;application;

– 3. The Variance requested will not adversely affect the 3. The Variance requested will not adversely affect the adjacent properties or public health, safety, order, adjacent properties or public health, safety, order, convenience, or general welfare of the community; andconvenience, or general welfare of the community; and

– 4. Granting the Variance desired will not violate the general 4. Granting the Variance desired will not violate the general spirit and intent of the Zoning Code.spirit and intent of the Zoning Code.

The burden of proof is on the applicant to show all of these The burden of proof is on the applicant to show all of these criteria are satisfied.criteria are satisfied.

Standards for approving a variance, Standards for approving a variance, con’t.con’t.

In determining whether the evidence presented supports In determining whether the evidence presented supports the findings required on the previous slide (by Section 34-the findings required on the previous slide (by Section 34-142.4), the Board of Adjustment shall consider the extent to 142.4), the Board of Adjustment shall consider the extent to which the evidence demonstrates that:which the evidence demonstrates that:– 1. The particular physical surroundings, shape, or 1. The particular physical surroundings, shape, or

topographical condition of the property involved would result topographical condition of the property involved would result in a practical difficulty or unnecessary hardship upon or for the in a practical difficulty or unnecessary hardship upon or for the owner, lessee, or occupant, as distinguished from an owner, lessee, or occupant, as distinguished from an inconvenience, if the provisions of the Zoning Code were inconvenience, if the provisions of the Zoning Code were literally enforced;literally enforced;

– 2. The request for a Variance is not based primarily upon the 2. The request for a Variance is not based primarily upon the desire of the owner, lessee, occupant or applicant to secure a desire of the owner, lessee, occupant or applicant to secure a greater financial return from the property;greater financial return from the property;

– 3. The granting of the Variance will not be materially 3. The granting of the Variance will not be materially detrimental or injurious to other property or improvements in detrimental or injurious to other property or improvements in the neighborhood in which the property is located; andthe neighborhood in which the property is located; and

– 4. The proposed Variance will not impair an adequate supply of 4. The proposed Variance will not impair an adequate supply of light or air to adjacent property, substantially increase the light or air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, congestion in the public streets, increase the danger of fire, endanger the public safety, or substantially diminish or impair endanger the public safety, or substantially diminish or impair property values within the neighborhood.property values within the neighborhood.

Off street parking varianceOff street parking variance Zoning ordinance Zoning ordinance

requires:requires:– 1 spot for every 50 1 spot for every 50

sq feet of customer sq feet of customer space in the coffee space in the coffee shopshop

– 1 spot for every 200 1 spot for every 200 sq feet of retail floor sq feet of retail floor space for retail space for retail specialty usesspecialty uses

Proposed project Proposed project allows only limited allows only limited employee off street employee off street parkingparking

Why the Board of Adjustment Why the Board of Adjustment should grant a varianceshould grant a variance

1. Strict application of the zoning ordinance would 1. Strict application of the zoning ordinance would constitute hardship on the property owner constitute hardship on the property owner because the lot is too small to develop in an because the lot is too small to develop in an economically viable way and still meet parking economically viable way and still meet parking requirements.requirements.

2. The requested variance will not negatively 2. The requested variance will not negatively affect adjacent properties and will actually be a affect adjacent properties and will actually be a community asset to the neighboring residents.community asset to the neighboring residents.

3. The current on street parking facilities (along 3. The current on street parking facilities (along Delmar and North & South) are adequate to Delmar and North & South) are adequate to provide for site-generated parking needs without provide for site-generated parking needs without substantially increasing congestion.substantially increasing congestion.

If all else fails…amend the If all else fails…amend the zoning code.zoning code.