Nonconforming

While I’m not a fan of conformity in everything, I do tend to be a rule follower. Yes or No rules are fairly easy to follow, but so many rules in the real world don’t easily fall into Black & White, but actually fall into gray areas. Even ones that are clearly yes or no, sometimes cause hardships that need consideration. In the world of Zoning, this is the reason for the Board of Zoning Appeals (BZA). When a building or property doesn’t fit neatly in the box laid out by the Zoning Ordinance, the BZA has the ability to inject some flexibility.

This is a recurring topic with the Culver Plan Commission and it came up again in the January meeting. There is always a laudable effort to reduce the load on the BZA, when the BZA is continually hearing similar requests on which it routinely grants variances. There is a whole chapter in the Culver Zoning Ordinance for this. Chapter 8 is titled, “Nonconforming Structures, Lots and Uses” to try and handle this, but there are times that it is still not enough. The Building Commissioner put forth a proposal that a structure should be allowed to be rebuilt on the same footprint without a variance. Again, this is something that is routinely granted. But I don’t think it is something where a variance should be waived.

As with a lot of our government where there are multiple individuals involved, the BZA is often in the business of finding reasonable compromises. The concept of allowing reconstruction on the same footprint is already a bit cumbersome in practice. Often, the reason for wanting to build back on the original footprint is because that allows continued violations of required setbacks, impervious surface standards or other ordinance rules. Sometimes this is a necessity due to lot sizes, but there can still be issues. Without review, the policy can be abused.

In the past, every nonconforming structure required a BZA review and variance in order to make any changes. The idea was for there to be a review to see if the proposed project could make the structure less nonconforming, if not bring it completely into compliance. This not only gave the BZA the opportunity to review the project, but allowed the neighboring property owners to voice support or concerns regarding the project. The current thinking is that this is unwieldy, but it served a useful purpose.

I have three main concerns with this proposal and the current ordinance:

1. Chapter 8 is hard to read. It attempts to deal with nonconforming lots, nonconforming structures and nonconforming uses. Often two or more of these issues apply at the same time and the overlapping controls become confusing. For example, a structure housing a nonconforming use cannot be expanded, while a nonconforming structure can be expanded if it doesn’t increase the nonconformity, when the structure is nonconforming because it’s on a nonconforming lot. I would suggest that the chapter establish a hierarchy of priorities to help with these decisions. While each case is different, they are not completely unique.
2. Chapter 8 should require some stringent guidelines regarding documentation. If reconstruction is to be allowed on the same footprint, then that footprint must require specific documentation before foundations are removed. Documentation should include locating existing overhangs and variations in the foundation line. There is also a provision that the height may not be increased, so this becomes another specific documentation requirement. Don’t allow 8′ ceilings to become become 10′ ceilings and low foundation walls don’t become daylighted basements.
3. Lastly, I think there should be consideration given to destruction by Acts of God versus demolition for modernization. If a project is literally building back on the same foundation because the house was destroyed by fire or tornado, that is different than tearing everything out and rebuilding on the same footprint because the structure is old. If it is a 100% new structure and there is any way of reducing the nonconformity, even just by inches, the potential for becoming more in compliance should be evaluated and considered.

I think the Building Commissioner is right to ask for clarification and if enough detail is put into determining allowable reconstruction, this is a reasonable thing to delegate to his authority. As it’s written, it’s a minefield and I be concerned about uneven application.