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ZONING AND REZONING by Fred Padget

(November 2008 - scroll down to read previous articles)

We’ve looked at many aspects of the Area Plan Commission and its staff. This group also serves as the staff for the Board of Zoning Appeals who rule on petitions for variance from the zoning ordinance requirements and Special Uses. Today, we are going to look more in-depth at the BZA.

Basically, the BZA hears and determines appeals concerning any order, requirement, decision, or determination made under the zoning ordinance or enforcement of an ordinance that requires obtaining an improvement location permit or occupancy permit except for decisions by the Evansville and Vanderburgh County APC. In other words, the BZA approves or denies variances from specific zoning requirements, Special Uses and appeals. The BZA has all the powers of the official, officer, board, or body from which the appeal was taken.

Looking at the boards activity over the past few months, most of the appeals they hear deal with set-back rules (how far from the street a building can set), lot coverage, type of parking surface and required parking, height of buildings, and the number and amount of signage as well as Special Uses.

Special Uses include approximately 36 different categories of land use and activities such as schools, churches, hospitals, parks, communication or other towers, massage parlors, some home occupations and many, many more uses. The APC web site has an excellent chart indicating all the Special Uses.

The procedure for requesting an appeal hearing is much the same as for a zoning hearing including notification of abutting neighbors and registered neighborhood associations. Following the public hearing on the requested variance, the BZA must either grant or deny the petition and no variance may be granted except on a finding of all the following factors:

•  The approval will not be injurious to the public health, safety, morals, and general welfare of the community.

•  The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.

•  The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.

•  The variance is not a variance of the use of the property.

•  The petitioner's property is not located in a Planned Unit Development.

•  The need for the variance is not created by the applicant.

The Board may incorporate into the granting of a variance whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood.

This series of articles are not intended to be a definitive study of the code but rather create an awareness on the part of the reader that these subjects are covered in great detail in the zoning code and to seek advice from the APC or other professionals if involved in any of these or other areas of zoning.

Next month we’ll cover a few miscellaneous items, look at the legal authority for our zoning laws and start a discussion on the Evansville/Vanderburgh County Comprehensive Plan. If you have any aspect of the rezoning process you would like me to address, please let me know at fcpadget@aol.com or 428-2529.

(October 2008 - scroll down to read previous articles)

This month we are going to look at some of the required permitting for improvements, non-conforming uses, and a couple of other items.

As contained in the zoning code, no building or other structure shall be erected, moved, relocated, added to, or structurally altered nor shall any building, structure or land be established or changed in use without first obtaining an improvement location permit from the Area Plan Commission. (A couple of different terms are used within the subject of permitting, “improvement location permits” and “zoning use permits” but have the same meaning.) If you want to do any of these activities you must file an application with the Area Plan Commission containing the following information:

•  A site plan for the existing and proposed principal and accessory structures and uses showing size, location on the lot and lot size.

• Except for one and two-family dwellings and accessory buildings, the site plan must also show the following: property lines, adjacent properties, entrances and exits to the properties, existing and proposed curb-cuts, proposed directions of traffic flow, location, dimensions and type of off-street parking, and loading facilities.

• The name and address of the person seeking approval.

• Any other plans or specifications which the Area Plan Commission deems necessary.

With a few exceptions this information is forwarded to the Site Review Committee for their approval or disapproval. If not approved, the committee must state in writing the reasons for not approving and the disapproval can be appealed to the Board of Zoning Appeals. Additionally, the Site Review Committee may allow exceptions from this section of the code if the general welfare of the community is not adversely affected and any member of the Committee may appeal decisions of the Committee concerning exceptions to the Board of Zoning Appeals.

Upon issuance of an Improvement Location Permit, it is to be displayed on the premises during any construction or alteration. An Improvement Location Permit may be revoked after ten days by written notice if the conditions of the zoning code requirements and/or the conditions of the permit are not met and it becomes void if construction has not been started or the use has not been established within six months of the date of issuance.

This introduces to this series of articles two new groups involved in the process. The Site Review Committee which includes the APC Director, the Executive Director of the Board of Public Works, a Traffic Engineer appointed by the Mayor, the City Engineer and one other person appointed by the President of the APC. The makeup of this committee is somewhat different for the county. We’ll learn more about the Board of Zoning Appeals in a subsequent article. Further, it must be pointed out that the Building Commission also has requirements that must be met in making improvements or construction. None of this replaces their requirements.

Although the code addressing non-conforming uses is quite detailed, the following pretty well summarizes it. There are uses and structures which lawfully existed at the time this ordinance was approved but would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments. The intent is to permit these non-conforming uses to continue until they are removed, but not to encourage their survival. We often use the term “grandfathered in” to explain this situation. Further, current non-conforming uses shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other uses or structures which are prohibited elsewhere in the same zoning district. Illegal uses existing at the time this ordinance was approved remain illegal uses. If a non-confirming use is replaced by a permitted use, it cannot revert back to a non-confirming use. And, if a non-confirming use is discontinued or abandoned for more than 6 months any future use must comply with the current zoning code. Work can be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring, or plumbing, to the extent not exceeding double the assessed value of the nonconforming structure or nonconforming portion of the structure, whichever the case may be. The floor area existing when it became nonconforming shall not be increased. Strengthening or restoring the facility to a safe condition is permitted if declared unsafe and ordered by any official charged with protecting the public safety.

A couple of other unrelated items:

• Recreational vehicles, trailers, mobile homes and manufactured homes with an inside area of less than 720 square feet may not may not be used as living or sleeping quarters within the City except when within the confines of an approved mobile home court.

• A garage or yard sale may be conducted two times in a calendar year on residential and some other properties for no more than three consecutive days each. All personal property exhibited for sale outside during the sale must be removed and placed within a structure immediately following the last day of such sale. All signs erected for such garage or yard sale must also be immediately removed.

This series of articles are not intended to be a definitive study of the code but rather create an awareness on the part of the reader that these subjects are covered in great detail in the zoning code and to seek advice from the APC or other professionals if involved in any of these or other areas of zoning.

We’ll continue this series next month and if you have any aspect of the rezoning process you would like me to address, please let me know at fcpadget@aol.com or 428-2529.
 

(September 2008 - scroll down to read previous articles)

Last month we wrote about signs. This month we’ll look at off-street parking and loading which is also very detailed as was signs.

Basically, there are two parts to this portion of the zoning code: parking areas not in or adjacent to residential districts and parking areas in or adjacent to residential districts. Both have a lot of detailed requirements such as parking space size, angle parking, access drives, signage, and green space. We’ll just provide a simplified overview of other aspects of the code concerning parking areas.

Some aspects of the code that apply to both types of parking require that any person who constructs or structurally alters a building or use shall provide and maintain off-street parking facilities. The required off-street parking facilities shall not be discontinued or reduced, the Site Review Committee must approve the plan, and an Improvement Location Permit is required. The parking facilities have to be on the same lot as the principal use; however, if the size or shape of the lot or the existence of a nonconforming building or use prevents parking facilities on the lot, the owner may provide the facilities on an alternate lot within 300 feet if he files a copy of the deed or lease agreement to the alternate lot with the Area Plan Commission. All parking spaces may be in either garages or open parking areas and automotive vehicles, including campers and motor homes of any kind, without current license plates, are not to be parked or stored on any residential property other than in a completely enclosed building.

Parking areas not in or adjacent to residential districts may include a garage but no other buildings and must be designed to eliminate vehicles backing out into street right-of-way. Parking areas and access drives must have a hard and sealed surface except in R-1, R-2, and Agricultural districts, and be graded and drained so that no water flows onto adjacent properties or sidewalks. The parking area must have bumper guards to prevent any part of a parked vehicle from extending beyond the parking area and the parking area must be maintained and kept free of weeds, trash, and debris. Any lighting has to be shaded and located so that it does not cause glare onto adjacent properties or interfere with street traffic.

Parking areas in or adjacent to residential districts are required to meet all the requirements of parking areas not in or adjacent to residential districts as well as additional requirements. First of all, a Special Use Permit #10, Parking Lots and Parking Garages Open to the Public is required for parking lots separated from the lot occupied by the principal use. No charge shall be made for parking and only parking of passenger motor vehicles is allowed. Access must be through the principal use lot or from a public alley and is only allowed though the required front yard if no other access is available. Along the length of all required yards adjacent to a residential lot, there must be a wall or fence of various types. Theaters and churches can reduce the off-street parking requirements by the number of spaces available in commercial or industrial parking areas within 500 feet of the theater or church, if the areas are not used during operating hours of the theater or church.

An access or service drive may not be constructed over a public sidewalk or right-of-way without approval from the City Engineer and be in conformance with the Evansville Metropolitan Planning Organization Access Standards Manual. Other considerations include:

• Automotive and pedestrian safety.
• Traffic flow and control.
• Accessibility for emergency vehicles.
• Effects of the access drive on abutting properties.

Space has to be provided separate from off-street parking areas, streets, and alleys for loading and unloading, and can not block off-street parking, streets, or alleys. Further, vehicles may not be parked or stored in the off-street loading areas during the time in operation, except for loading and unloading purposes and, off-street loading space must be provided and maintained in accordance with a required schedule.

This series of articles are not intended to be a definitive study of the code but rather create an awareness on the part of the reader that these subjects are covered in great detail in the zoning code and to seek advice from the APC or other professionals if involved in any of these or other areas of zoning.

I’m worn out, but next month we’ll continue this series and if you have any aspect of the rezoning process you would like me to address, please let me know at fcpadget@aol.com.
 

(August 2008 - scroll down to read previous articles)

As we get further into this analysis concerning the function of the Area Plan Commission and the zoning ordinance, we become involved in much greater detail. Today, I’d like to take a more detailed look at requirements for signs along with zoning code enforcement.

The purpose of the zoning code pertaining to signs is “intended to provide reasonable standards for signs utilized for identification of an owner's business or industry while discouraging their proliferation, disrepair, or garishness”. No signs (there are a few exceptions we’ll go into later) shall be erected or placed until a zoning use permit has been issued by the APC. It doesn’t matter if the sign is painted or affixed to the building or land. And, as we said last month, signs or posters affixed to telephone and utility poles, trees or other structures on public right-of-way or in a public street or highway right-of-way are just plan prohibited. We’ve all seen them in abundance, especially during spring and summer. This may be one reason “garishness” appears in this section of the code. Additionally, each sign requiring a permit shall display the permit number. When the advertising purpose of the sign is abandoned or altered, it must be removed within 60 days or altered to reflect an existing product. When signs are no longer readable, materially obstructed from view, or a condition of dilapidation exists, the Building Commissioner becomes involved and can order the owner of the sign to alter, repair, or remove it.

Temporary signs also require permits and have various restrictions that are determined by the purpose for the sign and off-premise signs have some additional requirements. In general, all signs require a zoning use permit issue by APC. Theaters have some special rules and, as I indicated earlier, some signs are exempt from this code as follows:

• Signs not exceeding two square feet in area which identify the names and addresses of occupants but do not denote commercial activity.
• Flags and insignias of a governmental unit, church, or organization except in connection with a commercial promotion.
• Legal notices, identification, informational, warning, trespassing, or directional or architectural features of buildings.
• Memorial plaques and historical markers.
• Integral decorative or architectural features of buildings.
• One real estate sign for each frontage, not exceeding six square feet, indicating the sale, rental, or lease of the premises.
• Traffic or directional signs placed by a municipality of state.
• An exempt sign may be illuminated but may not be flashing or animated.

How many times have you seen some of these illegal signs, or other zoning violations, and wondered why they are allowed to do that? Why doesn’t somebody enforce the code if not in compliance? Well, the APC will enforce the zoning code when they become aware of violations. With only two zoning enforcement officers, the complexity of the zoning code, much activity, and responsibility for all the city and county, they get spread pretty thin. If you do see something whether it be signs, parking, building uses, green space, set-backs or any thing else that appear to be in violation of the zoning code, call the Area Planning Commission and make them aware of it. They’ve been most helpful whenever I’ve contacted them. The APC is in the Civic Center Complex, Room 312 and the phone number is 435-5226. And, you can access both the city and county zoning code from the APC web site www.evansvilleapc.com.

This series of articles are not intended to be a definitive study of the code but rather create an awareness on the part of the reader that these subjects are covered in great detail in the zoning code and to seek advice from the APC or other professionals if involved in any of these or other areas of zoning.

Next month we’ll continue this series and if you have any aspect of the rezoning process you would like me to address, please let me know.
 

(July 2008 - scroll down to read previous articles)

In the first three parts of this series, we’ve looked at functions generally recognized and associated with the Area Plan Commission (APC). Today, we are going to look at some areas of responsibility for the group not always thought of as APC functions.

For example, we know a single family home would be zoned R-1, Residential. But do we know the maximum height is limited to 35 feet with a minimum lot size of 6,000 square feet? In fact the code not only sets standards for building height and minimum lot size but also the minimum lot width, minimum front, side, and rear yard as well as lot coverage (size of the foot print) and the green space required. An apartment, R-5, can be 150 feet tall on a 5,000 square foot lot while a Commercial, C-3, has no maximum height restriction and no minimum lot size. Of course a site review committee reviews all site plans associated with rezonings and must approve the plan in conjunction with the code.

The zoning code also provides requirements for off-street parking and loading, signage, both on-premise and off-premise as well as some thoroughfare regulations. The regulations for off-street parking include, among other things, the location, type and size, amount of off-street parking and, access and service drives. For example, a parking space must be a minimum of 9 feet wide and 18 feet long. Restaurants and cafeterias require one parking space for each three customer seats while theaters require one parking space for each four seats, plus one space for each employee of the largest working shift and shopping centers over 25,000 square feet in size require five spaces for each 1,000 square feet of gross lease area while shopping centers less than 25,000 square feet in size require one space for each 200 square feet of gross floor area.

Signage, for example, prohibits signs or posters affixed to telephone and utility poles, trees or other structures on public right-of-way or placed over or in a public street or highway right-of-way. A Commercial, C-4 zoning would allow three signs with a total of 500 square feet.

The Thoroughfare Regulations were established to promote public safety. These Thoroughfare Regulations are applied during the development review process including all rezoning petitions, applications for zoning use permits, and proposed plats submitted to the Area Plan Commission. All development proposals shall allocate adequate access for streets in conformity with the Thoroughfare Plan and shall designate and label all such streets in accordance with the specified definitions, specifications, and requirements regarding control of access, platted width, and setback requirements. The code goes into great detail about road classifications such as controlled access, major or minor arterial, and collector designations.

This article is not intended to be a definitive study of the code but rather create an awareness on the part of the reader that these subjects are covered in great detail in the zoning code and to seek advice from the APC or other professionals if involved in any of these or other areas of zoning.

Next month we’ll continue this series looking at some additional aspects of the APC and other thoughts about appropriate land use. There is much more to the complete process and you can find additional detail at the APC web site www.evansvilleapc.com.

In the meantime, if you have any aspect of the rezoning process you would like me to address, please let me know.
 

(June 2008-scroll down to read parts 1 & 2)

Previously we discussed Zoning Classifications, Use Groups, Use and Development Commitments and notification to abutting property owners along with other information. Today, we’ll look at how the Area Plan Commission members are selected, how the meetings are conducted, and other aspects of this function.

There are 13 APC members: five are appointed by the Mayor of the City of Evansville, three by the Evansville City Council, two by the Vanderburgh County Commissioners, one by the Board of Public Works, one by The Evansville School Board and the County Surveyor is a member by virtue of the office. The Executive Director of the APC is Brad Mills and there is a paid staff to support the APC function. The APC staff is located in Room 312 of the Civic Center Complex.

The APC recommends approval or denial of the subject Rezoning Petition to the City Council or County Commissioners. It takes 7 affirmative votes to recommend approval and 7 negative votes to recommend denial. If there are not seven votes, it goes forward with no recommendation. In the case of subdivisions, the APC is the final authority and requires no action on the part of the City Council or County Commissioners. Presentation of the rezoning request is made by the petitioner or their representative after whom remonstrators are allowed to present their objections, if any, to the petition. All those testifying are sworn in and time limits are usually enforced.

In making their decision concerning a Rezoning Petition the APC members and the appropriate legislative body are to consider the following as contained in Article 15-153-159 of the Municipal Code:

•     The amendment (Rezoning Petition) conforms to the comprehensive plan;

•     Current conditions and the character of current structures and uses in each district;

•     The most desirable use for which the land in each distract is adapted;

•     The conservation of property values throughout the jurisdiction;

•     The zoning classification of the property is improper and the amendment will correct the improper classification;

•     Major physical, economic, or social changes have substantially altered the area in a manner not anticipated in the comprehensive plan, and the amendment will assist the development of the area consistent with the changes.

In the case of subdivisions where the APC has final authority, recent minutes of the APC meetings indicate state law and the Subdivision Control Ordinance dictate the issues the APC can consider when reviewing a subdivision application. Consideration of a subdivision is limited to whether or not it complies with the standards and requirements of the local ordinance. If the application meets the requirements of the code, the APC must approve the subdivision plat. Indiana courts have ruled that Plan Commissions have no discretion in this regard and that the APC role in reviewing and acting on subdivisions is purely ministerial.

That’s plenty for this month, next month we’ll continue this series looking at some additional aspects of the APC and other thoughts about appropriate land use. There is much more to the complete process and you can find additional detail at the APC web site www.evansvilleapc.com. 

In the meantime, if you have any aspect of the rezoning process you would like me to address, please let me know.

(May 2008--scroll down to read Part 1)

Last month we discussed zoning classifications and Use Groups. A question we left with you was what if a particular zoning classification makes sense from a land use perspective but includes some uses that may not be acceptable to that specific location? For example, the best use for a location may be Commercial, C-4 which includes 182 types of businesses including retail stores selling clothing, shoes, legal drugs, automotive parts, catering services, and many more. But the C-4 also allows dance halls, party houses, automobile and motorcycle repair, welding shops, boat repair, truck repair, automotive service stations, and many other types of business. Let me be clear, we’re not saying these or any other type of legal business is undesirable, simply that they may not be appropriate for a particular site depending on many factors.

In this regard, a Use and Development Commitment (U&DC) can be written indicating what uses are specifically allowed or what uses are specifically eliminated from the uses allowed for that zoning classification. Although the U&DC properly limits its scope to land use, they are occasionally used to address lighting concerns, hours of operation, and other factors relating to the business. Additionally, U&DCs are not limited to Commercial classifications but can also be used for any zoning classification if appropriate to the specific project.

Another question left from last month was how do I know if a rezoning is taking place next to my property? First of all, anyone proposing to rezone a property is required to fulfill many requirements of the Area Plan Commission (APC). This includes filing a petition and ordinance with the APC along with a U&DC if desired. The monthly agenda for the APC meeting is published in the Courier two-three weeks prior to the meeting. It’s usually published at least twice. The APC Web site also includes the agenda but usually with less lead time. More importantly, the Petitioner must provide notice to all abutting property owners at least 12 days prior to the APC meeting when the petition will be heard. These notices are to be certified mail with a return receipt. Further, organized neighborhoods that are registered with the city or county are also required to be notified the same as abutting neighbors. This is another good reason for neighborhoods to be organized and a member of United Neighborhoods of Evansville since they will make sure your group is registered with both the city and county. In addition to those notices, the petitioner is required to post a sign on the property in full view of the public indicating the proposed rezoning at least 12 days prior to the APC hearing.

Next month, we’ll look more closely at the APC, how members are appointed, and mechanics of the hearing as well as other aspects of the group and how they function. There is much more to the complete process and you can find additional detail at the APC web site www.evansvilleapc.com.

In the meantime, if you have any aspect of the rezoning process you would like me to address, please let me know.

(April 2008) On occasion, I’ve been asked about zoning and rezoning, what’s involved, how we know when rezoning occurs, and many other questions involving the process and procedure. I’m certainly no expert on this subject and don’t profess to be one, I’m hardly proficient. But I felt maybe an occasional article dealing with the Zoning Ordinance, the Area Plan Commission, and related aspects of land use might be beneficial to some of our readers and I know I’ll learn from the effort.

The Area Plan Commission is a joint city/county organization with the Area Plan Commission Board making decisions concerning rezoning requests and sub-division approval while the Board of Zoning Appeals make decisions concerning variances to the Zoning Code and Special Uses. We’ll get in to more of the workings of these groups in future articles. Today I want to look at the various types of zoning and some aspects of which you might not be aware.

First, there are two separate ordinances; one for the county and one for the city. Although they are identical for all practical purposes, our comments are based on the city version.

There are 20 zoning classifications including those we are familiar with such as various Residential, Commercial, Agriculture, and Manufacturing (Industrial) Districts but also Floodway, Airport, Conservancy, Waterfront Industrial, and Waterfront Recreational/Residential Districts are included.

In addition to the zoning classifications, there are sub-classifications called Use Groups consisting of one or more uses generally somewhat related to each other. There are 20 Use Groups. Each zoning district specifies which Use Group(s) are allowed within that zoning district. For example, we think of Residential, R-1, as single family dwellings (Use Group 1) but it also allows Use Group 2 which includes 15 types of home occupations if certain other requirements are met. A Residential, R-5, is still residential but would allow five  different Use Groups including supervised group homes, sororities and fraternities.

Another example is Commercial, C-1, which allows five Use Groups and includes 59 different types of businesses while Commercial, C-4, allows seven Use Groups including 182 types of business, at least by my count. In working with the code, it becomes increasingly clear that not only is an understanding of the Zoning Districts important but it is critical to have an understanding of the Use Groups

What if it makes sense to zone an area C-4 but some of the allowed businesses might not be appropriate for the area? If there is a request to rezone an area next to me, how do I know? If I’m opposed or supportive of it, what can I do? At this point, you may need a break. I know I do. But these are some questions we’ll examine in the next article along with other aspects of the zoning process. In the meantime, all of this information along with the zoning code, procedures and much more are available at www.evansvilleapc.com.
 

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