Planning Commission

CITY COUNCIL, PLANNING COMMISSION, BOARD OF ADJUSTMENT August 11, 2018 City Council Chambers 400 East Military, Fremont NE STUDY SESSION – 10:00 A.M. AGENDA STUDY SESSION: 1. Meeting called to order 2. What is Planning? 3. Purpose and Authority of the Planning Commission and Board of Adjustment 4. What is the Comprehensive Plan? 5. Authority and purpose of Zoning Regulations 6. Non-conforming uses and enforcement 7. Adjournment  The NEBRASKA CHAPTER OF THE AMERICAN PLANNING ASSOCIATION (APA) and The NEBRASKA PLANNING & ZONING ASSOCIATION (NPZA) Planning Commissioner Training Presented by Harry Milligan, former Planning Director for the City of Hastings, and David H. Ptak, Attorney at Law  WARNING! Unauthorized use (ring tone) of cell phones during presentation is punishable by a fine of $50.00, payable to the presenters in small, unmarked bills. Sec. 3-104(3) Omaha City Code Please set your cell phones to vibrate or turn them off.  Zoning Authority Cities and Villages: §§19‐901 to 19‐933 Counties: §§23‐114‐114.06, 164, 165, 170, and 172‐174.10 Board of Adjustment Cities and Villages: §§19‐907 to 19‐912 Counties: §§23‐168.01 to 23‐168.04 Nonconforming Uses Cities and Villages: §§19‐904.01 Counties: §§23‐173.01  Purpose of Zoning: §19‐901 – to promote the health, safety, morals, or the general welfare of the community. 5-step process (1) Appoint a Planning Commission; (2) Prepare and adopt a Comprehensive Development Plan; (3) Prepare and adopt Zoning regulations; (4) Appoint a Board of Adjustment; and (5) Zoning enforcement and penalties. §19-902 – Zoning may regulate or restrict: (a) The erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land; (b) The percentage of lot areas which may be occupied; (c) Building setback lines; (d) Sizes of yards, courts, and other open spaces; (e) The density of population Planning: What is it? Planning Is an Organized Way of Determining a Community’s Needs and Setting Goals and Objectives To Address those Needs. Planning Is A Forward Thinking Process. Planning Bridges the Gap from Where We Are To Where We Want To Go. Today The Future Planning Is A Process That Can Help Move A Community from Today’s Reality to Tomorrow’s Possibilities. Good Planning = Good Decisions Planning: What is it? Even a journey of a thousand miles must begin with a single step. Chinese proverb Never doubt that a small group of committed citizens can change the world; indeed it is the only thing that ever has. Margaret Mead Vision without action is merely a dream. Action without vision is just passing time. Vision with action can change the world. Joel Barker Planning: What is it? • A process to determine what is the most appropriate use of the land • A means to protect the most appropriate uses • A means to protect sensitive resources such as water, soil, etc. Good planning is the basis for good enforceable regulations Planning: What it’s not • It is not the Land Use or Zoning Police • It is not a QUICK fix for economic development issues • It will not stop population decreases by itself • It is not a solution to bad politics or a lack of leadership • Will not produce immediate results Why the Planning Process is Important • Provides for an exchange of ideas and vision • Identifies and maintains the desired quality of life • Identifies and protects natural and cultural resources and other scarce resources within the Community • Identifies the most appropriate use of the land • Develops policies to protect the most appropriate/compatible uses Why the Planning Process is Important • Provides local control and protection • Developed for the interest of the public’s health, safety, morals, and general welfare • Can provide a tool to aid in protecting conflicting uses from each other • Provides a mechanism to address land use issues along joint jurisdictional boundaries • Can assist in economic development efforts for the community Why should you plan anyway? • Everybody plans • Planning makes good common sense • Common sense involves striking a balance between being innovative and being ultra- conservative • Allows a community to look before they leap • The Comprehensive Plan is similar to a business plan for the community • But, what about the future . . . Conservation/Preservation • Protection of existing ecosystems • Conservation easements • Restore ecosystems • Economic development • Tax base Bio-fuels • Renewable energy sources • Grain production • Tax base • Livestock • Water intensive uses Wind Energy • Renewable energy resource • Wind corridors • Wind farms • Noise • Shadow flicker Solar Energy • Renewable energy resource • Variable set up • Individual buildings • Solar farms • Don’t forget residential uses as well Changing Populations • Demographic shifts • Aging population • New/different types of housing • New uses to support population Youth • They are what this process is about • Today’s plan is their reality • Greatest resource for the future • Economic development • Gen Y and Z have a very different viewpoint of what’s important • They are be tomorrows civic leaders, business men and women, teachers, farmers, etc. • What kind of world will we leave them? Other Issues • Historic preservation • Signs • Adult establishments • Telecommunications • Landfills  Planning Commission • Consists of 9 (5, 7 or 9) regular members; • Appointed by the Mayor with approval of governing body; • 2 members may be residents of the City’s ETJ (when population of ETJ equals 200 for Villages, 500 for second class cities, and 1,000 for first class cities next vacancy on PC appointed from ETJ ‐ §19‐926); • Serve without compensation and hold no other municipal office (except BOA); • 3‐year terms (staggered)  Planning Commission • PC members hold office until their successors are appointed; • PC members may be removed by Mayor with consent of governing body for inefficiency, neglect of duty or malfeasance in office, or other good and sufficient cause. • Vacancy in office appointed by the Mayor for remainder of unexpired term. • May by ordinance provide for an alternate member of PC  Planning Commission • PC members elect a chairperson and other offices as it may determine; • Meet at least once each calendar quarter; • shall adopt rules and regulations for the transaction of business (By‐laws) and shall keep a record of its resolutions, transactions, findings, and determinations, all of which shall be a public record.  Planning Commission 1. Except as provided in sections 19‐930 to 19‐ 933, the planning commission shall: a) make and adopt plans for the physical development of the municipality, including any areas outside its boundaries which in the commission's judgment bear relation to the planning of such municipality and including a comprehensive development plan as defined by section 19‐903, b) prepare and adopt such implemental means as a capital improvement program,  Planning Commission subdivision regulations, building codes, and a zoning ordinance in cooperation with other interested municipal departments, and c) consult with and advise public officials and agencies, public utilities, civic organizations, educational institutions, and citizens with relation to the promulgation and implementation of the comprehensive development plan and its implemental programs. The commission may delegate authority to any such group to conduct studies and make surveys for the commission, make  Planning Commission preliminary reports on its findings, and hold public hearings before submitting its final reports. 2. The commission may, with the consent of the governing body, in its own name: a) make and enter into contracts with public or private bodies, b) receive contributions, bequests, gifts, or grant funds from public or private sources, c) expend the funds appropriated to it by the municipality,  Planning Commission d) employ agents and employees, and e) acquire, hold, and dispose of property. • The commission may on its own authority make arrangements consistent with its program, conduct or sponsor special studies or planning work for any public body or appropriate agency, receive grants, remuneration, or reimbursement for such studies or work, and at its public hearings, summon witnesses, administer oaths, and compel the giving of testimony.  Planning Commission • The governing body shall not take final action on matters relating to the comprehensive development plan (adoption or amendment), capital improvements, building codes, subdivision development, the annexation of territory, or zoning (adoption or amendment) until it has received the recommendation of the Planning Commission;  Planning Commission • However, a recommendation from the PC shall not be required for subdivision of existing lots and blocks whenever (1) all required public improvements have been installed, (2) no new dedication of public rights‐of‐way or easements is involved, (3) and such subdivision complies with the ordinance requirements concerning minimum areas and dimensions of such lots and blocks.  Planning Commission • The PC may grant conditional uses or special exceptions to property owners for the use of their property IF the governing body has, through a zoning ordinance or special ordinance, generally (1) authorized the commission to exercise such powers and (2) has approved the standards and procedures adopted by the PC for equitably and judiciously granting such conditional uses or special exceptions; [§19‐929(3)]  Planning Commission • The power to grant conditional uses or special exceptions shall be the exclusive authority of the commission, EXCEPT that the governing body may choose to retain for itself the power to grant conditional uses or special exceptions for those classifications of uses specified in the zoning ordinance. • If appealed from PC – case goes to District Court, not to the governing body.  Comprehensive Plan What is it you want to preserve or protect anyway? Or . . . How about this?  Comprehensive Plan Specifics • Shall include both graphic and textual material; • Shall be designed to accommodate anticipated long‐range future growth; • Shall be based upon documented population and economic projections;  People QuickFacts Madison County Nebraska Graphic and Textual Material Population, 2009 estimate Population, percent change, April 1, 2000 to July 1, 2009 Population estimates base (April 1) 2000 34,505 ‐2.0% 35,226 1,796,619 5.0% 1,711,265 Persons under 5 years old, percent, 2009 7.8% 7.5% Persons under 18 years old, percent, 2009 25.0% 25.1% Persons 65 years old and over, percent, 2009 15.2% 13.4% Female persons, percent, 2009 50.1% 50.4% White persons, percent, 2009 96.1% 91.1% Black persons, percent, 2009 0.9% 4.6% American Indian and Alaska Native persons, percent, 2009 1.7% 1.1% Asian persons, percent, 2009 0.5% 1.7% Native Hawaiian and Other Pacific Islander, percent, 2009 Z 0.1% Persons reporting two or more races, percent, 2009 0.8% 1.3% Persons of Hispanic or Latino origin, percent, 2009 12.4% 8.4% White persons not Hispanic, percent, 2009 84.6% 83.5% Living in same house in 1995 and 2000, % 5 yrs old & over 54.3% 54.7% Foreign born persons, percent, 2000 5.5% 4.4% Language other than English spoken at home, % age 5+, 2000 9.8% 7.9% High school graduates, percent of persons age 25+, 2000 82.6% 86.6% Bachelor's degree or higher, pct of persons age 25+, 2000 17.0% 23.7% Persons with a disability, age 5+, 2000 5,147 250,534 Mean travel time to work (minutes), workers age 16+, 2000 13.7 18.0 Housing units, 2009 15,176 791,863 Homeownership rate, 2000 65.6% 67.4% Housing units in multi‐unit structures, percent, 2000 23.1% 20.0% Median value of owner‐occupied housing units, 2000 $80,100 $88,000 Households, 2000 13,436 666,184 Persons per household, 2000 2.52 2.49 Median household income, 2008 $43,256 $49,731 Per capita money income, 1999 $16,804 $19,613 Persons below poverty level, percent, 2008 12.1% 10.8% Topographical Map Setback Diagram Soils Map Subdivision Layout “Green Space” Map Zoning Maps – Existing and Future  Comprehensive Plan Specifics • A land‐use element which includes: the proposed general distributions, general location, and extent of the uses of land for agriculture, housing, commerce, industry, recreation, education, public buildings and lands, and other categories of public and private use of land (existing and future land use elements); • The general location, character, and extent of existing and proposed major roads, streets, and highways, and air and other transportation routes and facilities (transportation element);  Comprehensive Plan Specifics • The general location, type, capacity, and area served of present and projected or needed community facilities including recreation facilities, schools, libraries, other public buildings, and public utilities and services (community facilities element); • designed to lessen congestion in the streets; • to secure safety from fire, panic, and other dangers;  Comprehensive Plan Specifics • to promote health and the general welfare; • to provide adequate light and air; • to prevent the overcrowding of land; • to secure safety from flood; • to avoid undue concentration of population; • to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; buildings, places, and districts;  Comprehensive Plan Specifics • to protect property against blight and depreciation; • to protect the tax base; • to secure economy in governmental expenditures; • and to preserve, protect, and enhance historic buildings, places, and districts; and  Comprehensive Plan Specifics • all made with reasonable consideration for the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality.  Notice Requirements • Governing body pursuant to §19‐904 shall provide for the manner in which the comprehensive plan (and zoning regulations) may from time to time amended, supplemented, or changed, and • shall receive the advice of the planning commission before taking definite action on any contemplated amendment, supplement, change, modification, or repeal.  Notice Requirements • No such change or amendment shall become effective until after separate public hearings are held by both the planning commission and the governing body in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be given by publication thereof in a paper of general circulation in such municipality at least one (1) time, ten (10) days prior to such hearing. (§19‐904)  Comprehensive Plan Specifics • The provisions of §19‐905 in reference to individual notice (posting and certified mail) shall not apply in the event of a proposed amendment to the comprehensive plan which is not tied to a specific request for a change in zoning affecting a specific piece of property. If the comprehensive plan is being amended only, then only the requirements of section 19‐904 shall be applicable regarding notice.  Comprehensive Plan • When a new comprehensive plan or a full update to an existing comprehensive plan is developed on or after July 15, 2010, but not later than January 1, 2015, an energy element which: 1) Assesses energy infrastructure and energy use by sector, including residential, commercial, and industrial sectors; 2) evaluates utilization of renewable energy sources; and 3) promotes energy conservation measures that benefit the community. This requirement shall not apply to villages;  Comprehensive Plan • When next amended after January 1, 1995, an identification of subdivisions, industrial tracts, commercial tracts, and other developed areas which are or in the future may be appropriate subjects for annexation, and to determine the standards and qualifications for such areas to be annexed.  Zoning Regulations • designed to lessen congestion in the streets; • to secure safety from fire, panic, and other dangers; • to promote health and the general welfare; • to provide adequate light and air; • to prevent the overcrowding of land; • to secure safety from flood;  Zoning Regulations • to avoid undue concentration of population; • to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; buildings, places, and districts; • to protect property against blight and depreciation; • to protect the tax base;  Zoning Regulations • to secure economy in governmental expenditures; • and to preserve, protect, and enhance historic buildings, places, and districts; • made with reasonable consideration for the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality.  Zoning Regulations • May divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of zoning; • May regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land within the districts; • Regulations shall be uniform for each class or kind of buildings throughout each district; but . . .  Zoning Regulations • Regulations applicable to one district may differ from those applicable to other districts; • No zoning ordinance or regulation shall prohibits the use of land for a proposed residential structure for the sole reason that the proposed structure is a manufactured home IF . . .  Zoning Regulations • such manufactured home bears an appropriate seal which indicates that it was constructed in accordance with the standards of the Uniform Standard Code for Manufactured Homes and Recreational Vehicles, the Nebraska Uniform Standards for Modular Housing Units Act, or the United States Department of Housing and Urban Development.  Zoning Regulations • The city council or village board may require that a manufactured home be located and installed according to the same standards for foundation system, permanent utility connections, setback, and minimum square footage which would apply to a site‐built, single‐family dwelling on the same lot; and may require . . .  Zoning Regulations • have no less than 900 square feet of floor area; • have no less than an 18‐foot exterior width; • roof shall be pitched with a minimum vertical rise of 2 ½ inches for each 12 inches of horizontal run; • exterior material shall be of a color, material, and scale comparable with those existing in residential site‐built, single‐family construction; • have a non‐reflective roof material which is or simulates asphalt or wood shingles, tile, or rock; and • have wheels, axles, transporting lights, and removable towing apparatus removed.  Zoning Regulations • As to manufactured homes ‐ §19‐902 shall not be deemed to supersede any valid restrictive covenants of record. • Subdivision regulations and building, plumbing, electrical, housing, fire, or health codes or similar regulations and the adoption thereof shall not be subject to §§ 19‐901 to 19‐915. (See, §19‐922 re Notice provisions – page 9 of outline)  Zoning Regulations ‐ Notice • Governing body shall provide for the manner in which such regulations and restrictions, and the boundaries of such districts, shall be determined, established, and enforced, and from time to time amended, supplemented, or changed, and • shall receive the advice of the planning commission before taking definite action on any contemplated amendment, supplement, change, modification, or repeal.  Zoning Regulations ‐ Notice • No such regulation, restriction, or boundary shall become effective until after separate public hearings are held by both the planning commission and the governing body in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be given by publication thereof in a paper of general circulation in such municipality at least one (1) time, ten (10) days prior to such hearing. (§19‐904)  Zoning Regulations ‐ Notice • In addition to the publication of the notice therein prescribed, a notice (sign) shall be posted in a conspicuous place on or near the property on which action is pending; • Such notice (sign) shall not be less than 18 inches in height and 24 inches in width with a white or yellow background and black letters not less than 1 ½ inches in height, the notice (sign) shall . . .  Zoning Regulations ‐ Notice • be posted at least 10 days prior to the date of such hearing; • it shall be unlawful for anyone to remove, mutilate, destroy, or change such posted notice prior to such hearing; • If the record title owners of any lots included in such proposed change be nonresidents of the municipality, then a written notice of such hearing shall be mailed by certified mail to them addressed to their last‐known addresses at least 10 days prior to such hearing  Zoning Regulations ‐ Notice • The provisions of this section (§19‐905) in reference to notice shall not apply (1) in the event of a proposed change in such regulations, restrictions, or boundaries throughout the entire area of an existing zoning district or of such municipality, or (2) in the event additional or different types of zoning districts are proposed, whether or not such additional or different districts are made applicable to areas, or parts of areas, already within a zoning district of the municipality, but only the requirements of section 19‐904 shall be applicable.  Zoning Change – Protest • In case of a protest against such change, signed by the owners of 20% or more either of the area of the lots included in such proposed change, or of those immediately adjacent on the sides and in the rear thereof extending 300 feet therefrom, and of those directly opposite thereto extending 300 feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of 3/4 of all the members of the governing body.  Board of Adjustment 5 members + 1 alternate Appointed by Mayor with governing body approval 1 member from planning commission, but can not be the alternate first vacancy after 9/9/95 filled from ETJ, thereafter at least one member from ETJ 3 year terms  BOA – adopt rules (by‐laws) Meetings open to the public (Open Meetings Law applies) BOA keeps minutes of proceedings Vote of each member recorded in minutes Office of the BOA – where? Meets on call of chairperson or as BOA may determine  BOA is a “Quasi Judicial” body BOA has power to administer oaths and compel the attendance of witnesses – sounds “court‐like” Party may appear in person, by agent or by/with an attorney Appeal by any person aggrieved or by any officer, department, board or bureau of the municipality/county affected by any decision of the administrative officer (ZA or City Clerk)  An appeal stays (stops) all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the BOA, after the notice of appeal shall have been filed with him/her, that by reason of facts stated in the certificate a stay would, in his/her opinion, cause imminent peril to life or property. Appeal shall be taken within a reasonable time, as provided by the by‐laws The BOA shall fix a reasonable time for the hearing of the appeal Give public notice (10 days?) thereof, as well as due notice to the parties in interest, and Decide the same within a reasonable time. The concurring vote of four members of the board shall be necessary to: (1) reverse any order, requirement, decision, or determination of any such administrative official (ZA or City Clerk); (2) to decide in favor of the applicant on any matter upon which it is required to pass under any such regulation; (3) to effect any variation in such regulation.  The BOA shall have only the following powers: (1) To hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision, or refusal made by an administrative official or agency based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures; EXCEPT the BOA shall have no authority to decide appeals to decisions made under Neb. Rev. Stat. §19‐ 929 (3), (Conditional use permits ‐ LB973 ‐ 2004); (2) To hear and decide, in accordance with the provisions of any regulation, requests for interpretation of any map; and (3) Where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the adoption of the zoning regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any enacted regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon the owner of such property,  to authorize, upon an appeal relating to the property, a VARIANCE from such strict application so as to relieve such difficulties or hardship, IF such relief may be granted (1) without substantial detriment to the public good and (2) without substantially impairing the intent and purpose of any zoning regulations, but no such variance shall be authorized unless the BOA finds that: (1) The strict application of the resolution would produce undue hardship; (2) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (3) the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and (4) the granting of such variance is based upon reasons of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice. + No variance shall be authorized unless the BOA also finds that: the condition OR situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations. Why PC member on Board of Adjustment?  Nonconforming Uses • The use of a building, structure, or land, existing and lawful at the time of the adoption of a zoning regulation, or at the time of an amendment of a regulation, may, except as provided in this section (§19‐904.01), be continued, although such use does not conform with provisions of such regulation or amendment. (commonly called “grandfather rights” – although term is never mentioned in statute)  Nonconforming Uses • If such nonconforming use is in fact discontinued for a period of 12 months (consecutive?), such right to the nonconforming use shall be forfeited and any future use of the building and premises shall conform to the regulation; EXCEPT: governing body may provide in any zoning regulation for the restoration, reconstruction, extension, or substitution of nonconforming uses upon such terms and conditions as may be set forth in the zoning regulations. . .  Nonconforming Uses • By specifying the period or periods in which nonconforming uses shall be required to cease (“sunset” provision) or • by providing a formula whereby the compulsory termination of a nonconforming use may be so fixed as to allow for the recovery of amortization of the investment. • This does not apply to advertising sign, display or device  Enforcement The local legislative body may provide by ordinance for the enforcement of §§19‐901 to 19‐915, and of any ordinance, regulation, or restriction made thereunder. A violation of such sections or of such ordinance or regulation is hereby declared to be a misdemeanor, and such local legislative body may provide for the punishment thereof by fine of not exceeding one hundred dollars for any one offense, recoverable with costs, or by imprisonment in the county jail for a term not to exceed thirty days.  Enforcement Each day such violation continues after notice of violation is given to the offender may be considered a separate offense. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of said sections or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent (injunction action) such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises.  Questions ? Thank you for attending