NON-CONFORMING USE SITE PLAN REVIEW
N-08-04-04: Louise’s, a site plan for an expansion of a non-conforming use for a new rear 2nd story deck located at 1009 Massachusetts Street. Submitted by Paul Werner Architects for Brad Ziegler, business owner. Emick Holdings LC is the property owner of record.
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Current Zoning and Land Use: |
C-3 (Central Commercial District); existing licensed premise. |
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Surrounding Zoning and Land Use: |
C-3 (Central Commercial District) to the north, south, east and west; developed with commercial, office, parking lots and restaurant uses. |
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Site Summary: |
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Gross Area: |
2860 gsf |
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Existing Building Coverage: |
1724 gsf + 809 gsf rear patio |
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Proposed 2nd Floor Deck |
1051 gsf |
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Off-Street Parking Required |
Not required in C-3 District |
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Off-Street Parking Provided: |
Not required in C-3 District |
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Staff Recommendation: Planning staff recommends (A) the City Commission grant the authority to enlarge the building devoted to a non-conforming use as the extension is necessary and incidental to the existing use of said building and the conditions set forth in section 20-1303 (Expansion of Non-Conforming Uses) are met; and (B) approval of the site plan for the expansion of the non-conforming use subject to the following condition: 1. Execution of a site plan performance agreement per Section 20-1433.
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C. STAFF REVIEW
In June 2003, the applicant proposed removal of a small second story deck and construction of a new covered second story deck containing approximately 1,050 square feet. This improvement was reviewed by staff in error as a site plan revision [SP-06-43-03] and administratively approved, rather than as an expansion of a non-conforming use. According to Section 20-1303, expansions of non-conforming uses must be approved by the City Commission.
Non-Conforming Use
In 1994, the City Commission approved an ordinance (No. 6527) requiring licensed premises to derive from the sales of food consumption on the licensed premises not less than fifty-five percent (55%) of all the licensed premises’ gross receipts for a calendar year from sales of food and beverages on such premises. (20-1453) Because Louise’s has been a licensed premise with a valid liquor license since 1989 and has not been required to report food sales in relation to the 55% rule, it is considered to be a non-conforming use created by the adoption of Ordinance 6527 and is subject to the non-conforming use provision of the Zoning Code (20-1302-1303).
The second story deck was constructed in accordance with the plans approved last summer and is now ready to be utilized. Staff became aware of the processing error and has reviewed the expansion in accordance with 20-1302 and 20-1303 so that it may be appropriately approved prior to occupancy.
20-1302. LIMITATIONS ON NON-CONFORMING USES.
(a) No non-conforming building, structure, or use of land shall be changed, extended, enlarged, or structurally altered unless:
(1) Such change is required by law or order; or,
(2) The use thereof is changed to a use permitted in the district in which such building or land is located; or,
(3) Authority is granted by the City Commission to change the use or occupancy, provided the commission finds the use is within the same or more restricted classification as the original non-conforming use and such change of use or occupancy will not tend to prolong and continue the non-conforming use; or,
(4) Authority is granted by the City Commission to enlarge or complete a building devoted to a non-conforming use where such extension is necessary and incidental to the existing use of such building and the conditions set forth in section 20-1303 (Expansion of Non-Conforming Uses) are met; or,
(5) Authority has been granted by the City Commission to extend a non-conforming use throughout those parts of a building which were manifestly designed or arranged for such use prior to the date when such use or building became non-conforming, if no structural alterations, except those required by law, are made therein. (Code 1979, 20-1002; Ord. 5034)
Finding: Section 20-1302 identifies the limitations on non-conforming uses and requires that no change or extension of the non-conforming use shall occur unless one of the five criteria is met. Sub section (a)(4) allows the City Commission to grant the authority to enlarge a building devoted to a non-conforming use “where such extension is necessary and incidental to the existing use” and if the conditions in Section 20-1303 are met. The replacement of the existing rear deck with a new covered second story deck will provide an alternative serving area for the Louise’s patrons to utilize. The Fire/Medical Department has indicated that the existing building occupancy load (134 persons) will not change (or increase) with this improvement. Therefore, the second story deck does not expand the number of patrons served by the business and is incidental to the existing non-conforming use of the building.
20-1303. EXPANSION OF NON-CONFORMING USES.
Non-conforming uses of buildings and structures or non-conforming buildings, structures and their uses may be expanded according to the provisions of section 20-1302 (Limitations on Non-Conforming Uses) and under the terms of this section as follows:
(b) Non-conforming uses in non-residential areas when the use:
(1) Does not exceed 100 percent of the floor area of the original use;
(2) Does not intrude into a residential zoning district;
(3) Is such that the expansion does not exceed the setbacks or height limitations of the district; and,
(4) Provides for off-street parking and loading as required in sections 20-1211 and 20-1212. (Ord. 5034)
Summary of square footage and usage provided by field measurements from the applicant and previous Planning Office records:
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1989 |
Louise’s Downtown established |
1724 gsf/ 1183 nsf for bar in 1st floor of building |
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1990 |
Site plan approved for rear patio |
809 gsf |
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1994 |
Business becomes non-conforming (Ord. No. 6527) |
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1995 |
CC approved expansion of non-conforming use to include 2nd floor interior |
1512 gsf/ 1078 nsf for bar use in 2nd floor |
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2003 |
Staff administratively approved expansion to include 2nd floor deck |
1051 gsf/ 828 nsf expansion for 2nd floor deck |
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2004 |
Proposal for CC approval of expansion of non-conforming use to permit 2003 expansion approved in error |
1051 gsf/ 828 nsf expansion for 2nd floor deck and reduction of 1st floor patio area to 599 nsf |
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Total Expansion 2563 gsf / 1696 nsf = 101.2% of original gsf use area and 85.1% of original nsf use area The maximum occupancy of 134 persons does not change. |
Finding: The proposed expansion does not increase the maximum occupancy permitted in this business, but instead provides an alternate location for the patrons to occupy. The gross square footage numbers slightly exceed the 100% increase permitted in Section 20-1303; however, the net square footage (publicly accessible areas) meets the provisions established in Section 20-1303. The existing licensed premise currently contains 3688 square feet of net useable area (1992 net square feet of original use area) and the proposed expansion results in a change of 1696 net square feet of useable area. This is a total expansion of 85% of the net floor area of the original use. The proposed use does not intrude into a residential zoning district, nor does it exceed the setbacks or height limitations of the district. No additional parking is required because the C-3 zoning district does not require off-street parking.
Historic Resources Commission Review
The subject property required Certified Local Government Review because it is located in the environs of the Watkins National Bank Building (1047 Massachusetts), National Register of Historic Places.
The applicant submitted an application (DR-08-60-03 – revision to DR-06-50-03) to the Historic Resources Commission for the proposed deck addition. The Historic Resources Commission reviewed and approved the proposed project on September 18, 2003 with the following condition: (a) the applicant provide complete construction documents with material notations to be reviewed and approved by the Historic Resources Administrator prior to release of a building permit. Plans were reviewed and released to Neighborhood Resources on June 2, 2004.
Downtown Conservation Overlay District
The subject property (1009 Massachusetts Street) is located in the Downtown Urban Conservation Overlay District. The proposed site plan and exterior modifications were reviewed as part of the 2003 design review and meet the intent of the Downtown Design Guidelines.
D. Findings
Per Section 20-1432 staff shall first find that the following conditions have been met:
(a) That the proposed use is a permitted use in the district in which the property is located;
The subject property is located in the C-3 (Central Commercial) District. This district is designed to be the Central Business District or the downtown shopping and employment center for the community and surrounding trade area. The district is intended to provide space for retailing of all kinds, professional offices, financial institutions, amusement facilities, transient residential facilities, and limited wholesaling and warehousing. The licensed premise use is an existing non-conforming use created in 1994 through the adoption of Ordinance No. 6527.
(b) That the proposed arrangement of buildings, off-street parking, access, lighting, landscaping and drainage is compatible with adjacent land uses;
The subject property is an existing licensed premise use. This site plan does not propose any modification other than the rear second story deck improvements and patio fencing.
(c) That the vehicular ingress and egress to and from the site and circulation within the site provides for safe, efficient and convenient movement of traffic not only within the site but on adjacent roadways as well;
There is no off site parking associated with this property. The site is designed as a pedestrian accessible business.
(d) That the site plan provides for the safe movement of pedestrians within the site;
Public sidewalks accommodate safe pedestrian movement between the public street and the commercial business.
(e) That there is a sufficient mixture of grass, trees, and shrubs within the interior and perimeter (including public right-of-way) of site so that the proposed development will be in harmony with adjacent land uses and will provide a pleasing appearance to the public. Any part of the site plan area not used for buildings, structures, parking, or accessways shall be landscaped with a mixture of grass, trees and shrubs;
This condition does not apply to the submitted site plan, which is for the addition of a deck. There is no landscape requirement associated with this site plan for the C-3 District. Landscaping exists on the public right-of-way as part of the public sidewalk area.
(f) That all outdoor trash storage areas are screened and are in accordance with standards as prepared by the department of public works;
No changes are proposed for the existing service currently located in the adjacent alley.
(g) That the site plan takes into consideration existing improvements or physical alterations that have been made to prepare the site for development.
No modifications or grading is required for proposed improvement.
E. CONCLUSION
As noted above, the applicant submitted the proposed second story deck and this improvement was processed in error, without first receiving City Commission approval for the expansion of the non-conforming use. The applicant received building permits in good faith after submitting necessary details as required in the Historic Resources Commission approval. While the improvement was under construction, staff discovered the error and notified the owner that the deck would not be able to be used until the City Commission had approved the expansion. The addition of the exterior deck does not increase the maximum occupancy permitted on site. The net square footage of the addition meets the criteria established in Section 20-1303.
In staff’s opinion, the site plan for the expansion of a non-conforming use is in conformance with the requirements of the Zoning Ordinance, Chapter 22 of the Code of the City of Lawrence and the Downtown Design Guidelines. Staff recommends approval of the proposed site plan for an expansion of a non-conforming use.