Durable Growth, Government

From today to TOD – non-conforming uses

by rosipaw, on Flickr

by rosipaw, on Flickr

When I was in third grade, I posed a question to my father.  “If time is the fourth dimension, then what’s the fifth dimension?”  This would have been in 1962, so I wasn’t asking about the group that would record “Aquarius/Let the Sunshine In” later in the decade.

It may seem a precocious question for a third-grader, but I had my moments.  My father, to his credit, wasn’t irritated by the question and came up with a plausible, if unhelpful, answer, “We really don’t know for sure if time is the fourth dimension.”  It wasn’t a good answer, but it took me years to understand that.  And in the meantime, it shut me up.

I mention this because, fifty years later, I realize that time truly is the fourth dimension in land use.  Although we grapple ineptly with that truth much as my father did.

Zoning codes, and their urbanist cousin SmartCodes, are maps of how we want our community to eventually look.  But the word “eventually” is key.  We’re not able to move from today to complete compliance in one giant step.  Our world, especially when it’s a world of free enterprise and personal liberties, is a world of incremental change.

And so we end up with uses in place, many of which are financially viable, but which don’t comply with the ultimate goal.  We call these uses “non-conforming”.  And we struggle with how to handle non-conforming uses.

This problem is true for all land uses.  But it’s particularly troublesome when the coming land use represents a major paradigm adjustment.  Such as transit-oriented development (TOD).

In general, we acknowledge the right of non-conforming uses to continue as they are until financial realities allow the use envisioned in the zoning code or SmartCode.  But we don’t allow non-conforming uses to expand, presumably for fear that the expanded use would perform better financially and that the day of eventual transition would be deferred.

It seems a reasonable policy, at least from an idealistic, non-site specific viewpoint.  Unfortunately, the real world is practical and site-specific.  A couple of examples of this uncomfortable truth arose during the final meeting of the Petaluma Station Area Plan Citizens Advisory Committee.  The two examples served to illuminate the role of time in land planning.

South Petaluma Boulevard Carwash

South Petaluma Boulevard Carwash

The first was a gas station on Petaluma Boulevard South.  The station is within the area of the Central Petaluma Specific Plan, for which the SmartCode is the governing document.  The station is within a transect (the SmartCode equivalent of zones) for which gas stations aren’t permitted.  It’s a reasonable prohibition. The site, along an arterial along which transit service will likely increase, is best suited for dense, multi-story use in an urban future.  But that future isn’t yet here.

In the interim, the station owner would like to improve his facility.  He has a poorly used and outdated do-it-yourself carwash, which he’d like to replace with a small convenience store.

The convenience store would be consistent with the SmartCode.  But the gas station isn’t.  And therefore the convenience store would be an expansion of a non-conforming use, which is prohibited.

The proposed convenience store posed a planning conundrum.  But before the committee could discuss it, another example shined an even brighter light on the dilemma.

To the northwest of the Petaluma Station Area, on the opposite side of E. Washington Boulevard and mostly behind a row of streetfront retail, is a cluster of aging industrial buildings.  The area is accessed by public rights-of-way, although most of the streets, if they were ever paved, have long returned to a series of deep potholes.

Petaluma Industrial Neighborhood

Petaluma Industrial Neighborhood

The area, which many in Petaluma have probably never visited, may seem derelict.  But financially viable uses remain active.

The SmartCode transect calls for mixed-use residential, similar to the station area.  And that’s the problem.  The station area itself will provide a supply of mixed-use residential that may be sufficient for twenty years.  So the area on the other side of E. Washington Boulevard will likely remain industrial for two decades.  But it’s unlikely that any industrial area can remain viable for that long without modifications.  Modifications that are prohibited because the uses are non-conforming.

The owner of several of the buildings made exactly that point to the advisory committee.  He claimed that he must make modifications to one of his buildings, but the SmartCode prohibits the changes.  He asked for relief.

Petaluma Industrial Buildings

Petaluma Industrial Buildings

I’m deeply intrigued by the industrial area.  In the first advisory committee, almost two years ago, I invoked Jane Jacobs’ dicta that communities need low-cost space for start-up businesses, which can’t afford space in new buildings, to take root and to create new economic vitality.  I suggested that the industrial area could fill that need.

I’m unsure what kinds of uses will make sense for the area over the next twenty years.  I find myself using the phrase “artisanal industrial”, which might include wine-making, software backoffices, beer-brewing, or custom iron work.  Given the location only a few blocks from a new train station, it seems a good place to attract members of the “creative class”, who will deliver the new ideas that a community needs.

Among the committee members, I was perhaps most strongly in favor of giving some leeway to non-conforming uses.  Others were legitimately concerned that additional flexibility might create loopholes through which undesirable results could pass.  In the end, we only gave direction to City staff to consider the conundrum.  It was the final committee meeting, so any further discussion will happen at the Planning Commission or City Council.  I’ll be watching with interest.

Regardless of the results of this particular discussion, time will remain a key element in land use, especially during times of transition.  And there are few areas of land use for which the transitions are more significant than the areas around TODs.

Even Dad would agree that time is the fourth dimension for TOD land use.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. – Dave Alden (davealden53@comcast.net)

Written by Dave Alden

Dave Alden

Dave Alden is a Registered Civil Engineer. A University of California graduate, he has worked on energy and land-use projects in California, Oregon, and Washington. He was also the president of a minor league baseball team for two seasons. He lives on the west side of Petaluma with his wife and two dogs. The blog that he writes can be found at http://northbaydesignkit.blogspot.com.

5 comments to From today to TOD – non-conforming uses

  • voltairesmistress

    Petaluma is lucky to have such a thoughtful person helping to shape its future.

  • Dan

    Dave,

    Good article.

    What are the criteria for granting a Variance under the code?

    • Dan, variances are intended for differing from established, usually numeric, standards. For having an 8-foot setback when 10 feet is required. Or for building a 40-foot tall building when 35 feet is the maximum in the code.

      If a different land use is proposed than permitted, there are usually two possibilities. One, the use might require a Conditional Use Permit (CUP), which is a more elaborate and rigorous permitting process. Two, the use can be strictly prohibited, in which case the only option is to propose changes in the governing zoning codes.

      Both of the situations described above are in the prohibited category.

  • It sounds like the refusal to allow the convenience store in this situation isn’t a fault of the Petaluma SmartCode, except to the extent that it relies on crude non-conforming provisions from an old zoning ordinance. Those provisions require as much thought and care as the urban design provisions when drafting urbanist codes.

    There is NO reason why Petaluma’s non-conforming provisions couldn’t be modified to say that non-conforming uses can remain while a site is improved to add new conforming buildings.

    Most zoning codes treat all non-conforming uses as evils to be tolerated until the day they can be squeezed out of existence. More nuanced treatment of non-conforming uses can be calibrated; the precise terms will depend on the situation on the ground in each community.

    • Bill, thanks for writing. I agree with you completely. And I love the phrase “More nuanced treatment of non-conforming uses can be calibrated.”

      I understand why it’s often comfortable to rely on black-and-white standards, but world is often grey. And the interpretation of grey areas to the overall benefit of the community should be part of the job description for planning staffs. I believe in the dicta “If your Planning Director isn’t at risk of being fired at least once a year, then he’s not doing his job.”