6.a Expansion of Nonconforming Uses
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Date of Meeting: March 12, 2024
To: Chair Loeffler and Members of the Planning Commission
From: T.J. Hofer, Consultant City Planner
Re: Memorandum on Expansion of Nonconforming Uses
During the course of a regular Planning Commission meeting, the Commission discussed the
process within the Unified Development Code (UDC) in 153.500.110 Subd. 3 that allows for the
expansion of nonconformities. The Planning Commission asked for staff to review the standard
in consultation with the City Attorney.
ANALYSIS
153.500.110 Subd. 3 of the UDC allows for the expansion of agricultural or single-family
residential buildings and structures through an administrative permit so long as the following
standards are met:
a. The existing structure remains in place and is expanded.
b. Expansion of principal or accessory buildings found to be nonconforming only by reason
of height, yard setback, or lot area may be permitted provided the structural
nonconformity is not increased and the expansion complies with all other performance
standards of this Chapter. An Administrative Permit shall not be issued under this Section
for a deviation from other requirements of this Chapter unless variances are also
approved.
c. The Zoning Administrator finds that any such expansion will not have external negative
impacts upon adjacent properties or public rights-of-way.
d. Long term sewage disposal needs can be met.
These standards apply to all legal nonconformities. Nonconformities can be created through
either the adoption of an ordinance that amends the UDC and changes a standard so that an
existing use, structure, or lot conflicts with the standards of the UDC. An approval of a variance
also creates a legal nonconformity.
When staff reached out to the City Attorney, staff used the following hypothetical:
A variance is approved for a single-family residential dwelling on a riparian lot to allow
for a setback from the OHWL of 75 ft. where 100 ft. is required. Once this variance is
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approved and the dwelling constructed, if the owner wishes to expand the dwelling
laterally along the plane of the 75 ft. setback, they would be able to do so with an
administrative permit.
The City Attorney confirmed that the above hypothetical would be allowed and the Attorney’s
response is attached. The Attorney did note a potential amendment to the UDC to clarify that this
process does not equate to application completion for other approvals, such as a variance.
Staff Analysis
Staff believes the existing process within the UDC allows for a simplified process for the
expansion of legal nonconformities. If the Planning Commission has concerns related to the
standard, staff would recommend each variance be evaluated to potentially include a condition
that may read as:
The building/structure approved with this variance cannot be expanded through the
procedure outlined in 153.500.110, Subd. 3(D).
Staff believes that consideration and inclusion of a condition like this is more beneficial to the
City as a whole. Each variance should be treated as a unique case and evaluated as such,
however, legal nonconformities exist throughout the City. Eliminating the ability for an
administrative review and approval of expansions, that do not increase a nonconformity, will
increase the amount of variance requests that are made to the City substantially in the long run.
COMMISSION ACTION
The Planning Commission should discuss the standards within the UDC and the analysis by staff
and provide direction to staff regarding a change in potential conditions to be placed on
variances or potential amendments to the UDC.
RECOMMENDATION
Staff recommends that the Commission not amend the UDC to eliminate the administrative
review for expansion of legal nonconformities as outlined in 153.500.110, Subd. 3(D).
Staff recommends that the Commission direct staff to address the potential implications of
153.500.110, Subd. 3(D) in all future variance requests, so that potential conditions can be added
to limit the ability to expand certain nonconformities that may raise additional concerns.
Attachments
A. Unified Development Code 153.500.110, Subd. 3
B. Email from Eric Larson, City Attorney, dated February 21, 2024
City of Scandia, MN
CHAPTER 153: UNIFIED DEVELOPMENT CODE (UDC)
SECTION 153.500 ADMINISTRATION AND PROCEDURES
Adopted 09.20.2022 153.500
page-37
153.500.110 NONCONFORMITIES
Subd. 1. Purpose. It is the purpose of this Section to provide for the regulation of nonconforming buildings,
structures, uses, and lots, and to specify those requirements, circumstances, and conditions under which
nonconforming buildings, structures, uses, and lots will be operated, maintained, and regulated. It is necessary and
consistent with the establishment of this Chapter that nonconforming buildings, structures, uses, and lots not be
allowed to continue without restriction. Furthermore, it is the intent of this section that all nonconformities shall
be eventually brought into conformity.
Subd. 2. General Provisions.
Conditional Uses. Any established use, building or lot legally existing prior to the effective date of this
Chapter and which is herein classified by this Chapter as requiring a conditional use permit may be continued
in like fashion and activity and shall automatically be considered as having received conditional use permit
approval. Any change to such a use or building shall however require that a new conditional use permit be
processed according to this Chapter.
Interim Uses. Any established use, building or lot legally existing prior to the effective date of this Chapter,
and which is herein classified by this Chapter as requiring an interim use permit may be continued in like
fashion and activity and shall automatically be considered as having received interim use permit approval. Any
change to such a use or building shall, however, require that a new interim use permit be processed according
to this Chapter.
Threats to General Welfare. Nonconforming buildings, structures, and/or uses, which based upon
documented study and evidence, pose a danger and/or threat to the health, safety, and general welfare of the
community, shall:
Be legally declared a nuisance by the City Council. Upon being identified by the City Council and upon the
owner being notified in writing by the Zoning Administrator, the owner shall provide to the City Council a
documented time schedule and program with rationale to support the proposed amortization of the building,
structure, or use which will result in the termination or correction of the nonconformity.
The termination/correction time schedule shall be based upon, but not be limited to factors such as the
initial investment and the degree of threat or danger being posed.
The acceptability of the time schedule shall be determined by the City Council with right of appeal.
Subd. 3. Nonconforming Buildings and Structures.
Replacement. A lawful nonconforming structure which is removed, destroyed or altered by any means to the
extent that the cost of repair or replacement would exceed fifty percent (50%) of the Assessed Value of the
original structure shall not be replaced, except in conformity with this Chapter. If a replacement structure
cannot be placed on the lot meeting all current standards, the variance procedure must be followed. For the
purposes of this Chapter, the term “Assessed Value” shall mean the market value of the property as
determined by the current records of the City Assessor for the year in which the damage was done.
Restoration of buildings destroyed by fire or peril. Unless a building permit has been applied for within 180
days of when a property is damaged, no lawful nonconforming building or structure which has been
destroyed by fire or other peril to the extent of greater than 50% of its market value, as indicated in the
records of the county assessor at the time of damage, shall be restored, except in conformity with the
regulations of this Chapter. If a building permit has been applied for within 180 days of when the property is
damaged, the City may impose reasonable conditions when issuing the permit in order to mitigate any newly
created impact on adjacent property or water body.
Alterations. Alterations to (e.g., repair, normal maintenance, remodeling) of a lawful nonconforming building
or structure that are valued at 50% or less of the appraised value of the original nonconforming building or
structure may be undertaken provided:
The alterations do not expand the building size.
City of Scandia, MN
CHAPTER 153: UNIFIED DEVELOPMENT CODE (UDC)
SECTION 153.500 ADMINISTRATION AND PROCEDURES
Adopted 09.20.2022 153.500
page-38
The alterations do not change the building occupancy capacity, or parking demand or sewage treatment
requirements.
The alterations do not increase the nonconformity of the building or the use.
Expansion of Nonconforming Buildings or Structures.
Agricultural or Single Family Residential Buildings and Structures. The expansion of lawful
nonconforming agricultural or single family residential buildings and structures may be approved
through the Administrative Permit process subject to the provisions of Section [153.500.050 and
153.500.060] of this Chapter, provided that:
a. The existing structure remains in place, and is expanded.
b. Expansion of principal or accessory buildings found to be nonconforming only by reason of height,
yard setback, or lot area may be permitted provided the structural nonconformity is not increased
and the expansion complies with all other performance standards of this Chapter. An
Administrative Permit shall not be issued under this Section for a deviation from other
requirements of this Chapter unless variances are also approved.
c. The Zoning Administrator finds that any such expansion will not have external negative impacts
upon adjacent properties or public rights-of-way.
d. Long term sewage disposal needs can be met.
e. Commercial, Industrial, Public, Semi-Public, and Multiple Family Structures. Lawful nonconforming
commercial, industrial, public, semi-public, and multiple family structures may be expanded on the
same lot upon approval of a conditional use permit, provided that:
Expansion of principal or accessory buildings found to be nonconforming only by reason of
height, yard setback, or lot area may be permitted provided the structural nonconformity is not
increased and the expansion complies with all other performance standards of this Chapter. A
Conditional Use Permit shall not be issued under this Section for a deviation from other
requirements of this Chapter unless variances are also approved.
The request for Conditional Use Permit shall be evaluated based on standards set forth in
Section [153.500.050] of this Chapter.
Long term sewage disposal needs can be met.
f. Buildings or Structures in the Floodplain Overlay District. Notwithstanding paragraphs (A), (B), (C) and
(D) above, any restoration, alteration, replacement, repair, or expansion of a building or structure
located within the floodplain overlay district shall be regulated to the extent necessary to maintain
eligibility in the National Flood Insurance Program, and in no case shall increase potential flood
damage or increase the degree of obstruction to flood flows in the floodway.
Subd. 4. Nonconforming Uses.
Effective Date. The lawful use of buildings or land existing at the effective date of this Section which does
not conform to the provisions of this Chapter may be continued, unless:
The nonconformity or occupancy is discontinued for a period of more than 1 year.
If a structure used for any nonconforming use is destroyed by fire or other peril to the extent of greater
than 50% of its market value, as indicated in the records of the county assessor at the time of damage,
and no building permit has been applied for within 180 days of when the property is damaged. If a
building permit has been applied for within 180 days of when the property is damaged, the City may
impose reasonable conditions when issuing the permit in order to mitigate any newly created impact on
adjacent property or water body.
City of Scandia, MN
CHAPTER 153: UNIFIED DEVELOPMENT CODE (UDC)
SECTION 153.500 ADMINISTRATION AND PROCEDURES
Adopted 09.20.2022 153.500
page-39
Notwithstanding [f] above, any structure used for a nonconforming use located in the floodplain overlay
district that is destroyed by fire or other peril to the extent of greater than 50% of its market value, as
indicated in the records of the county assessor at the time of damage, shall be regulated to the extent
necessary to maintain eligibility in the National Flood Insurance Program, and in no case shall be
continued or reestablished in a manner that results in potential flood damage or obstructs flood flows in
the floodway.
Continued Use. A lawful, nonconforming use may be continued, including through repair, replacement,
restoration, maintenance, or improvement; provided, however, that no such nonconforming use of land
shall be enlarged or increased, including volume, intensity or frequency of use, nor shall any such
nonconforming use be expanded to occupy a greater area of land than that occupied by such use at the
time of the adoption of this Chapter, nor shall any such nonconforming use be moved to any other part
of the parcel of land upon which the use was conducted at the time of the adoption of this Chapter.
Changes to Nonconforming Uses.
a. When a lawful nonconforming use of any structure or land in any district has been changed to a
conforming use, it shall not thereafter be changed to any nonconforming use.
b. A lawful nonconforming use of a structure or parcel of land may be changed to lessen the
nonconformity of use. Once a nonconforming structure or parcel of land has been changed, it shall
not thereafter be so altered to increase the nonconformity.
Subd. 5. Nonconforming Lots. A legal nonconforming, substandard lot of record that is vacant may be
developed for one single family detached dwelling without variances and upon approval of an Administrative
Permit, provided that:
The lot was legally established in accordance with all applicable zoning and subdivision requirements existing
at the time of its creation and is a separate, distinct tax parcel.
Development of the lot is consistent with the Comprehensive Plan and the lot is properly zoned for single
family use.
The lot shall be at least 66% of the dimensional standards for lot size and lot width as required by the Base
Zoning District and any applicable Overlay District.
The lot has frontage and access on an improved public street or an approved private road. To be considered
an approved private road, the City Council must, by resolution, find that the road is capable of supporting
emergency vehicles and that provisions exist for on-going maintenance of the road.
The lot must be suitable for the installation of sewage treatment system that is permitted by the Washington
County Subsurface Sewage Systems (SSTS) rules and regulations.
All structure and septic system setbacks shall be met.
Impervious surface coverage must not exceed 25 %.
If in the case of two or more contiguous lots or parcels of land under a single ownership, any individual lot or
parcel does not meet the minimum requirements of this Chapter, each individual lot or parcel cannot be
considered as a separate parcel of land for purposes of sale or development. Such lots must be combined
with adjacent lots under the same ownership so that the combination of lots will equal one or more
conforming lots as much as possible, unless each individual lot is at least 66% of the dimensional standards
for lot size and lot width and meets the requirements of paragraphs (D) through (G), above.
An existing conforming use or building on a lot of substandard lot area or lot width may be restored, altered,
replaced, repaired, or expanded provided such restoration, alteration, replacement, repair, or expansion
complies with all other provisions of this Chapter. A nonconforming lot shall not be reduced in size.
A conforming lot shall not be reduced in size so that it would become nonconforming in any aspect of this
Chapter.
City of Scandia, MN
CHAPTER 153: UNIFIED DEVELOPMENT CODE (UDC)
SECTION 153.500 ADMINISTRATION AND PROCEDURES
Adopted 09.20.2022 153.500
page-40
Overlay Districts. Nonconforming buildings and uses as described in the Shoreland Management Overlay
District and the Floodplain Management Overlay District contained in Chapters 155 and 156 shall be subject
to the applicable regulations and standards relating to such buildings and uses in this Chapter. Where any
regulations are found to be inconsistent, the more restrictive of the regulations shall apply.
153.500.120 VIOLATIONS, ENFORCEMENT AND PENALTIES
Subd. 1. Enforcement. In case any subdivision, building or structure is erected, constructed, reconstructed,
altered, repaired, converted, or maintained, or any building, structure or land is used in violation of this Section, the
Zoning Administrator, in addition to other remedies, may institute any proper criminal action or proceedings in
the name of the City of Scandia, and hereby shall have the powers of a police officer to prevent such unlawful
subdivision, erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain
or correct such violations, to prevent the occupancy of said building, structure or land, or to prevent any illegal act,
conduct, business or use in or about said premises.
Subd. 2. Penalties. Any person who violates a provision of this Chapter is guilty of a misdemeanor and, upon
conviction thereof, shall be fined or penalized not more than the maximum levels established by the State of
Minnesota for misdemeanor offenses. Each act of violation and every day on which a violation occurs or continues
is a separate violation.
3/6/24, 11:10 AM Mail - TJ Hofer - Outlook
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RE: Expansion of Nonconformities
Eric Larson <elarson@eckberglammers.com>
Wed 2/21/2024 1:35 PM
To: TJ Hofer <tj.hofer@bolton-menk.com>; Kyle Morell <k.morell@ci.scandia.mn.us>
TJ and Kyle,
Thanks. Interesting. I have never seen a zoning code that cannot be improved on, revised, or changed in some manner and
al l other subject to interpretation and analysis and none can capture all possible situations. I guess that is what keeps us in
business. Okay, now, for the tasks at hand.
Variance. Whenever a property is subject to a variance and a property owner submits an application respecting the
property, the variance probably should checked to make sure the proposal complies with any variance requirements. But
the mere fact by itself that a variance has been issued does not mean that all subsequent proposals must go through the
Planning Commission.
Nonconformities and City Code. Rather, consistent with my interpretation UDC section 153.500.100, Subd. 3(A), (B), and
(C), Nonconforming Buildings and Structures, here as wel l, I would engage in a narrow interpretation of Section
153.500.110, Subd. 3(D).
Summary Conclusion: I believe Section 153.500.110, Subd. 3(D) is meant to permit property owners the right to
upgrade/expand legal , nonconforming structures on their property as easily and ef iciently as possible as l ong as the
expansion (1) does not expand a structural nonconformity, and (2) also meets Scandia City Code irrespective of the
structure nonconforming status. Application of the Administrative Permit process, however, should be consistent with the
general rules that nonconformities cannot be expanded absent a variance and nonconformities eventually should become
conforming.
That written, per below, conceptually, Section 153.500.110, Subd. 3(D) seems relatively straightforward but maybe an
actual application may demonstrate otherwise. Here is my analysis of Section 153.500.110, Subd. 3(D).
Section 153.500.110, Subd. 3(D). Expansion of Nonconforming Buildings or Structures.
Per the expressed language of Section 153.500.110, Subd. 3(D), an expansion of either an Agricultural Buil ding/Structure or
a Singl e Family Residential Building or structure that is legal, nonconforming can occur either via:
(1) an Administrative Permit or
(2) a Variance.
Stated otherwise, a variance will be required if the expansion does not meet the administrative permit requirements. Also,
this Administrative Permit process is limited to Single Family or Agriculture buildings or structures, al l other buildings or
structures, at l east under this provision, are not entitl ed to the Administrative Permit process.
Furthermore, in my opinion, a completed application must be iled and all six requirements within section 153.500.110(3)
(D) must be met in order to be eligible for the Administrative Permit process.
Complete Application. The property owner must stil l complete the application in full as required under Section
153.500.50, Common Procedures for Land Use Applications, and Section 153.500.60, Supplemental Review Procedures for
Land Use Applications.
I think this is important, because the application is probably subject to section 15.99 and, therefore, the City has 15 days to
notify the applicant that the appl ication is incomplete. The City does not want to later deny, administratively or otherwise,
based on missing information, because the property owner may be entitled to the expansion.
3/6/24, 11:10 AM Mail - TJ Hofer - Outlook
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In short, the Administrative Permit process may expedite the review and decision-making process, but section 153.500.110,
Subd. 3(D), does not decrease or in any manner reduce the application requirements. Thus, the application should be
completed in full as if it was not eligible for an Administrative Permit. What is not clear to me in section 153.500.060 is
whether the applicant must establish “practical dif iculties” in the application. If I was to revise the UDC, I would probably
add a provision that compl etion for an Administrative Permit does not equate to application completion for other City
approvals, such as variances.
Expansion and Administrative Permit Process. To be eligibl e for an Administrative Permit, each expansion application
must comply with all of the following six requirements.
1. Existing Structure remains in its current location and may be expanded.
This sentence sets out the irst limitation, which is that the expansion permission applies to only existing
structures and the existing structure must remain in its current location, may not be moved or relocated. In
other words, new structures require a variance.
2. Principal or Accessory Structures.
The right to expand is limited to structures that are legally nonconforming due to height, yard setback or lot
area. If the nonconformity is other than height, yard setback or l ot area, then a variance is required.
Furthermore, if property meets the legal conformity eligibil ity requirement, the expansion cannot increase any
structural nonconformity. A structure may well have many nonconformities, one of which is heigh, yard
setback, or lot area, but this subparagraph makes it clear that an Administrative Permit may not permit an
expansion of any and all structural nonconformities. A variance wil l have to obtained for such expansions.
As a resul t, in my view, Section 153.500.110, Subd. 3(E)(I)(b) is a major and probably the key requirement or
limitation, because the section has two important limitations (1) nonconformity is height, yard setback or l ot
area, and (2) the expansion cannot increase any structural nonconformity, i.e. is not limited to height, yard
setback or lot area.
Question: Woul d any existing structure be either a principal or accessory structure or are there existing
structures that are de ined something other than principal or accessory structures? I presume the former, but if
I am wrong, let me know.
3. Zoning Administrator.
Even if Subd. 3(E)(I)(a) and (b) are met, then the proposed expansion must al so be reviewed by Zoning
Administrator to ensure no negative impacts upon adjacent properties or public rights-of-way. The Zoning
Administrator is going to have to address this requirement on a case-by-case basis.
4. Long term sewage disposal needs can be met.
I think this is self-explanatory, but we can discuss if needed.
5. Commercial, Industrial , Publ ic, Semi-Publ ic, and Multi Family Structures.
This is an interesting subdivision since the initial requirement is either Single Family Residential or
Agricultural. As a result, section (D)(1)(e) applies to Agricul tural Buildings or Structures that are also
commercial, industrial , public, semi-public or mul ti-family structures. I am thinking Subd. (E)(I)(e) will be
rarely triggered if at all.
6. Floodplain Overly District.
I think this is self-explanatory.
In the inal analysis, as noted in the beginning, I agree with you both. In the main, UDC Section 153.500.110,
Subd. 3(D) works. It is meant to permit property owners the right and ability to upgrade/expand legal,
nonconforming structures on their property as easily and ef iciently as possible as long as the expansion (1)
does not expand a structural nonconformity, and (2) meets Scandia City Code irrespective of the structure’s
nonconforming status.
3/6/24, 11:10 AM Mail - TJ Hofer - Outlook
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I hope this helps, but as always, follow up if needed.
Eric
Eric Larson
Attorney
Direct: 651-351-2137 | Fax: 651-439-2923
eckberglammers.com
|||
From: TJ Hofer <tj.hofer@bolton-menk.com>
Sent: Wednesday, February 21, 2024 9:46 AM
To: Eric Larson <elarson@eckberglammers.com>
Cc: Kyle Morell <k.morell@ci.scandia.mn.us>
Subject: Expansion of Nonconformi es
Eric,
There's another concern that's come up regarding nonconformi es. The Planning Commission is concerned about
153.500.110 Subd. 3 (D).
(D) Expansion of Nonconfor ming Buildings or Structures.
1. Agricultural or Single Family Residential Buildings and Structures. The expansion of lawful
nonconforming agricultural or single family residential buildings and str uctures may be approved through
the Administrative Per mit process subject to the provisions of Section [153.500.050 and 153.500.060] of
this Chapter, provided that:
a. The existing str ucture remains in place, and is expanded.
b. Expansion of principal or accessory buildings found to be nonconfor ming only by reason of height,
yard setback, or lot area may be per mitted provided the structural nonconfor mity is not increased
and the expansion complies with all other performance standards of this Chapter. An
Administrative Per mit shall not be issued under this Section for a deviation from other requirements
of this Chapter unless variances are also approved.
c. The Zoning Administrator finds that any such expansion will not have external negative impacts
upon adjacent properties or public rights-of-way.
d. Long term sewage disposal needs can be met.
e. Commercial, Industrial, Public, Semi-Public, and Multiple Family Structures. Lawful nonconfor ming
commercial, industrial, public, semi-public, and multiple family structures may be expanded on the
same lot upon approval of a conditional use per mit, provided that:
i. Expansion of principal or accessor y buildings found to be nonconforming only by reason
of height, yard setback, or lot area may be permitted provided the str uctural nonconformity is
not increased and the expansion complies with all other performance standards of this Chapter.
3/6/24, 11:10 AM Mail - TJ Hofer - Outlook
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A Conditional Use Per mit shall not be issued under this Section for a deviation from other
requirements of this Chapter unless variances are also approved.
ii. The request for Conditional Use Per mit shall be evaluated based on standards set forth in
Section [153.500.050] of this Chapter.
iii. Long ter m sewage disposal needs can be met.
f. Buildings or Structures in the Floodplain Overlay District. Notwithstanding paragraphs (A), (B), (C) and
(D) above, any restoration, alteration, replacement, repair, or expansion of a building or str ucture
located within the floodplain overlay district shall be regulated to the extent necessary to maintain
eligibility in the National Flood Insurance Program, and in no case shall increase potential flood
damage or increase the degree of obstr uction to flood flows in the floodway.
First off, to establish what this means: In simplified terms, I think this standard allows for any nonconforming
building or structure of an ag or residen al structure to expand with an administra ve permit, so long as
condi ons a. through d. are met (I think e. and f.). I believe this includes legal nonconformi es created through a
variance. I'll detail the concerns from the PC with a hypothe cal/basically a real example:
Thank you,
T.J. Hofer
he/him
Planner II
Bolton & Menk, Inc.
3507 High Point Drive North
Bldg. 1 Suite E130
Oakdale, MN 55128
Phone: 612-271-6984
www.Bolton-Menk.com