The "Hybrid Option"

In April, to assist the Common Council Legal Committee in seeing a way forward in responding to the request from Stewart's Shops that the City adopt its proposed Green Street Overlay District, city attorney Andy Howard outlined three options: the committee could recommend that the Council deny the request; it could recommend the request be granted; or it could propose a different solution. It was agreed that the third option--the "hydrid option"--be pursued. Howard would draft an amendment to the zoning code that, it was suggested, would address not only the Stewart's issue but also the problem the previous Council hoped to remedy with the ill-fated Local Law No. 9 for 2017: buildings with a history of commercial uses ending up in residential districts where the permitted commercial uses are very limited.

At the Legal Committee meeting this past Wednesday, Howard presented the draft amendment. As proposed, it would revise Section 325-8 of the zoning code--the section of the code pertaining to R-2 residential districts--and would, "in order to encourage the upkeep, renovation and continuation of nonconforming uses presently existing in the R-2 District," allow for "the renovation, replacement and/or expansion of currently existing nonconforming uses within said R-2 District." 

There were questions about the proposed amendment. The one that got the most attention was whether or not "replacement and/or expansion" meant that nonconforming uses could expand onto adjacent properties, which is precisely what Stewart's wants to do. Committee member Rich Volo expressed concern about allowing expansion to exceed the lot currently occupied by a nonconforming use. Committee chair John Rosenthal spoke of the need to control expansion if it were to be allowed to spread to adjacent sites. There was also a question about whether this amendment, tailored as it was for R-2 districts, would also apply to R-3 and R-4 districts.

As he had in April, Howard outlined three options for going forward:

• The committee could do nothing and recommend that the Council deny Stewart's request for a zoning change;
• It could allow for a building with a nonconforming use to be altered and reconfigured so long as it remained within the same lot;
• It could allow a nonconforming use to expand on a greater area and set limits on the size of the new consolidated parcel.

When it was suggested that the committee vote, Volo expressed his preference for the second option, Rosenthal seemed inclined to favor the third, and committee member Shershah Mizan said he wanted the decision to be made by the full Council.

At this point in the discussion, Howard suggested that the issue might better be addressed by amending Section 325-29, the part of the code that defines the restrictions on nonconforming uses. The code currently states that a nonconforming use "may be continued indefinitely," but it cannot be "enlarged, extended or placed on a different portion of the lot"; "be changed to another nonconforming use"; "be reestablished if such use has for any reason been discontinued for a period of over one year, or has been changed to or replaced by a conforming use." Howard suggested that this section could be amended to allow buildings with nonconforming uses to be enlarged or relocated on the same lot, to allow an existing nonconforming use to be changed to another nonconforming use, and to allow a nonconforming use to be reestablished if it has been discontinued for more than a year.

It was decided that the amendment should be made to Section 325-29 not Section 325-8, and that the proposed amendment, without prior review by the Legal Committee (at least not in a public meeting), would be submitted to the full Council for consideration.
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