Zoning Override

or

"Variance of Merit"

The General Plan has not been updated for 18 years!!


Times have changed!!


The City has been using the same General Plan since the year 2000, 18 years. It has contracted an outside firm to create a new General Plan.


General Plans are required by California State Law. But there is no time requirement for updating them.


Desert Hot Springs has had a significant increase in population since 2000, from 18,000 to 28,000. 


There has been a major increase in the popularity of "Tiny Houses" which are very compact housing units that often occupy only 350 sq. ft. for one person and sometimes more people…even an entire family. Small, compact housing is usually far more efficient in energy use. 


The current General Plan and zoning ordinance REQUIRES single family residences to have a minimum of 1,200 sq. ft. This is just one example of how some aspects of the Plan or Ordinance are potentially obsolete…or they are not reflecting current trends. 


And there is absolutely no way we can be "regulating" the size and design of residence someone desires! Some communities might want to establish some consistency which is ok but there must be some recourse for someone who does not want to have the same style of residence…or any other type of building…as everyone else.


General Plans are "general". They cannot hope to cover every desire, use and structure. There are always anomalies and specific interests that do not conform to the General Plan. We do not want "every" person to be the same or conform to some "plan". We must promote "creativity" and "individuality" as long as it doesn’t cause a problem with health and safety or a significant nuisance to anyone. At the same time, there are also many examples of "consistency" encouraging a more attractive environment. The whitewash buildings on Greek Islands, the mansard roofs on the buildings in Paris, and the adobe style in Taos or Santa Fe, New Mexico. We must find a balance between consistency and variety.


The goals of Community Development are to create structures and uses that are very popular in aesthetics and function/use. The other overall important factors are: the ability to create employment, revenue/profit, cleanliness, use of quality materials, health, maintenance, signs of enthusiasm for property maintenance and design.


"Variance of Merit"

There is potential for a property to be so exceptional and beneficial that the community may want to allow its development no matter where it is, as long as it complies with health and safety standards.

We want to be open to new ideas or creative ideas! Then we can go through the permitting and public hearing process to determine if the community really desires the concept…and its health and safety. We don’t want to just merely turn away possible ideas because at quick glance they don’t fit exactly into the General Plan (GP) or Zoning Override (ZO).  If a project has potential merit then we must consider it and then see if we can encourage compliance with the General Plan/Zoning Override or the following:


Some potential merit considerations are:

Creativity

High Level Design

Architecture/landscape

Aesthetics

Potential for an important landmark or attraction creates increased interest in the city/community increases activity, business, and income for the community.


If a project has these merits then we should consider allowing it to be developed!

The "Variance of Merit" is a permit process that could allow a variance in structure or use because it is very desirable for the community. It will follow the "Zoning Override" process described below.


"Zoning Override"

A structure and/or use, existing or proposed, may not conform to the zone or surroundings but does not cause a significant negative affect on the community. Currently, a property owner must apply for an entire General Plan or Zoning Change if their intent does not conform to the General Plan or Zoning. Zoning ordinances offer the term "legal non-conforming" as a form of recourse for existing structures and uses that were permitted at one time but are no longer conforming to the current zone. Non-conforming "uses" are not allowed to continue beyond 15 yrs. from the passing of the General Plan, year 2000 zoning ordinances offer "variances" to accommodate structures that are not able to conform to the zone because of "exceptional" reasons that are out of the control of the owner for their property but not others in the area. Conditional Use Permits allow non-conforming uses to be permitted if they comply with specific conditions that are designated by City Staff and public review. 


Other than those 2 forms of recourse, and requesting a "general plan change" or "zoning ordinance amendment", EVERY USE AND STRUCTURE MUST CONFORM TO THE GENERAL PLAN AND ZONING ORDINANCE.


There should be another form of recourse for "minor" properties. Maybe "minor" might be those that consist of only 1-5 lots. Properties larger than 5 lots normally have a larger effect on the community and can apply for a specific plan. But even larger properties might deserve a process that doesn’t involve changing the GP/ZO.


In most situations, an entire General Plan Amendment or Zoning Change for small property is completely inappropriate. I have processed both for a single lot that was 5 acres. The property owner had to pay a large sum of money, and then the whole ordinance and zoning map had to be changed. You could barely see the property on the map and it did not look good. A much better solution would be to leave the GP/ZO the way they are and only notate the Zoning Override.


Currently, all Non-Conforming "Uses" are illegal because it is beyond the 15 year limit expressed in the year 2000 Zoning Ordinance. So "Legal"- Non-conforming structures will likely have no legal use! Also, the "Legal-Non-conforming" determination has a stigma with banks, lenders, and insurers. We need a better determination for any uses that existed before the General Plan and Ordinance and continue to be used without causing any code violations, health and safety hazards, or nuisances.


Zoning Override Determination:

Planning Director must create an "Initial Determination" of Structure and Use Type and whether or not a Zoning Override is appropriate.


Planning Commission Recommendation and Design Review:


City staff must create a recommendation and full report for Public Hearing and Planning Commission consideration and approval. This will be similar to the process for a Conditional Use Permit, Zoning Change, and General Plan Amendment.


The findings that are used for the Conditional Use Permit are:


At the completion of the public hearing, the Commission shall record the decision in writing and shall recite therein the findings upon which such decision is based.


The Commission may approve and/or modify a Conditional Use Permit application in whole or in part, with or without conditions, only if all of the following findings are made:


  1. A.  That the proposed use is conditionally permitted within the subject land use district and complies with all of the applicable provisions of this Zoning Ordinance;
  2. B.  That the proposed use would not impair the integrity and character of the land use district in which it is to be located;
  3. C.  That the subject site is physically suitable for the type and intensity of land use being proposed;
  4. D.  That the proposed use is compatible with the land uses presently on the subject property;
  5. E.  That the proposed use would be compatible with existing and future land uses within the general area in which the proposed use is to be located;
  6. F. .That the proposed use is compatible in scale, mass, coverage, density, and intensity with all adjacent land uses;
  7. G.  That there are adequate provisions for water, sanitation, and public utilities and services to ensure that the proposed use would not be detrimental to public health and safety;
  8. H.  That there will be adequate provisions for public access to serve the subject proposal;
  9. I.  That there will not be an adverse effect upon desirable neighborhood characteristics;
  10. J...That the proposed use is needed or appropriate at the prescribed location, as demonstrated in the market/feasibility study, if required;
  11. K.  That the proposed use is consistent with applicable goals and policies of the General Plan;
  12. L  That there will not be significant harmful effects upon environmental quality and natural resources;
  13. M.  That the negative impacts of the proposed use are mitigated and/or a mitigated negative declaration may be filed; and
  14. N.  That the proposed location, size, design, and operating characteristics of the proposed use would not be detrimental to the public interests, health, safety, convenience, or welfare of the City. (Prior code § 159.36.050)

Staff must determine what aspects of the proposed project or existing property are in conflict with the GP/ZO


  1. Some typical conflicts are:
  2. Type of structure and use
  3. Size of units
  4. Parking
  5. Number of units, density
  6. Structure height
  7. Setbacks
  8. Lot coverage
  9. Colors
  10. Landscape
  11. Signage

Override and Variance of Merit must:

  1. Conform with health and safety regulations
  2. Not cause nuisance to neighboring properties
  3. Adhere to California Environmental Quality Act
  4. Have Design Review Permit with public hearing.
  5. Community must have a positive opinion of the project

The break in consistency with the General Plan for the small project will not cause an overall detriment to the goals of the General Plan or community.


An override on one property may encourage adjacent and nearby properties to seek the same override. If there are enough properties seeking overrides in one area then the city must do a zoning change.


All public concerns will be given sufficient consideration.


Significant considerations are:


  1. Aesthetic quality
  2. Quality of design/architecture/landscape
  3. Generates increased public excitement and enthusiasm
  4. Generates increased revenue
  5. Health and safety
  6. Cannot cause significant nuisance
  7. Aesthetics