Strong Towns member and contributor Justin Golbabai is the Planning Administrator for the city of College Station, Texas, a city of around 120,000 which is home to Texas A&M University. Justin recently wrote to us to share a success story: the City Council in College Station adopted language that modified the City’s local ordinances in order to make it easier to incrementally expand old buildings and land uses that are out of compliance with current zoning.
If you've worked in local government, been on an elected council or appointed board dealing with land use, or studied urban planning, you will be familiar with the concept of "nonconformities." To get everyone else up to speed, here's a brief explanation:
A nonconformity is an existing use, structure (building, parking area, etc.), or sign that developed under a previous set of regulations but now no longer complies with a city’s current regulations. In most cities, nonconformities are allowed to remain, but few substantial modifications can be made without first bringing the property into full code compliance. This approach allows a city to more quickly achieve implementation of adopted plans and policies, but it makes infill and redevelopment much more difficult, especially on challenging sites.
Nonconformities arise for all sorts of reasons. In College Station, one factor is that the city somewhat regularly annexes property from the surrounding county, which has no zoning or land use regulations. When properties are incorporated into the city and suddenly subject to rules they were not built to comply with, they often have their land uses, buildings, parking lots, and signs classified as non-conforming.
In other cities, a major source of nonconformities is older, traditional development. Neighborhoods in the early to mid 20th century often lacked the strict required separation of land uses that is commonplace today—many had corner stores and other small businesses, single-family homes, and apartment buildings all interspersed amongst one another. Zoning rules have since become more restrictive of mixed land uses, and many of these neighborhoods—even when they're beloved and full of character—are now what you could call illegal neighborhoods, full of land uses and buildings that could not legally be built today... or rebuilt if they burned down tomorrow. This does not mean that the existing buildings or the uses they house have to change, as they’re often grandfathered in. However, it does pose a problem when it comes time to renovate, expand, or redevelop of the property.
The problem with owning a nonconforming property in many cities is that as soon as you want to do anything with it that requires city permission, all sorts of rules and stipulations kick in. In some cities, you may be required to bring everything about the property that doesn't comply with current codes into compliance, even things that have nothing to do with the renovation or modification you've requested.
The result is a classic perverse incentive. Owners of older buildings that need a little care and attention, or who simply want to expand because they've been successful, may instead sit on them and let them deteriorate because the upgrades that would suddenly be required if the owner were to make even modest changes would be prohibitively expensive or impractical.
Here's an example Golbabai sent us from College Station:
Here you can see how the Brake Check (the rightmost building) is meeting more current regulations in regard to parking and landscaping compared to the adjacent O’Reilly’s, Jack's Mobile Electronics, and Jimmy John’s. If these properties were to redevelop or expand, space would be at a premium. Perhaps if they wouldn’t be allowed to expand because there was no room for the additional required parking. Or perhaps there wouldn’t be room to add the landscaping because of parking requirements like number of spaces or requirements for parking islands. The no-win situation that results is that the owners of these nonconforming properties would not be able to incrementally improve or expand their sites.
Last year, College Station’s Planning and Zoning Commission asked the City staff to identify sections of the local code that were superfluous or getting in the way of common-sense development. It became clear from talking with property owners and developers that the nonconforming use rules were such a section.
College Station's response was to carve out some exceptions to full code compliance, in order to be more flexible on standards for nonconforming properties than they'd be for brand new development. The City's staff looked at best practices from around the country, and tried to ground their efforts in the goal of better encouraging incremental development, and infill development in particular.
They tried to address two common problems:
1. If you want to expand an existing use, like a business or residence, at what point do you need to ask for a rezoning?
In College Station, there is a $1,200 application fee just to apply for a rezone. And that does not include anyone you hire to help you put together your application and navigate the bureaucracy.
In the past, for most areas of the city, if you had a nonconforming use, you were not allowed to expand without applying for a rezoning, unless you received an exception of up to a 25% increase in the site footprint from the Zoning Board of Adjustments. Now you can expand up to 50% of the footprint of your site without triggering the requirement that you apply for a rezone, just to bring the zoning of your property into accord with what's already there, and has likely been there for a long time.
For now, this is a one-time expansion—you can't do it over and over. But you have more flexibility that you used to when it comes to expanding a successful, existing use of a property.
2. What happens if your structure, as opposed to use, is nonconforming? This can mean parking ratios, setbacks (distance from the street), or other such physical attributes do not comply with the current code.
College Station's previous code ordinance essentially told existing property owners that they were grandfathered in, but any new expansion would have to meet the full requirements of the modern code.
The new adjustment carves out exceptions:
Suppose you want to expand your building, but now your parking will no longer be in compliance. College Station's city staff are now allowed the flexibility to make exceptions to the parking requirements at their discretion, including reducing the amount of required parking by up to 50%, and not requiring elements like parking islands for the site if you are expanding a nonconforming use.
The same goes for landscaping. The city now allows exceptions to its landscaping requirements, so long as there isn’t more than a 50% reduction in landscaping points if you’re expanding a nonconforming site.
As far as buffers—a.k.a., the open space required where a commercial use is adjacent to a residential use to mitigate disruptive impacts—staff now has the discretion to reduce buffer widths as long as it’s in such a way that the end result is no more non-conforming than the prior state.
A building can also be nonconforming in terms of required building materials. Formerly, if more than 10% of the total area of a building's façade were replaced, the owner was required to bring the building into full compliance with the code. Now, the threshold is 50%.
“I think those changes make it a lot more lenient for buildings to incrementally expand,” says Golbabai. The Planning Commission and City Council agreed: the change passed both governing bodies unanimously and was adopted on January 11th, 2018.
Golbabai says there was no particular citizen opposition. One reason is that the city staff addressed concerns heard during the community input process that nonconforming multi-family properties in single family neighborhoods close to the Texas A&M campus could become even larger "stealth dorms," by putting on additions and adding bedrooms. Carving out an exception for older established neighborhoods on the land use side, and limiting the changes on the structure side to only non-residential properties, resolved this potential issue raised by residents.
“As Strong Towns members, we know the virtues of allowing for incremental development. The more difficult part is figuring out what is actually holding it back,” Golbabai said. “One part of the answer could very well be this little section in the back of every code book that deals with how to treat development that doesn’t comply with the current codes. Since codes change all the time, the ability for older developments to expand incrementally may ultimately depend on the text of just a few small paragraphs.”