Main Content

 

LAND DEVELOPMENT CODE ANNOTATIONS

 

JANUARY 2000

Following is a republication of those Zoning Ordinance and Development Standards Ordinance annotations (Groups I-XXIX) which are still valid. They have been revised to reference the Land Development Code. In some cases old annotations have been modified to reflect ordinance amendments but the intent of the original annotation has not been changed. Annotations which are no longer valid have been deleted. The roman numeral following a question refers to the particular annotations group in which the question was originally addressed.

Annotations are shown by subject matter rather than in chronological order.

 

_______________________

Mary Gibbs, Director


Table of Contents:

 

 

Chapter 10

Development Standards Regulations

   Article II Division 3   Section 10-174(6) - Limited Reviews

 

Chapter 34

Zoning Regulations

    Article I - In General   Section 34-2 Definitions

       Assisted Living Facilities

       Dwelling Unit Types: Mobile Home and Building, Conventional

       Marina

       Religious Facilities and RV Parks

       Restaurant and Bar and Cocktail Lounge

       Water, Body of

    Article IV Division 3 Design Standards  

       Section 34-412 Deviations from General Zoning Regulations

    Article VI District Regulations

       Section 34-616 Rules for Interpretation of District Boundaries

    Section 34-622 Use Activity Groups General Questions - Not Section Specific

       Automobile Motors, Sale of

       Bingo

       Home Care Facility Duplex

       Montessori Schools

       Ultralight Aircraft

    Section 34-622(c)(9) Contractors & Builders

    Section 34-622(c)(13) Essential Service Facilities

    Article VI   Division 2 Agricultural Districts

       Section 34-653 Use Regulations table

    Section 34-654 Property Development Regulations Table

    Article VI   Division 3 Residential Districts Subdivision II

       One and Two Family Residential Districts   Section 34-694 Use Regulations Table

    Subdivision III   Multiple Family Districts

       Section 34-714 Use regulations table

    Subdivision IV   Mobile Home Residential Districts

       Section 34-735   Use regulations table (Mobile Homes)

    Section 34-736   Property Development regulations table

    Article VI   Division 4 Recreational Vehicle Park Districts   Subdivision II  Conventional

      Recreational Vehicle Districts

       Section 34-792    Property development regulations table

    Article VI   Division 6 Commercial Districts  Section 34-843 Use regulations table

       Beer Manufacturing in restaurants

       Fork-lifts, Sales, Rental

       Fuel Pumps

       Lottery Ticket Sales

       Manufactured Housing

       Marinas

       Mini-Warehouses

       Mobile Home Dealers

    Article VI   Division 7   Marine-Oriented Districts  

       Section 34-873 Use regulations table

    Section 34-874 Property development regulations table

    Article VI   Division 8   Industrial Districts

       Section 34-903 Use regulations table

    Article VI   Division 9   Planned Development Districts

       Section 34-931 – 34-939

    Article VI   Division 10 Special Purpose Districts Subdivision II Environmentally Critical

    District

       Section 34-983 Use regulations

    Article VII Supplementary District Regulations Division 2 Accessory Uses Buildings and

      Structures

       Section 34-1174 Location and Setbacks generally

    Section 34-1176 Swimming pools, tennis courts, decks & similar recreational facilities

    Section 34-1178 Guest Houses

    Article VII   Division 3 Adult Entertainment, Bookstores & Massage Parlors

       Section 34-1204 Prohibited Locations

    Article VII   Division 5 Alcoholic Beverages

       Sections 34-1263(e) and 34-1264(b)(1)a 

    Article VII   Division 12 Density Subdivision II Residential Development

       Section 34-1492 Definitions (3)

    Article VII    Division 15 Excavation Activities Subdivision I Generally

       Section 34-1651 Required Approvals

    Subdivision II Mining

       Section 34-1679 Renewal of Permit

    Article VII   Division 17 Fences, Walls, Gates & Gatehouses

       Section 34-1743 Construction of Fences

    Section 34-1744 Location and Height of Fences & Walls

    Section 34-1748 Enclosure of High-voltage Transformers & Other Utility Equipment

    Article VII   Division 18 Home Occupations 

       Section 34-1771 Permitted Uses; Operation

    Article VII   Division 24 Model Homes , Units & Display Centers

       Section 34-2011 Applicability of Division

    Section 34-2015 Location & Design generally   Valet Parking

    Section 34-2016 Dimensional Requirements; Delineation of Parking Spaces

    Section 34-2018 Joint Use of Off-Street Parking Lots

    Section 34-2019   Other Use of Off-Street Parking Lots

    Section 34-2020   Required Spaces

    Article VII   Division 27 Places of Worship & Religious Facilities

       Sections 34-2051  — 34-2053

    Article VII   Division 30 Property Development Regulations   Subdivision III Setbacks

       Section 34-2192 Street Setbacks

    Section 34-2194   Setbacks from Bodies of Water

    Section 34-2222 Lots Created After January 28, 1983

    Article VII   Division 35 Sports/Amusement Parks & Recreational Facilities

       Section 34-2478 Parking

    Article VII   Division 36 Storage Facilities & Outdoor Display of Merchandise

       Section 34-3005   Storage Facilities

    Article VII   Division 37   Subordinate & Temporary Uses

       Section 34-3021 Subordinate Uses

    Article VIII   Nonconformities Division I Generally

       Section 34-3204 Mobile Home & Recreational Vehicle Unit Replacements & Roof

         Repairs

    Article VIII Division 3 Nonconforming Buildings & Use of Buildings

       Section 34-3241 Nonconforming Buildings & Structures

    Article VIII   Division 4 Nonconforming Lots

       Section 34-3272 Lot of Record Defined; General Development Standards

    Section 34-3275   Commercial or Industrial Use

 

 

Miscellaneous

    Single Family Determination in Lieu of Variance or Rezoning (11/09/1988)

 

 

Table of Contents

 


CHAPTER 10

DEVELOPMENT STANDARDS REGULATIONS

 

ARTICLE II DIVISION 3   SECTION 10-174(6) ‑ LIMITED REVIEWS

 

      Question #1: (XXII)

Does a favorable single family determination pursuant to the Lee Plan exempt a property owner from having to obtain a lot split approval under the DSO? This situation would likely occur only for lots which are created by deed between January 28, 1983, and December 21, 1984.

      Answer:

Yes.  Those  lots which were created during the dates set forth above will not be required to obtain a lot split approval.  Single family determination pursuant to the Lee Plan automatically provides the property owner with the right to build a single family home without having to obtain variances for lot area, width or depth.  Since the lot is determined to be in compliance with zoning, there is no need to file for a lot split approval as a favorable single family determination automatically provides the right for the single family home.

 

      Question #2: (XXII)

Does a remainder parcel which was created as a result of other parcels deeded out from a parent tract, all of which were deeded prior to the effective date of the Development Standards Ordinance, require a lot split approval?

      Answer:

No.  The remainder parcel was created when all the other lots were deeded prior to the effective date of the Development Standards Ordinance.

 

 

 

 

Table of Contents

 


CHAPTER 34

ZONING REGULATIONS

 

ARTICLE I - IN GENERAL    SECTION 34-2 DEFINITIONS

  

Assisted Living Facilities

      Question: (I-XVIII)

An applicant has asked whether or not an Assisted Living Facility can consist of small apartments containing kitchen facilities, with each apartment unit occupied by one couple?

      Answer:

Yes. However, if kitchen facilities are provided within a unit it shall be considered and counted as a dwelling unit and the equivalency factor would not apply.

 


Dwelling Unit Types:  Mobile Home and Building, Conventional

 

     Background:  The definition of a mobile home is: A building, manufactured off site, in conformance with the Federal Mobile Home Construction and Safety Standards (24 CFR 3280, et seq), subsequently transported to a site complete or in sections where it is emplaced and tied down in accordance with Chapter 15 C‑1, FAC with the distinct possibility of being relocated at a later date."

 

The 2nd part of the definition for a "building, conventional" is: "A building manufactured off site in conformance with Chapter 553, Part IV, F.S. (or Chapter 9B‑1 FAC), subsequently transported to its site complete or in modules and fixed to its own foundation with no intention to relocate.

  

      Question: (I-XVIII)

Does a home utilizing factory components manufactured off site, but assembled on site, meet the current definition of a mobile home in the County Zoning Ordinances?

      Answer:

If the building, or home, is built and certified to be in conformance with 24 CFR 3280; but has the same steel frame under-structure required on all current HUD Code Homes, meaning that it is transportable with wheels and axles just like other mobile homes; and, if it is emplaced and tied down in accordance with Chapter 15 C‑1 FAC, then it would qualify as a mobile home and would be permitted in mobile home zoning districts.

 


Marina

      Question: (I-XVIII)

      Under the definition of a marina, can a seaplane be docked or moored at a marina?

      Answer:

Yes. The definition of marina refers to the term "boats. "Boats are defined in part as "any vessel, watercraft, or other artificial contrivance used, or which is capable of being used, as a means of transportation, ...on waters of Lee County, Florida, including:  4. Airboats and Seaplanes;

 


Religious Facilities and RV Parks

      Question: (XXII)

      The definition of Religious Facilities states:

 

Religious‑related facilities and activities which may include, but are not limited to:  Place of Worship, bus storage facility or area, convents, monasteries, retreats, church/synagogue ministries involving classes for more than one hundred (100) children during the week, and homes for the aged.

 

A church would like to provide RV facilities on their property for use of the church members.  The benefit would be to all members of the church throughout the nation.  The church would provide religious services, Bible studies, and the use of church facilities for "events" taking place.  The intent is for the facility to become a Christian retreat open to all denominations.

 

Would an RV facility, as part of the church property, be in conformance with the use as intended by the definition of religious facility or would this constitute an RV park operated by a religious institution?

      Answer:

      It would be considered as a recreational vehicle park operated by a religious institution.

 

When there appears to be a conflict in how particular situation is handled in the zoning ordinance, i.e., is this  a recreational vehicle park owned by a religious institution or is it a religious facility which has recreation vehicle camp sites, the more restrictive prevails.  In this case, the potential impact of the recreational park on surrounding land uses and the infrastructure of the area warrants that the project be properly reviewed as a recreational vehicle park.

 


Restaurant and Bar and Cocktail Lounge

      Question #1: (I-XVIII)

"Restaurant Standard" is "an establishment whose principal business is the sale of food or beverages to customers in a ready-to-consume state, and ...".

 

What is the intent of the word "beverages"?  Is it included so that establishments which are akin to a "juice bar" or a "soda fountain" would be included within that definition?  Could the word "beverages" also include alcoholic beverages, thereby allowing a bar, whose principal business is the sale of a beverage (in this case, alcoholic beverages) to also fall within the definition?

      Answer:

The term "or beverages" was included  for the reason you indicate ‑‑ to cover "juice bars, soda fountains, and other similar establishments."  Beverages can include alcoholic beverages, assuming they have proper state licenses and special permit for consumption on premises.

 

However, any "establishment devoted primarily to the retailing and on‑premises drinking of malt, vinous, or other alcoholic beverages" (definition of Bar or Cocktail Lounge) is not classified as a restaurant and is permitted only in these zoning districts which specify "Bar or Cocktail Lounge."  The word beverage in the definition of "Restaurant, Standard" is a more general term whereas in the definition of "Bar or Cocktail Lounge" a more specific type of beverage is defined.  In this case, the specific would control the general, thereby finding an establishment primarily devoted to sale or service of alcoholic beverages for consumption on premises to be a "Bar or Cocktail Lounge" rather than a restaurant.

 

      Question #2: (I-XVIII)

When is a bar no longer a bar and classified as a restaurant? Case in point ‑ the owner of a bar in a C‑1A District (not a permitted use) wants to know to what extent he needs to change his use to be considered a restaurant (a permitted use in the C‑1A).  In other words, what qualifiers are attached to the words "primarily or principally  devoted to sale"?  Is it based on percentage of sales or percentage of floor area, or both?

      Answer:

The Ordinance does not specifically define "primarily."  However, the dictionary defines "primary" as "of first rank, importance, or value."

 

Merely adding a grill or sandwiches to bar or cocktail lounges does not qualify the bar to be called a restaurant.

 

 


Water, Body of

      Question: (I-XVIII)

      The Zoning Ordinance defines "Water, Body of" as follows:

 

Artificial body of water means a depression or concavity in the surface of the earth other than a swimming pool, created by human artifice, or that portion of a natural body of water extended or expanded by human artifice, and in which  water stands or flows for more than three months of the year.

 

Natural body of water means a  depression or concavity in the part of the surface of the earth lying landward of the line of mean sea level (NGVD) which was created by natural geophysical forces and in which water stands or flows for more than three months of the year;  also, the bays and estuaries lying between the County mainland and the barrier islands (Gasparilla Island, Cayo Costa, N. Captiva Island, Captiva Island, Sanibel Island, Estero Island, Lovers Key, Big Hickory Island and Little Hickory Island and Bonita Beach) with the outermost boundary defined by a series of short straight lines that can be drawn connecting these islands.

 

Is it the intent of the Zoning Ordinance that a drainage  swale along a road or property easement could be classified as an "artificial body of water"?

      Answer:

No. The definition was originally adopted in the Planned Development Ordinance and was incorporated into the Zoning Ordinance. Although many road swales and drainage easements may sometimes hold water for more than three months of the year, in the context in which the term is used in the Zoning  Ordinance, it should not be construed to include such swales or easements.  However, actual drainage canals such as the I.D.D. canals are considered as artificial bodies of water.

 

 

 

 

Table of Contents

 


ARTICLE IV  DIVISION 3  DESIGN STANDARDS

SECTION  34-412 Deviations from general zoning regulations

 

      Question: (I-XVIII)

Sections 34-412(a) and (b) indicate that in the process of obtaining Planned Development Approval, deviations from the Zoning Ordinance  or any other land development regulation or code may be permitted under certain conditions.  Does this include deviations from the Impact Fee Ordinance(s)?

      Answer:

The key word in both Sections is "may." The Board of County Commissioners may allow deviations.  However, this particular question was recently addressed by the Board of County Commissioners.  In effect, the Board's decision is that  no deviation from the Impact Fee Ordinance can be allowed and staff should not even permit the processing of deviation request for relief from the Impact Fee Ordinance. Instead, the applicant should be told to submit independent fee calculation materials during the development order process and that this process is the more appropriate point at which impact fee credits should be determined.

 

 

 

 

 Table of Contents

 


ARTICLE VI DISTRICT REGULATIONS

SECTION  34-616 Rules for interpretation of district boundaries

 

      Question:

How would the development regulations apply, in instances where a lot is split by two or more zoning districts?

      Answer:

Where a lot is split by two or more zoning districts, the property development regulations for the largest proportional district shall prevail. However, this does not authorize the location of a use in a district where that use is not either a permitted principal use or accessory use.

 

 

 

 

Table of Contents

 


SECTION  34-622 Use activity groups   General Questions - not section specific

 

Automobile Motors, Sale of:

      Question: (I-XVIII)

Would the retail sale of used automobile motors fall under "Auto Parts Store" or "Used Merchandise ‑ Group III" or both?

      Answer:

      Both.

 


Bingo

      Question: (I-XVIII)

What Use Activity Group and what zoning districts allow organizations to conduct "Bingo" activities?

      Answer:

"Bingo" or other similar recreational activities do not fall within any specific Use Group. Normally those activities are ancillary to some permitted use.  Therefore, if a Place of Worship is running the activity, it would be permitted within their own facilities. Similarly, if a membership club, fraternal organization, or some other non‑profit group is running the"Bingo", it would be permitted in whatever district permits the main non‑profit activities.

 

     If the primary use of the establishment is the commercial operation of "Bingo" games or other similar type activities in which large groups of people gather for indoor recreational activities then it would be classified  34-622(c)(38) Recreation Facilities, Commercial ‑ Group IV ‑ Indoor Facilities.

 


Home Care Facility

      Question: (XXI)

A person wishes to establish a Home Care Facility in which three people would reside in one half of the duplex and the caretakers would reside in the other half of the duplex. Is this a permitted use?

      Answer:

No. A Home Care Facility is defined as: "A conventional residence in which up to three (3) unrelated individuals are cared for but without provision for routine nursing and/or medical care."

 

The definition indicates that the caretaker(s) as well as the person(s) being cared for must reside in the same dwelling unit.  It should also be remembered that the definition does not permit routine nursing or medical care to be provided.

 


Montessori Schools

      Question: (I-XVIII)

      How would "Montessori Schools" be classified and where are they permitted?

      Answer:

Any school which meets the requirements of Chapter 232, F.S. Compulsory School Attendance would be classified as a "School, Non‑Commercial."  This term is listed as by right or by Special Exception in the district use regulations.

 


Ultralight Aircraft

      Question: (I-XVIII)

The use activity groups (Section 34-622), do not specifically address the sale and servicing of aircraft. In which zoning district(s) would this type of use be permitted?

      Answer:

The most similar use group would be Section 34-622(c)(55) ‑ Vehicle and Equipment Dealers. Although none of the sub‑groups specifically address aircraft units, any district which allows any of the sub‑groups (except Group III ‑ Boats and Yachts) could be used.

 

 

 

 

  Table of Contents

 


 

SECTION 34-622(c)(9) Contractors & Builders

 

      Question: (I-XVIII)

Section 34-622(c)(9) ‑ Contractors & Builders Group II ‑ allows light fabrication work. Since the dictionary defines "carpentry" as "the art of shaping and assembling structural woodwork," and fabricating as "to construct or manufacturer," does this mean that cabinet making is a permitted use?

      Answer:

No. The intent of this group is to provide for the contractors and builders who erect and/or repair buildings, etc. The lead‑in paragraph and resultant list provides for the intent.

 

The "light fabrication work" is to allow certain trades (such as air conditioning installers) to fabricate special parts or structural pieces required to handle unusual situations on the job.

 

Manufacturing of wood cabinets is specifically listed under Section 34-622(c)(26)‑ Lumber and Wood Products, Manufacturing ‑ Group II.  If the cabinet making is from non‑wood materials, it would come under Section 34-622(c)(18)‑ Furniture and Fixtures, Manufacturing.

 

 

 

 
 Table of Contents
 


 

SECTION 34-622(c)(13)  Essential Service Facilities

 

      Question 1: (I-XVIII)

A sewage treatment plant owner wishes to spray‑irrigate the effluent onto adjacent property.  Would this be considered an Essential Service Facility‑Group II? or is it an accessory use?

      Answer:

Spray‑irrigation disposal would be an Essential Service Facility ‑‑ Group II unless it is located on the same premises as the sewage disposal plant or package plant.  If located on the same premises, it is considered an accessory use to the sewage disposal plant or package plant.

 

      Question 2: (I-XVIII)

Sewage disposal or treatment facilities are listed as a Group II use.  Does this include package treatment plants?  In the past, they were considered accessory uses to a permitted use.

      Answer:

Package plants, constructed for an individual project and located on the same  premises, were intended to be treated as an accessory use subject to the Land Development Code.

 

Sewage plants listed as Essential Service Facility ‑ Group II were intended to mean facilities serving more than one project. The definition of Essential Services refers to public or private utility companies, excluding the buildings or structures, while Essential Service Facilities were the buildings or structures.

 

Therefore, if the treatment plant is designed, used, or intended to serve several developments, OR if not on the same premises (see definition for "Premises, on the Same") as the project it is serving, it would require a special exception.  However, if serving primarily the one project and located on the same premises, then it would be an accessory use and would not require a special exception.  In any case, where there is a question as to whether the special exception is unnecessary, an administrative interpretation should be sought.

 

 

 

 

 Table of Contents

 


 

ARTICLE VI  DIVISION 2  AGRICULTURAL DISTRICTS     SECTION  34-653 Use regulations table

 

      Question: (XXI)

Agricultural districts permit nurseries as a permitted use in all AG zones.  Would storage and/or sale of pine bark, potting soil, fertilizer, edging railroad timbers and other miscellaneous items used by landscape contractors be ancillary to the principal use? 

These uses would not account for the principal dollars with the primary use being the nursery. The trend is towards integrated facilities (one stop shopping).  The cost of land makes it prohibitive to have a nursery in any other district except AG. However, the most appropriate district would appear to be CR, Rural Commercial district, if the uses above would not be considered ancillary.

      Answer:

Section 34-2 defines two terms which have a bearing on this question:

        

Plant Nursery means any lot, structure or premises used as an enterprise for the purpose of growing or keeping of plants for sale or resale.

 

Lawn and Garden Supply Stores  means establishments primarily engaged in selling trees, shrubs, other plants, seeds, bulbs, mulches, soil conditions, fertilizers, pesti­cides, garden tools, and other garden supplies to the general public.  These establishments primarily sell products, purchased from others, but may sell some plants which they grow themselves.  Establishments primarily engaged in growing are classified as plant nurseries.

 

Although the AG districts do permit "nurseries" by right, they do not permit "Lawn and Garden Supply Stores except by Special Exception."  The key issue is the predominant activity of the property.

 

 

 

 

 Table of Contents

 


 

SECTION  34-654 Property development regulations table

 

      Question: (I-XVIII)

Section 34-654 permits lot sizes of 39,500 square feet for interior lots and 33,600 square feet for corner lots in the AG-2 District.  However, the Lee Plan Rural and Open Land use categories require one (1) acre.  Isn't this an inconsistency?

      Answer:

No. The Lee Plan is based on gross acreage. The lot sizes required in Section 34-654 do not include street rights‑of‑way.  When you add one‑half of adjacent rights‑of‑way you will come very close to the one acre requirement.  Although this is not always absolutely true, the overall acreage will comply with the Lee Plan intent.

 

 

 

 

 Table of Contents

 


 

ARTICLE VI   DIVISION 3  RESIDENTIAL DISTRICTS   SUBDIVISION II One and Two Family Residential Districts    SECTION 34-694 Use regulations table

 

      Question 1: (I-XVIII)

Is there anything in the Zoning Ordinance that would prohibit a person occupying a single‑family residence from renting out extra bedrooms to other unrelated individuals?

      Answer:

No.  The situation you've described wherein a person residing in his own home leases one or two bedrooms to non‑related individuals does not meet the definition of "Boarding House" or "Rooming House". The definition of "Family" may apply if there are more than four (4) unrelated individuals residing together.  Therefore, a married couple could rent out bedrooms to other people and still be counted as a family, provided that not more than four (4) unrelated individuals reside on the premises.

 

      Question 2: (I-XVIII)

Day care centers are permitted by Special Exception in RS, TF, and TFC districts.  A  "Place of Worship" is permitted "existing only". New Places of Worship require Special Exception.  If a "Place of Worship" wants to add a "Day Care Center" does it require a Special Exception?

      Answer:

No, provided that the "Day Care Center" is sponsored by a church/synagogue within its own structure(s).

 

The definition of "Place of Worship" includes "church/synagogue ministries involving classes for 100 or less children during the week, and other church/synagogue sponsored functions, which do not exceed the occupancy limits of the building."

 

 

 

 

   Table of Contents

 


 

SUBDIVISION III Multiple-Family Districts   SECTION 34-714 Use regulations table

 

      Question 1: (I-XVIII)

If a proposed multi‑family residential development within an RM District (which permits existing marinas only) includes an appurtenant docking area for use of the residents and guests only, but does not include fuel docks, ship's store or other commercial uses, does the docking area fall within the definition of marina?

      Answer:

No. The definition of a marina specifically excludes "docks, davits, boathouses and similar facilities appurtenant to a residential land use providing only docking or mooring."  These facilities would be classified as "Personal or Private Recreational Facilities" in an RM district provided they do not provide the services defined as "Marina."

 

 

 

 

Table of Contents

 


 

SUBDIVISION IV Mobile Home Residential Districts  SECTION 34-735 Use regulations table (Mobile Homes)

 

      Question 1: (I-XVIII)

Section 34-735 allows "Park Trailers" by right in the MH-2 district. Is it a scrivener's error that they aren't also allowed in the MHC‑1 and MHC‑2 Districts?

      Answer:

No. Park Trailers are defined as a type of Recreational Vehicle and were intended to be allowed only in the MH-2 district and in non‑transient Recreation Vehicle Parks.

 

      Question 2: (I-XVIII)

Can recreational vehicles be placed in the MHC-1, MHC-2, MH‑1, MH‑2, MH‑3 or MH‑4 zoning district?

      Answer:

Park Model units (synonymous with Park Trailers) are permitted in the MH‑2 district only.  No recreational vehicles including Park Models are permitted in the MHC-1, MHC-2, MH‑1, MH‑3 or MH‑4 districts, and no recreational vehicle except Park Models are permitted in the MH‑2 district.

 

 

 

 

Table of Contents

 


 

SECTION 34-736 Property development regulations table

 

      Question: (I-XVIII)

There is no lot depth listed for the MHC‑1 & MHC‑2 districts.  Was this an oversight or can the lot depth vary, so long as the total lot area is met?

      Answer:

There is no depth requirement.  As long as the width and area are met, the depth can vary.  However, all setbacks must also be complied with.

 

 

 

 

Table of Contents

 


 

ARTICLE VI  DIVISION 4 RECREATIONAL VEHICLE PARK DISTRICTS  SUBDIVISION II  Conventional Recreational Vehicle Districts  SECTION 34-792 Property development regulations table

 

      Question 1: (I-XVIII)

In the conventional RV Districts, can central air conditioning units, propane tanks, bay windows or carports encroach into the required 10‑foot separation between units?

      Answer:

No. The RV‑1, RV‑2 and RV‑3 districts all require a 10‑foot separation between units.  RV‑1 and RV‑2 allow a 12‑inch encroachment for roof overhangs only.  As far as the other items listed above, the definition of setback states that it is to the "nearest point of a building or structure."  All these items qualify as a structure and hence cannot encroach into the 10‑foot separation area.

 

      Question 2: (I-XVIII)

Section 34-792 does not allow roof overhangs or eaves to encroach upon the required 10 foot separation between units in the RV-3 District.  However, RV‑1 and RV‑2 allow a 12 inch encroachment.  Was this an oversight?

      Answer:

No. The encroachment was not included in this section because the property development regulations of the RV‑3 district were considered sufficient so that this provision was unnecessary.

 

 

 

 

Table of Contents

 


 

ARTICLE VI  DIVISION 6  COMMERCIAL DISTRICTS  SECTION 34-843 Use regulations table

 

Beer manufacturing in restaurants

      Question: (XXIII)

A restaurant is proposing to sell beer on premises for restaurant patrons.  However, the beer is manufactured on the premises in two 500 gallon holding tanks.  Since this is manufacturing, would this be permitted only in a Light Industrial zoning district?

      Answer:

No, the Division of Alcoholic Beverages and Tobacco require a restaurant and/or bar or lounge, which contains this type of facility, to have two licenses.  One license is the normal license for consumption on premises and the other is for a Brew Pub License to produce the beer for consumption on premises. However, since this type of restaurant establishment is not covered in Section 34-1264(a)(1) it would be necessary to make application for a Special Exception for consumption on premises as specified in Section 34-1264(a)(2).

 


 

Fork‑lifts, Sales, Rental

      Question: (I-XVIII)

What zoning districts permit sales, rental, service and parts for material handling equipment such as fork‑lifts and other similar equipment?

      Answer:

In reviewing the use activity groups it would appear that two options are available, depending on the primary emphasis of activity. If sales is the primary emphasis, Section "34-622(c)(55) ‑ VEHICLE AND EQUIPMENT DEALERS" is the appropriate main category.  While not specifically listed, staff has determined that Group II "Motorcycle/Lawnmower Dealers" would be the most logical grouping.

 

Although Group V  "Construction Equipment" may also be an appropriate grouping, it is primarily intended for large equipment and would be too restrictive.

 

The second alternative is Section 34-622(c)(39) "RENTAL OR LEASING ESTABLISHMENTS ‑ Group IV ‑ Construction Equipment, Trucks", if leasing is the primary emphasis.

 

"Vehicle and Equipment Dealers ‑ Group II is permitted in the C‑1, C‑2,  C-2A,  CC and CG districts, or the CPD, IPD and MPD  districts if listed on the approved schedule of uses.  "Rental or Leasing Establishments ‑ Group IV" is permitted in the IL and IG districts, or the CPD, IPD, MPD or AOPD districts if listed on the approved schedule of uses.

 


 

Fuel Pumps

      Question: (I-XVIII)

Are fuel pumps considered an accessory use to a warehouse facility provided that the use of the pumps is limited to the vehicles necessary for the warehouse operation?

      Answer:

Yes.  Fuel pumps which are solely for the use of private establishments and their vehicles are considered an accessory use. This type pump should not be confused with "self‑service fuel pumps" which are available to the general public.

 


 

Lottery Ticket Sales

      Question: (I-XVIII)

What zoning districts will permit "lottery ticket" sales?

      Answer:

In most, if not all cases, lottery ticket sales will not be the primary use of the property.  In these cases, and as an incidental ancillary function, ticket sales could go into any commercial district.

 

If lottery sales is the primary use, it would fall within the Use Activity Group Section 34-622(c)(5) ‑ Business Services ‑ Group I and subject to regulations for districts permitting said use Activity Group.

 


 

Manufactured Housing

      Question: (I-XVIII)

Does a zoning district that permits "Mobile Home Dealers" or "Vehicle and Equipment Dealers ‑ Group IV (Recreational Vehicle/Bus Dealers)" also automatically permit the display and sales of manufactured housing?

      Answer:

No. Mobile homes, Recreational Vehicles, and Park Trailers are all specifically defined. A manufactured housing unit is considered a conventional building and is defined ‑ "Building ‑ Conventional." (The Lee County Zoning Ordinance uses the terminology specified in Chapter 553, Page IV of the Florida Statutes, whereas the mobile home industry often uses the term "manufactured housing" as if it were synonymous with "mobile home.")

 

Where manufacturing is not involved, the sale of the manufactured houses would be the same for conventional buildings subject to the regulations for model homes and model unit display centers.  However, models and model unit display centers (Sections 34-1951 - 34-1955) only permits display or model units which would be permitted within the particular zoning district.  Consequently,  manufactured homes may be displayed in any district permitting  "Dwelling Unit, Conventional Single Family Residence", provided that models are permissible.  Since the RV and MH districts do not permit "Conventional Single Family Units", the sale of same would be prohibited.

 

The manufacturing of both mobile homes and prefabricated wood buildings and components is listed in Section 34-622(c)(26) ‑ Lumber and Wood Products, Manufacturing ‑ Group V.  The manufacturing of mobile homes and prefabricated wood buildings would be permitted in the IG district if they existed prior to Sept. 27, 1993 or in the IPD district.  Prefabricated metal buildings are listed in Section 34-622(c)(14) ‑ Fabricated  Metal Products/Manufacturing ‑ Group III.  These buildings would be permitted in the IG district subject to special setbacks  or in the CPD, MPD and  IPD districts.  Manufacturing of buildings listed as "Fabricated Metal Products" would also be permitted in the C‑2 districts.

 


 

Marinas

      Question: (I-XVIII)

Can an existing marina in a C1-A, C‑1, C-2, C-2A, CG, or CT district be expanded?

      Answer:

Yes.  If the use meets the definition of Marina and can prove that it had an occupational license for a marina, and was collecting rents from uses, OR was part of a residential development project wherein individual boat slips are owned by residents of the development, then it may be expanded in accordance with all applicable Federal, State and County regulations.

 


 

Mini-warehouses

      Question: (I-XVIII)

In the CI  (Intensive Commercial) district Mini‑Warehouses are a permitted use. Caretaker's residence is not addressed in this zoning district; however, this is a customary accessory use to a mini‑ware-house.  Although not specifically addressed, since this a new (1986) district, is it now the intent to allow the caretaker's  apartment?

      Answer:

Yes. A caretaker's residence is a customary accessory use for mini‑warehouses and it would be permitted provided it is clearly accessory to the permitted use and is the only residential use on the property.

 


 

Mobile Home Dealers

Background:  A model display center, as defined (Section 34-1952), and open storage are listed as permitted uses in the C‑1 zoning district.  Also, Section 34-1955(c) allows for sales to be conducted in a main sales office located on or off the premises.  However, the C‑1 zoning district does not list mobile home dealer as a permitted use. Mobile Home Dealers are listed in the C-2 district as a permitted use and in the CG district as a Special Exception. 

      Question: (XXIV)

If a mobile home dealer has three or more units erected on a single, undivided property (model display center) for the purpose of promoting sales, a main sales office on or off the premises and an area designated for the enclosed storage of inventory, would he be permitted to operate as a model display center in the C‑1 zoning district?

      Answer:

Yes, a mobile home dealer may have a model display center in the C‑1 district provided he/she complies with the regulations set forth in Section 34-1952.

 

 

 

 

Table of Contents

 


 

ART. VI  DIVISION 7  MARINE-ORIENTED DISTRICTS  SECTION 34-873 Use regulations table

 

      Question: (I-XVIII)

Does the IM ‑ Marine Industrial District allow bulk storage of petroleum products?  If not, what district would permit it?

      Answer:

No. Bulk storage, as used in this ordinance, is intended to mean the storage of chemicals, petroleum products and other materials in above‑ground containers for subsequent distribution to retail dealers or outlets OR for distribution to other commercial or industrial users.

 

The IM ‑ Marine Industrial District is not intended for this type of use, as set forth in Section 34-871(b) Purpose and Intent which states:

 

"To permit the designation of suitable locations for and to insure the proper development and use of land and adjacent waters for commercial and industrial waterfront dependent land uses.  Such uses are more intense than those normally encountered in a recreational marina, yet fall short of the intensity of use represented by the storage and commodity handling facilities and equipment attendant to the waterborne commerce movement facilities which are the principal focus of the PORT District [34-871(c)]. The Marine Industrial District is intended to accommodate such uses as boat building, major hull and engine maintenance and repair, landing, icing, and shipping of fish and seafood (fish and seafood processing requires a special permit) and other uses of similar scope and scale. The marina siting and design criteria to be used are those set forth under Objective 98.5 and 98.6 of the Lee Plan."

 

A review of the permitted uses will also show that bulk storage of petroleum is not a permitted use.

 

 

 

 

Table of Contents

 


 

SECTION 34-874 Property development regulations table

 

      Question: (I-XVIII)

Section 34-874, Footnote (3), indicates that boat service buildings or structures may be built up to the mean high water line, in the CM, IM, and PORT districts. Does this include buildings such as covered loading docks for Commercial Fisheries?

      Answer:

Yes, the intent of that wording was to allow buildings and structures which are used to service boats to be placed close to the water.  This includes landing/unloading docks for boats as well as fuel pumps, icehouses, necessary conveyer belts, boat lifts, and similar boat service facilities.

 

 

 

 

Table of Contents

 


 

ARTICLE VI  DIVISION 8  INDUSTRIAL DISTRICTS  SECTION 34-903 Use regulations table

 

      Question 1: (I-XVIII)

Group IV of Section 34-622(c)(48) Stone, Clay, Glass and Concrete products, manufacturing, has not been included as a permitted use in the IG district.  It was included only in the IPD district.  Was this an oversight?

      Answer:

No. This group includes the most potentially obnoxious industrial uses.  As such they need to be reviewed on a case‑by‑case basis as planned developments. 

 

      Question 2 (XIX)

Would an establishment, primarily involved in research and development of drugs and/or cosmetics be a permitted use in the IL Industrial District?  Some of their activities may involve packaging and repackaging of drugs and/or cosmetics or some manufacturing of their research/development products.

      Answer

Yes.  Research and development of drugs would be permitted under "Research and Development Laboratories ‑ Group II" and research and development of cosmetics would be permitted under Research and Development Laboratories ‑ Group IV."  Packaging or repackaging of materials which does not chemically or physically alter the composition of an item is permitted under "Processing and Warehousing."  Some manufacturing would be a recognized ancillary function provided the establishment remains primarily a research and development laboratory.

 

For clarification and in anticipation of a future annotation, even though cosmetics is listed under Chemicals and Allied Products ‑ Group II, it would not be a Research and Development Laboratories ‑ Group III because cosmetics would not be classified as "hazardous materials."

 

 

 

 

Table of Contents

 


 

ARTICLE VI  DIVISION 9   PLANNED DEVELOPMENT DISTRICTS    SECTIONS 34-931 - 34-939

 

      Question 1: (I-XVIII)

There does not appear to be any direct references to water setbacks in the Planned Development zoning districts.  Are there any water setback regulations?

      Answer:

Yes. The minimum required setbacks set forth in Sections 34-2191 to 34-2196  apply to all zoning districts. 

 

      Question 2: (I-XVIII)

Section 34-935 requires different setbacks when adjacent to compatible or incompatible development.  Do we consider IDD canal right‑of‑way or easements to be compatible or incompatible?

      Answer:

Compatible or incompatible to what?  A canal in most instances could be compatible to almost any use.  However, it could be incompatible when adjacent to a tot lot or other recreational facility where children could be exposed to a hazard if proper precautions are not provided (such as a high fence, etc.).

 

      Question 3: (I-XVIII)

Can a utility easement, especially a powerline easement, be calculated as part of the open space requirement for an RPD rezoning request?

      Answer:

The definition of open space lists a wide variety of uses which can be counted as "open space."  The definition also indicates that it must be part of the development site.  Whether or not a powerline easement can be counted depends on a number of variables concerning the legal status of the easement.  If the power company owns the underlying fee and not the developer, then it could not be counted.  If the land is strictly an easement for powerline purposes with all of the development rights remaining with the developer (owner) without approval of the power company required, then it could be counted.  If the power company reserves the right to approve or reject any other use of the property, then it would depend on whether or not the power company will allow any of the open space uses.

 

Easements of this type should be referred to the attorney's office for interpretation of the developer's rights.

 

     Question 4: (I-XVIII)

The use regulations in Section 34-937  apportions gross commercial floor areas permissible based on number of dwelling units.  Is the intent that the "ratios" listed in 34-937(2) be applied to an ALF which intends to have "commercial" (e.g., barbershop, pharmacy, spa) uses within their building which will be solely for the use of the residents (and staff) ‑‑ or ‑‑ are these to be applied only when the commercial uses are primarily the principal use of a building (i.e., in separate buildings from the living facilities)?

      Answer:

The intent of the ordinance was that these ratios apply primarily to principal uses within a planned development.  In the case of an ALF, commercial uses which are customarily accessory and incidental to the principal use which are within the same building as the principal use and which are intended primarily for the use of the residents and staff (e.g., barbershops, pharmacies, spas) would not be subject to the ratios.

 

 

 

 

Table of Contents

 


 

ARTICLE VI  DIVISION 10 SPECIAL PURPOSE DISTRICTS  SUBDIVISION II Environmentally Critical District   SECTION 34-983 Use regulations

 

      Question: (I-XVIII)

      Is "hunting" a permitted use in the EC zoning district?

      Answer:

Hunting is an unregulated (by this Code) use of land which is not prohibited in the EC District.

 

 

 

 

Table of Contents

 


 

ARTICLE VII SUPPLEMENTARY DISTRICT REGULATIONS   DIVISION 2 ACCESSORY USES, BUILDINGS AND STRUCTURES  SECTION 34-1174 Location and setbacks generally

 

      Question 1: (XX)

The Zoning Ordinance previously contained a provision which permitted gasoline or other fuel‑dispensing structures to be set back only 15 feet from the street right‑of‑way.  However, in the current regulations the provision was omitted.  Was this a scrivener's error?

      Answer:

No.  The provision (which carried over from pre‑1986 zoning regulations) conflicted with several new 1986 provisions such as increased setbacks for all structures and buildings from collector and arterial roads and the provision that any deviation from the setback provisions could only be approved by special permit. In addition, the Development Standards Ordinance required a minimum landscaped buffer of 10 feet from the right‑of‑way. The "round three" amendments removed the inconsistency from the ordinance.

 

      Question 2: (I-XVIII)

Section 34-1174 states that accessory structures cannot be built in easements where there are such prohibitions; but, are there any setbacks between the easement and the structure or can the structure be built right up to the easement line?  Doesn't this also apply to a principal structure?  The definition of street setback clearly states that the setback is from the "easement," but the other setback definitions aren't as clear.

      Answer:

With the exceptions of streets, and bodies of water, any "easement" across private  land may be included in calculating setback distance.  If the setback requirement is satisfied, the principal or accessory structures could be placed right on the easement line.

 

      Question 3: (I-XVIII)

Section 34-1174(b) states that "no accessory use, building, or structure shall be located closer to a street right‑of‑way line or street easement than the principal building, except as provided for in Section 34-2192 or as set forth herein.

 

Since parking lots are accessory to a principal use, does this mean that no parking lots are permissible in front of the principal building?

      Answer:

Section 34-1171 "Applicability of Division" sets forth that Sections 34-1171 - 34-1174 do not apply to those accessory uses, buildings, and structures which are incidental and subordinate to the principal use or building and which are specifically regulated elsewhere in this ordinance.  Parking lot setbacks are specifically addressed and therefore are not subject to Sections 34-1171 - 34-1174.

 

      Question 4: (I-XVIII)

In Section 34-1174(d)(3)(b), does "in accordance with the minimum buffering requirements" mean that the accessory structure can not be within the buffer area?

      Answer:

Yes. Unless specifically exempted, all accessory non‑residential buildings and structures must comply with the minimum buffering requirements when abutting any district other than commercial or industrial.

 

      Question 5: (I-XVIII)

The setback requirements for accessory structures or buildings appears to conflict with the requirements of Section 34-935(b) concerning setbacks from development perimeter requirements for Planned Developments.   Which regulation is correct?

      Answer:

Section 34-935(b) supersedes Section 34-1174. Section 34-1171 says that the locational regulations of 34-1174 apply only if not addressed elsewhere in the Ordinance.  Section 34-935(b) is one of these instances where a specific regulation exists which supersedes Section 34-1174.

 

      Question 6: (I-XVIII)

If a barn or stable is constructed on agriculturally zoned property before a residence, and then a residence is built, is the residence an accessory or principal use and which regulations would apply?

      Answer:

This question is too broad for a simple answer.  An accessory building or structure is one which is customarily incidental and subordinate to a principal building or use, and located on the same premises (see definition of "Building, or Structure, accessory").

A barn would be considered accessory to a farming or agricultural use on the same premises.  Even if the barn is the only building, it is an accessory building subordinate to the principal use ‑ agriculture.  Therefore, it would be subject to setback requirements for accessory structures or buildings.

                                                          

A residence should always be required to comply with setbacks for principal buildings.

 

A private stable (defined) is clearly an accessory use for the occupants of the premises and cannot be built prior to the principal residence.

 

A commercial stable (defined) would normally be a principal use, (defined) in which case any residence would be considered a caretaker's residence and require a Special Exception.  A boarding stable could be either the principal use or an accessory use depending on the predominant use of the property.

 

 

 

 

Table of Contents

 


 

SECTION 34-1176 Swimming pools, tennis courts, decks and similar recreational facilities

 

      Question 1: (I-XVIII)

There is no setback or distance separation requirement for a swimming pool or tennis court from the principal building.  Is this an error or omission?

      Answer:

No, this is not an error or omission. The regulations deliberately deleted minimum separation for pools, etc. from the principal building.  Unless there is a building code or fire regulation to the contrary, a pool, tennis court or other recreational facility may be located as close to the other buildings as desired by the applicant, as long as the buildings are under the same ownership and on the same premises.

 

      Question 2: (I-XVIII)

When a fence is used in lieu of an enclosure around a pool, is the setback measured to the pool deck or to the edge of the pool water?

      Answer:

The setback is always measure to the nearest point of a building or structure.  If the deck is part of the pool, you measure to the deck.  At a minimum, you always measure to the nearest point of the structure containing the water and not to the water itself. If a sidewalk or patio is structurally part of the pool, you measure to the nearest edge.

 

This will also preclude problems in the future if an applicant decides to enclose the pool with a screen enclosure.

 

      Question 3: (I-XVIII)

      Are there any height restrictions on pool decks (wood or concrete)?

      Answer:

Pool decks and other accessory structures or buildings are subject  to the same regulations concerning height as the principal buildings (see Sections 34-2171 - 34-2175), unless specifically stated otherwise.  The only additional provisions concerning height of decks applies to screen enclosures.

 

      Question 4: (XIX)

Section 34-1176(c) provides: Every swimming pool shall be enclosed by a fence, wall, screen enclosure or other structure, not less than four (4) feet in height, constructed or installed so as to prevent access to the pool by persons not residing on the property.

 

At what point in time did Lee County Ordinances require fencing of swimming pools? Does this Section apply to swimming pools which predated said effective date.

      Answer:

This requirement to enclose private swimming pools was originally adopted, with slightly different wording, as part of the 1978 Zoning Ordinance in Section 500.14.D which stated:

              

      D. Fencing

 

               1. In‑ground swimming pools

 

a. Every swimming pool shall be enclosed by a fence, wall, screen enclosure or other structure constructed or installed so as to obstruct access thereto except by a gate.

 

               b. Such enclosures for single family dwelling swimming pools shall not be less than four (4) feet in height, and for all other uses covered by this Section the enclosures shall not be less than five (5) feet in height.

 

               2. Above‑ground swimming pools

 

               Every above‑ground swimming pool shall fulfill either the fencing requirements for in‑ground swimming pools, or shall be constructed or installed so as to permit access  thereto only by a gate.

 

Therefore, any pool constructed prior to the effective date of the 1978 Ordinance (February 4, 1978) would be considered a non-conforming use and would not be subject to the 1978 or 1986 fencing requirements.  However, the Health Department may have had regulations for commercial pools.  Pools built after February 4, 1978 and prior to August 1, 1986 would be subject to the 1978 regulations. Pools built after August 1, 1986 are subject to the 1986 regulations.

 

      Question 5: (XXII)

Section 34-1176(c)(1) requires "every swimming pool, hot tub, spa, or similar facility to be enclosed by a fence, wall, screen enclosure or other structure, not less than four (4) feet in height, constructed or installed so as to prevent unauthorized access to the pool by persons not residing on the property."  The ordinance also states that the height shall be measured from the ground level outside of the area so enclosed.

 

If the property fronts on a sea walled body of water, can the seawall act as the barrier to prevent unauthorized access to the pool?

      Answer:

      Yes, provided that:

 

1. The approved fencing or wall which runs perpendicular to the seawall extends to the outer (water side) edge of the seawall; and

 

               2. The top of the seawall is at least four (4) feet above the bottom of the water body adjacent to the seawall.

 

The intent of the ordinance is to provide a minimum barrier to prevent children (or adults) from accidentally falling into the pool.  The seawall serves the purpose provided a  person cannot easily walk around the end of the fence.

 

 

 

 

Table of Contents

 


 

SECTION 34-1178 Guest Houses

 

Question 1: (I-XVIII)

Is it the intent of the Zoning Ordinance to prohibit new guest-houses except on property zoned RSC-2  on Captiva Island that was converted from RS-2 pursuant to section 34-619?

      Answer:

Yes.

 

      Question 2: (I-XVIII)

Guesthouses are defined as accessory buildings.  Does this mean that they are generally permitted as a residential accessory use?

      Answer:

No. Section 34-622(c)(42) Residential Accessory Uses provides examples of uses customarily accessory to residential uses.  A guesthouse is not a customary accessory use for purposes of this Ordinance.  Furthermore, Section 34-1178 specifically addresses guesthouses; and Section 34-3 states the standard rule of statutory construction is that "the particular shall control the general."

 

 

 

 

Table of Contents

 


 

ARTICLE VII DIVISION 3 ADULT ENTERTAINMENT, ADULT BOOKSTORES AND MASSAGE PARLORS 

 

SECTION 34-1204 Prohibited locations

 

      Question 1: (I-XVIII)

Please clarify how the distance measurements are to be made ‑ from what to what?

      Answer:

Section 34-1204(1) states "no use of land shall be closer than 1,000 feet measured on a straight line from the closest wall of any building containing a similar use."  "Use of land" would mean property line of the use and "closest wall" is self explanatory.

 

Section 34-1204(2) states "no use of land ‑‑ any district."  Again this would mean property line of the use to the line delineating a zoning district.

 

Section 34-1204 (3 ) states "no use of land ‑‑ any hotels, motel, restaurant, school (non-commercial), day care center (child), park, playground, place of worship, religious facility, public recreational facility ...."  Section 34-1204(1) specified: "from the closest wall."  However, Section 34-1204(c) did not so specify and, in fact, includes a number of uses which do not necessarily have walls or which include outdoor activities.  the intent therefore, is to measure from property line to property line.

 

      Question 2: (I-XVIII)

Based on the wording of Section 34-1204, is it the intent to restrict these uses from zoning districts which permit both residential and commercial uses?

      Answer:

Yes.  The wording in Section 34-1204(b) states "...from any district which allows residential uses."  The text is clear ‑‑ these uses would not be permitted in or within 1,000 feet of any zoning district which allows residential uses, including C‑1A, C‑1, C‑2, and CT.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 5 ALCOHOLIC BEVERAGES    SECTIONS 34-1263(e) and 34-1264(b)(1)a.

 

      Question 1: (I-XVIII)

Sections 34-1263(e) and 34-1264(b)(1)a. require the 500 foot setback to be measured from any public entrance or exit of the establishment. Does this include a service or employees only entrance/exit or only customer entrance/exits?

      Answer:

The key word here is public entrance or exit.  This word was specifically inserted by the Board of County Commissioners to exclude entrances not used by the public.

 

      Question 2: (I-XVIII)

Does the requirement for either administrative  approval or a special exception (as appropriate) to sell alcoholic beverages for consumption on‑site apply to restaurants which sell alcoholic beverages?

      Answer:

Yes.

 

 

 

 

Table of Contents

 


 

ARTICLE VII DIVISION 12 DENSITY    SUBDIVISION II. Residential Development

SECTION 34-1492 Definitions (3)

 

      Question: (I-XVIII)

Section 34-1492(3) requires pro‑rating the amount of street area that can be used to compute residential density when the street serves commercial or industrial uses as well as residential use.  How is the pro‑rating to be accomplished?

      Answer:

There is no clear way to pro‑rate use, and every case may be different.  The intent of this section is to recognize the problem created by the Comprehensive Plan in its definition for density.  Gross density allows calculation of roads used for residential purposes, but does not include lands used for commercial, office, and industrial uses.

 

If a road strictly serves residential uses or commercial uses it is clear as to when it can be counted as credit toward gross density calculations.  However, if a road serves, for example, a shopping center and then continues on behind the shopping center to serve a residential project, how it is to be counted is not clear.

 

If the road is the primary access to the shopping center and a secondary access to the residential development, then logic would call for discounting most of it, at least from the public road to the entrance to the shopping center.  From the entrance on could be residential.  Conversely, if the road is primarily to the residential project and provides only secondary access to the shopping center, then more of it could be credited toward gross density.

 

In all cases reasonableness should apply.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 15 EXCAVATION ACTIVITIES    SUBDIVISION I GENERALLY

SECTION 34-1651 Required approvals

 

      Question 1: (XXV)

Can excavated materials from the construction of roads, drainage ways, buildings or similar activities be taken off premises without first receiving approval for a Special Exception or Planned Development?

Answer:   

Yes. Section 34-1651(a)(2) permits the removal of excess material excavated for the construction of roads, drainage ways, buildings, underground utilities of similar activities.  Provided that there is an approved development order or building permit and where no material is removed from the premises except surplus material not required for backfill or grading.  Further, the activities listed under Section 34 -1673, as not being applicable to the provisions of Art VII Div 15  Sub II Mining, would also be applicable to Section 34-1651(A)(2) (as exceptions to 34-1651(a).

 

However, this section would not apply to a retention pond or retention pond required for surface water management, which are not similar to the above activities.  Also, retention ponds are addressed under Section 34-1651(b) Excavation for purpose of water retention.

 

      Question 2: (XXV)

Can excavated materials be moved from an abutting parcel or parcels to another abutting parcel (all under the same ownership) for use in road construction?

      Answer:   

Yes, [if part of a Final Development Order.] Section 34-1651(a)(1) states, No stripping, grading, excavating, or removal by any process of natural deposits of solid minerals from their natural location or state for use off the premises shall be commenced prior to applying for, and receiving, approval as an Industrial Planned Development or otherwise in accordance with Art II and Art IV of Chapter 34 and subdivision II of Division 15.

 

In accordance with the definition of "on the same premises" the removal of excavated materials from one parcel to another would be permitted provided the abutting lot (parcel) is in the same ownership. 

 

      Question 3: (XXV)

Can excavated materials be moved from a parcel or parcels to another parcel (all under the same ownership), that are not adjoining or abutting the receiving parcel, where the excavated material is to be used for road construction?

      Answer:

No. The definition of "on the same premises" would not apply, since the properties are not abutting and therefore must be treated as separate and distinct parcels.  Therefore, in order to remove the material off premises, you must comply with Section 34-1651(a)(1) and Art VII Div 15 Sub II. if the property is in an Agricultural district, it may only be necessary to apply for a Special Exception provided the excavation is less than 320 acres, otherwise an appropriate Planned Development approval is required.

 

 

 

 

Table of Contents

 


 

SUBDIVISION II MINING    SECTION 34-1679 Renewal of permit

 

      Question: (I-XVIII)

The way Section 34-1679(c) is worded, permits can be modified merely by making application to the Director.  Shouldn't this also say that they must be approved by the Director?

      Answer:

The intent is clear that approval is necessary.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 17 FENCES, WALLS, GATES AND GATEHOUSES   SECTION 34-1743  Construction of Fences

 

Background:   Section 34-1743(b) states, in part, that "No barbed wire, spire tips, sharp objections, or electrically charged fences shall be erected on a parcel which is located in or within 100 feet of any  residential area or residential zoning district under separate ownership, provided that the parcel is not already separated from the residential area or residential zoning district by a commercial or industrial zoned property or by an intervening street right-of-way or easement over 25 feet in width.  This shall not be interpreted to mean bona fide agriculture uses cannot use barbed wire or electrically charged fences to control livestock when located in districts permitting the raising, keeping, or breeding of livestock."

 

      Question 1: (XXII)

Recently, for security purposes, there has been an interest in allowing fences around developments (such as Mobile Home Parks) to include 2 or 3 strands of barbed wire atop a 6‑7 foot high fence.  Was the intent of this section of the ordinance to prohibit only barbed‑wire fences (such as are used to contain cattle) or does it also preclude the use of barbed wire atop a standard fence as indicated?

      Answer:

The prohibition against barbed wire, spire tips, sharp objects, or electrically charged fences in residential areas or residential zoning districts has been a county regulation since, at least, 1978 where it appeared as Section 500.15.B.12.

 

Because of the wording of the section, i.e., "barbed wire, spire tips, sharp objects or..." the intent was and remains to prohibit these dangerous types of fences except where specifically stated to the contrary. This is further substantiated by Section 34-1748(a) which specifically requires barbed wire on top of an eight (8) foot fence surrounding a substation high‑voltage transformer or other equipment of potential hazard to residents or passers‑by.

 

      Question 2: (XXIV)

Would a property owner, whose property is zoned agriculture but is not used for agricultural purposes, be prohibited from placing barbed wire along those property lines that "abut" a residential area or zoning district?

      Answer:

Yes.  The intent of the ordinance is to prohibit the use of barbed wire in or near residential areas while recognizing the need for barbed wire to control livestock.  Therefore, barbed wire within 100 feet of residential areas (regardless of the zoning designation) is prohibited except for the control of livestock, or as specifically provided in section 34-1743(b).

 

 

 

 

Table of Contents

 


 

SECTION 34-1744 Location and height of fences and walls

 

      Background:  Section 34-1744(a)(3) indicates that no fence shall be "closer than five (5) feet from the mean high water line along natural water bodies including canals, created from sovereign lands, except that, where the canal is seawalled, said fence may be built landward of the seawall."

 

Section 34-1744(b)(3) states, in part, "a fence within twenty‑five (25) feet of a body of water shall be of open mesh screening above a height of 3 ½ feet."

 

      Question 1: (I-XVIII)

"Open mesh screening" is defined in Section 34-1172 concerning swimming pools.  Does that definition apply when used in Section 34-1741 - 34-1750 Fences, Walls, Gates, and Gatehouses?

      Answer:

No. Section 34-1172 specifically states that the definition for "open‑mesh screen" only applies to that section. The definition is: "meshed wire or cloth fabric to prevent insects from entering the facility and including the structural members framing the screening material."

 

In the Board's discussion prior to amending Section 34-1741 - 34-1750, it was clear that the use of the term "open mesh screen" as it applied to fences meant open‑link or chain‑link fencing which would provide a clear, unobstructed view.

 

      Question 2: (I-XVIII)

Can "open‑mesh screen" be interpreted to include a lattice work of wood or other material?

      Answer:

No. As indicated above, when the Board discussed fences it was clear that they were concerned with allowing fences to be used for protection and safety, but that they had to be of an open‑type which would not unneces­sarily obstruct neighbors' view of the water.  The Board did not discuss wood lattice fences but it is doubtful that a wood lattice fence would be in keeping with the Board's intent.

 

      Question 3: (I-XVIII)

Subsection 34-1744(b)(1) states that "in residential areas, any fence or wall located between a street right‑of‑way or easement and the minimum required street setback line, shall not exceed three (3) feet in height. Except that fences may be increased to a maximum height of four (4) feet provided that such fence is of open mesh screening and does not interfere with vehicle visibility requirements (Section 34-3131 at traffic access points."

 

If a single‑family residence was legally constructed closer to the street than is now permitted, does the fence still have to be restricted to three (3) feet [or four (4) feet, as applicable] in height from the right‑of‑way or easement to the minimum required setback line?

      Answer:

      No. The main intent of the ordinance was two‑fold.

 

1. To keep the height of fences and walls (between the right‑of-way and minimum street setback line) to a minimum for the safety of pedestrians and vehicles backing out of the yard, and

 

2. To allow construction of higher fences from the minimum street setback back to the rear lot line for privacy.

 

In the past, the front of the building established the point where fence height had to be lower.  This created an unfair situation for property owners electing to set their residence further back from the street than required by the minimum setback.

 

In those cases where the principal building was lawfully constructed closer to the street than is now permitted, the higher fence would be permitted closer to the street than the setback line, but not closer than the principal building itself.

 

 

 

 

Table of Contents

 


SECTION 34-1748 Enclosure of high-voltage transformers and other utility equipment

 

Background:  Section 34-1748 requires all substations or equipment of potential hazard to residents or passers‑by not otherwise protected shall be enclosed by a chain‑link fence not less than eight feet (8') in height and topped with three strands of barbed wire.

 

      Question: (XXIV)

Would this requirement apply to other utility structures or equipment, such as a water treatment plant, that do not pose a direct hazard to passers‑by or residents?

      Answer:

No. This section only applies to high voltage transformers or utilities or equipment which may pose a direct hazard to residents or passers‑by.

 

 

 

 

Table of Contents

 


 

ARTICLE VII DIVISION 18 HOME OCCUPATIONS  SECTION 34-1772 Permitted uses; operation

 

      Question 1: (XXI)

May I operate a trucking company in my home as a home occupation?  If so, does the ordinance permit me to park and service the trucks?

      Answer:

      A Home Occupation is defined as:

 

"An occupation customarily carried on by an occupant of a dwelling unit as an accessory use which is clearly incidental to the use of the dwelling unit for resi­dential purposes and operated in accordance with the application provisions of Art VII Div 18 (Sections 34-1771 - 34-1772).

 

Section 34-1771 allows the operation of home occupations by right in all districts permitting dwelling units and sets forth the standards for home occupations.  Section 34-1772(a) and (b) are particularly applicable to the question:

 

         1. Any use of a residence for a home occupation shall be clearly incidental and subordinate to its use for residential purposes by its occupants.

 

               2. Such uses shall be conducted entirely within the dwelling unit or customary accessory building.

 

Therefore, by definition, a trucking terminal would not be a home occupation. The ordinance would permit use of the dwelling to conduct the administration of a business provided there are not employees working in the dwelling that are not residents thereof.

 

Vehicles which are licensed for highway use are not con­sidered equipment, if they are used by a resident of the dwelling unit, i.e., each resident who uses a commercial vehicle is permitted to drive it home and park it, although repair or servicing a commercial vehicle or equipment in a residential district is not allowed.

 

While the ordinance does not address parking of commercial vehicles in residential districts, Section 34-2019 pro­hibits the repair, dismantling or servicing of commercial vehicles or equipment in off‑street residential parking areas.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 24 MODEL HOMES, UNITS AND DISPLAY CENTERS   SECTION 34-1954 Model homes and model units

 

      Question: (I-XVIII)

Section 34-1954(B)(2) requires all model homes be connected to water, sewer and electricity.  Does "sewer" include septic tanks?

      Answer:

Yes. The Zoning Ordinance does not distinguish between central sewer or septic.  Other regulations may or may not indicate otherwise however.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 26 OFF-STREET PARKING   SECTION 34-2011 Applicability of division

 

      Question: (I-XVIII)

When computing parking for a change of use permit, what happens to existing parking spaces that presently are backing out onto a right‑of‑way. The DSO prohibits backing out onto a right‑of‑way, so should we not count those spaces when computing required spaces?

      Answer:

Section 34-2011(b) addresses existing developments.  Subsection (3) says "when the use of a building is changed to a different conforming use which is required to have more parking than is presently provided, the additional parking shall be provided."

 

The emphasis is on additional parking.  If the existing parking "lawfully exists", i.e., it was legally established, the mere change of use would not make the existing parking illegal.

 

 

 

 

Table of Contents

 


 

SECTION 34-2015 Location and design generally   Valet Parking: (XXIX)

 

      Question 1:

What is Valet Parking? If a parking facility has a parking attendant  to direct cars to parking spaces, is that the same as valet parking?

      Answer:

Section 34-2015(2)(c) briefly addresses the issue of Valet parking when it indicates that:

 

               Stacking of vehicles (one behind the other) shall be permitted only where each dwelling unit has a specific garage or driveway appurtenant to it and in valet parking facilities wherein parking is performed only by employees of the facility."

 

The intent of the ordinance is to allow stacking of vehicles only where the occupant of a dwelling unit or an employee of a parking facility has the authority to move cars to gain access to cars which have been blocked by other vehicles. Therefore, attendant parking is not the Same as Valet Parking. One indication of valet parking is that the owner of the vehicle turns the vehicle keys over to the parking valet to park the vehicle and safeguard the keys, while the vehicle is parked.

 

      Question 2:

      What Uses may use valet parking?

      Answer:

The ordinance does not restrict use of valet parking either by land use or by zoning district. However, valet parking is most often associated with restaurants, night Clubs, etc. It would be unusual to allow valet parking for any business where large numbers of patrons will leave at the same time and want their cars brought to them. Uses such as theaters, arenas, cruise ships, stadiums, etc. would not normally offer valet parking.

 

     Question 3:

Does the use of Valet Parking reduce the number of parking spaces required or whether or not paving is required?

      Answer:

No. Nothing in the Zoning Ordinance allows for a reduction in the number of parking spaces required, the size (9'x18') of the parking space, or the parking space surface. The only modification       to the parking regulations is that each individual space would not have to be accessible at all times from a parking aisle (stacking).

 

      Question 4:

      Does the use of Valet Parking affect the location of the parking spaces?

      Answer:

No. Section 34-2015 (1) states: "...all required parking spaces shall be provided on the same premises and within the same or similar type zoning district as the use which they serve".

 

On the same premises is defined as "...being on the same lot or building parcel or on an abutting lot or adjacent building in the same ownership".   

 

      Abutting means "..properties having a boundary line, or point or portion thereof, in common with no intervening street right-of-way or easement, or any other easement over twenty-five (25) feet in width."

 

Nothing in the ordinance allows for deviating from the location standards when valet parking is used.

 

      Question 5:

      Can public parking and valet parking be located within the same parking facility?

      Answer:

Yes,  but not within the same area. The area used for valet parking must be clearly marked and not accessible to the public.

 

      Question 6:

Where a parking facility offers both public parking and valet parking, if the public portion fills up and portions of the valet parking area are still vacant, can the public use the valet parking area?

      Answer:

No. Mixing of public parking and valet parking could create chaos if the public were to block another vehicle. 

 

      Question 7:

What happens when a use which proposes valet parking to use valet parking ceases the practice after receiving an occupancy permit.

      Answer:

Unless there are sufficient parking spaces which comply with the Zoning regulations, the facility would be in violation of the ordinance.

 

 

 

 

Table of Contents

 


 

SECTION 34-2016 Dimensional requirements; delineation of parking spaces

 

      Question: (I-XVIII)

Sections 34-2016(2)a.2. and b.1. require a parking block to be 2 feet from the end of the parking space.  Does the 2 feet count as part of the required dimension for the space,  or is it in addition to the space?

      Answer:

The two feet is part of the required space and is not in addition to it.

 

For example, if the required space is 9 x 18, the block as 2 feet back from one end and sixteen feet back from the "entering" end.

 

 

 

 

Table of Contents

 


 

SECTION 34-2018 Joint use of off-street parking lots

 

Scenario:  The developer of an outparcel adjacent to a shopping center has an agreement with the shopping center to use part of the center's parking spaces to help off‑set his required parking.  According to the developer, he has an easement to use the parking spaces for his exclusive use.  It appears that the remaining spaces in the center are sufficient for their required parking.

 

      Question 1: (I-XVIII)

      Is this arrangement considered joint parking?

      Answer:

Yes.  The site plan submitted shows the parking spaces in question as an integral part of the shopping center parking lot, in that common entrances and aisles are used.  Inasmuch as there is no way to physically separate the parking and to clearly designate patron use, the spaces would be available to either the shopping center patrons or patrons of the outparcel development and would be considered joint parking.

 

      Question 2:

Does this arrangement require any type of county approval?

      Answer:

Yes.  A special exception   is required.  Section 34-2015(1) Location and Design Generally requires that "except for parking lots zoned CP or as provided in section 34-2018, all required parking lots shall be provided on the same premises and within the same or similar type zoning district as the use which they serve."

 

"On the same premises" is defined as being on the same lot ‑‑or abutting lot ‑‑ in the same ownership.

 

Section 34-2018(a) specifically states that if not part of a planned development, then a special exception is required.  The reason for requiring the special exception is so that the county can be assured that the parking spaces will be available in the future, and to assure that they are not "double counted" in the event the shopping center expands.

 

 

 

 

Table of Contents

 


 

SECTION 34-2019 Other use of off-street parking lots

 

      Question: (I-XVIII)

Section 34-2019(2) references Section 34-3048 "Ancillary temporary uses in parking lots" which allows for seasonal promotions, sidewalk sales, and parking lot sales; does it also allow for the use of banners or temporary signage for grand openings and other promotions such as those which are common at auto dealerships and fast‑food restaurants?  Also, could such signage be regulated by the Director through the issuance of a special permit, or would it be prohibited by the Sign Ordinance which has no specific provision for such events?

      Answer:

No to all questions.  The Zoning Ordinance does not set forth regulations concerning signs, but consistently refers to the Lee County Sign Ordinance.  Therefore, to determine answers to your questions you need to review the Sign Ordinance. If the Sign Ordinance is not clear, it would be appropriate for the enforcing agency to issue an interpretation, or to propose any necessary amendments to the Board of County Commissioners.

 

 

 

 

Table of Contents

 


 

SECTION 34-2020 Required spaces

 

      Question 1: (I-XVIII)

Both Sections 34-2020(2)j. and 34-2020(3)c. list Contractors and Builders.  Which section is to be used?

      Answer:

This depends on the type of operation.  If strictly an office without a fleet of vehicles, use Section 34-2020(2)j. However, if the establishment stores a fleet of trucks, special vehicles, etc., and does not normally generate customer traffic, then you can use Section 34-2020(3)c.

 

      Question 2: (I-XVIII)

Food preparation and delivery services (i.e., Domino's Pizza) are becoming more common and are not specifically addressed by definition or in the use groups.  They do not meet the definition of a restaurant as there is no provision for food consumption on the premises.  These are strictly delivery services with an incidental take out trade.  How would the required number of parking spaces be determined?  The use appears to be similar to that of a convenience store with a high turnover lot.

      Answer:

If the use is in a free‑standing building, the parking would be calculated based on Small Products (1 space per 200 square feet of total floor area, minimum of 5 space).  If the use is in a multiple occupancy complex, the calculation would be based on the appropriate Multiple Occupancy Complex requirements.

 

      Question 3: (I-XVIII)

What effect does the addition of fuel pumps have on the parking and traffic circulation requirements?

      Answer:

Fuel pumps do not require parking spaces.  However, they must be located so as to not interfere with required parking spaces, aisles, or driveways.

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 27 PLACES OF WORSHIP AND RELIGIOUS FACILITIES   SECTIONS 34-2051 - 34-2053

 

      Question 1: (I-XVIII)

In many residential zoning districts, existing "Places of Worship" are permitted by right, but new "Places of Worship" require a Special Exception.

 

If a Place of Worship was approved by Special Exception, and later moves to another location, can it rent/sell its former  facilities to another Place of Worship without the new Place of Worship obtaining a Special Exception?

      Answer:

Yes, provided all applicable regulations are met such as parking and any special conditions required at time of approval. A Special Exception runs with the land and is not restricted to a specific applicant.

 

      Question 2: (I - XVIII)

Although schools are mentioned in definitions, day care is not specifically addressed (although definition of day care does indicate that they are a "school" of sorts).  Can an individual obtain an occupational license for a day care on church property or must the church itself obtain the occupational license?

      Answer:

A Place of Worship is limited to church/synagogue‑related religious functions.  An individual cannot rent, lease, or otherwise  operate a day care center using facilities of a "Place of Worship."   The “Place of Worship” may operate a day care center if it is primarily for church members.

 

      Question 3: (I - XVIII)

In calculating the required  parking for a religious  facility, do you use that use(s) that creates the greatest  demand at any one time and use that number of spaces as the required number of parking spaces for the entire facility (including all uses)?

      Answer:

Not quite.  Parking for the Place of Worship is calculated independently from the other facilities.  Parking for other facilities is calculated based on Section 34-2011 - 34-2022 requirements.  If the other facilities are not used at the same time as the Place of Worship or are used but will not generate additional parking demand (such as a school for children of parents attending church (services) then no additional parking is required.

 

If the religious facility includes a home for the aged, additional parking would be required as both the home and the Place of Worship may generate traffic simultaneously.

 

The intent is to provide  adequate parking for reasonably anticipated peak use.

 

 

 

 

 

Table of Contents

 


 

ARTICLE VII  DIVISION 30 PROPERTY DEVELOPMENT REGULATIONS   Subdivision III. Setbacks    SECTION 34-2192 Street setbacks

 

      Question 1: (I-XVIII)

Subsection 34-2192(a) contains a table of setbacks from various street classifications.  Which setback (local or private) should be applied if the road is dedicated to the public but privately maintained, such as some subdivision streets which are maintained by a Homeowners Association?

      Answer:

The setback required would be the same as for a local street.  The private street setback is intended only for those streets which are privately owned and privately maintained.  Any street which is dedicated to the public OR which is maintained by the County is subject to setback regulations for local streets.

 

      Question 2: (I-XVIII)

Subsection 34-2192(a) refers to arterial, collector, local and private roads.  How would I‑75 be classified?

      Answer:

I‑75 is identified as a Freeway on the Trafficways Map.  However, for purposes of establishing setbacks only, I‑75 shall have the same setbacks as set forth for Arterial roads.

 

 

 

 

Table of Contents

 


 

SECTION 34-2194 Setbacks from bodies of water

 

      Question 1: (I-XVIII)

Section 34-2194(b) states that you must comply with the setbacks from natural bodies of water as set forth in the zoning district property development regulations.  What is the setback from artificial bodies of water?

      Answer:

The setbacks listed in the individual zoning district property development regulations do not distinguish between natural or artificial bodies of water.  The setback is from any "water body."  In that case, refer to the definition of "Water, Body of" and you will see it includes both artificial and natural.  Therefore the minimum setback applies to either.

 

      Question 2: (I-XVIII)

Section 34-2194(c) specifically references required setbacks from "seawalled" bodies of water. Would a "rip‑rap" wall be considered the same as a "seawall"?

      Answer:

Yes, in this context. The intent of the setback requirements is in addressing unprotected banks.  Rip‑rap or seawalls are both forms of bank protection.  Setbacks for rip‑rap shall be measured from the most landward point of the rip‑rap to the nearest point of the building or structure.

 

      Question 3: (XIX)

What is the setback requirement for a Boathouse?  Is it subject to the same setbacks as set forth in Section 34-2194 Setbacks from Water?

      Answer:

No.  Boathouses are not subject to the setback requirements set forth in Section 34-2194.  Subsection 34-2194(c)(2) indicates that Docks, Seawalls, other Watercraft Landing Facilities are subject to Section 34-1863 which states:

 

34-1863 Construction and maintenance of docks, seawalls, and other structures designed for use on or adjacent to waterways

 

Construction, placement, erection and maintenance of docks, mooring piles, seawalls, watercraft landing facilities and other structures designed for use on or adjacent to waterways shall be in compliance with established building permit procedures and with Chapter 26, Article II. See division 2 of this article.

 

 

 

 

Table of Contents

 


 

SECTIONS 34-2222 Lots created after January 28, 1983

 

      Question: (I-XVIII)

      In referring to "lots", what does the term "created" mean?

      Answer:

A lot is "created" as set forth in Section 34-3272 of this Ordinance. In addition, and for purposes of Section 34-2222 only, a lot is considered "created" if it was part of a proposed subdivision or other development which had received formal county approval prior to the effective date (January 28, 1983) of the Development Standards Ordinance and subsequently was formally exempted from the provisions of said Ordinance, in accordance with Section B.1.b.(1)(a) [now LDC section 10-174(7)]. 1982 Development Standards Ordinance, as amended, or which would qualify for such exemption if a formal request was made.

 

 

 

 

Table of Contents

 


 

ARTICLE VII DIVISION 35 SPORTS/AMUSEMENT PARKS AND RECREATIONAL FACILITIES   SECTION 34-2478 Parking

 

      Question: (I-XVIII)

Section 34-2478 indicates that the Board of County Commissioners may allow up to fifty (50) percent of the required parking to be met off‑site if certain provisions are met.  How and when does the Board determination approval get made?  Does the developer have to apply for a Special Exception?

      Answer:

Section 34-2478 refers you to Sections 34-2011 - 34-2022 concerning Off‑Street Parking Requirements.  Several methods exist by which the Board of County Commissioners can waive certain requirements: Section 34-2017(c) addresses temporary lots and 34-2018 addresses joint parking facilities. In addition, Planned Developments can also request deviations.

 

 

 

 

Table of Contents

 


 

ARTICLE VII DIVISION 36 STORAGE FACILITIES AND OUTDOOR DISPLAY OF MERCHANDISE    SECTION 34-3005 Storage facilities

 

      Question: (I-XVIII)

Section 34-3005(B) "Storage, Open" requires out‑of‑door storage areas to be "shielded behind a continuous visual screening at least eight (8) feet in height when visible from a residential use or residential  zoning district, and six (6) feet in height when visible from any street right‑of‑way or street easement".

 

Does this mean that a "plant nursery" must be shielded?

      Answer:

Any storage other than the plants themselves must be screened.  However, the plant stock can serve as the screening provided it effectively shields the non‑plant storage items from view and that the plant stock itself is not displayed on shelving, etc.

 

Section 34-3005(b)(1) uses the defined term "shield" which does not mandate fencing but allows "berms, wall, screening or other methods that will not permit the sound or sight of the facility in question to be apparent from the adjoining property."

 

 

 

 

Table of Contents

 


 

ARTICLE VII   DIVISION 37 SUBORDINATE AND TEMPORARY USES   SECTION 34-3021 Subordinate uses

 

      Background: (XXVI)   Art VII Div 37 Sub I refers, in section 34-3021, to uses that may be permitted by right or Special Exception provided said uses are clearly subordinate to a permitted principal use and are in compliance with the regulations set forth in Section 34-3021. Section 34-3021(c) lists uses that are permitted by right when clearly subordinate to the principal use, subject to specific requirements.

 

Also, this section requires the use to be totally within the building housing the principal use, to occupy less than 10 percent (10%) of the total floor area of the principal use, and public access to the commercial uses must not be evident from any abutting street.

 

      Question:

Would off‑street parking requirements be applicable to subordinate uses for Hotels/Motels, Multi‑Family Buildings, Social Services‑ Groups III‑IV, Health Care Facilities‑Groups I, II and IV, Cultural Facilities, and office complexes containing 50,000 square feet or more of floor area on the same premises?

      Answer:

No. Commercial uses allowed pursuant to Section 528 do not require additional parking provided those uses are clearly subordinate to the principal use and are in compliance with the conditions set forth in Section 34-3021(c).

 

 

 

 

Table of Contents

 


 

ARTICLE VIII NONCONFORMITIES   DIVISION I GENERALLY    SECTION 34-3204 Mobile home and recreational vehicle unit replacements and roof repairs

 

      Question 1: (I-XVIII)

If a mobile home or recreational vehicle is replaced under this provision, can accessories that have been detached from the old unit be re‑attached to the new unit, even if the attachments would not be permitted under the current regulations?

      Answer:

Yes. It was the intent of the BOCC to allow the replacement of the units without interfering with existing  attachments.  If an existing attachment is removed for purposes of replacing the mobile home or RV unit, it may be re‑attached to the new unit.  However, it cannot be enlarged.

 

      Question 2: (I-XVIII)

The applicant is required to furnish proof that the unit to be repaired or replaced existed prior to the new Zoning Ordinance (1986). Do tax records, tag registrations, etc. give the unit size?

      Answer: 

Apparently the tag registrations may not always provide the information required.  If not, or if tax records do not provide the required information, the applicant can submit an affidavit or other competent evidence.

 

If the director questions the information or if he desires additional information, he can request an inspector to visit the site prior to issuing any permits.

 

      Question 3: (I-XVIII)

      Section 34-3204 allows re‑roofing and roof repairs.  Does this include "roof‑overs"?

      Answer:

"Roof‑overs" which are physically attached to, and become part of, the original roof are permitted.  However, the term "roof‑over" shall not be interpreted to mean any roofed structure or contrivance which is support by members attached to, or otherwise setting directly on, the ground.

 

 

 

 

Table of Contents

 


 

ARTICLE VIII  DIVISION 3. NONCONFORMING BUILDINGS AND USE OF BUILDINGS

SECTION 34-3241 Nonconforming buildings and structures

 

      Question: (I-XVIII)

Section 34-3241(B) states that a "nonconforming structure damaged by fire or other natural forces may be reconstructed at, but not to exceed, the lawful density and/or intensity existing at the time of destruction; provided, however, that the reconstruction of said structure is consistent with federal, state and local regulations and all other provisions of this Ordinance."  What does this mean?

      Answer:

This is a very complex issue and will, in most cases, have to be referred to the attorney's office for a ruling.  Compounding the problem are issues including:

 

         a. The legal status of the lot on which the building or structure is located: If the lot is not a legal lot of record, the provisions of 34-3272 must be reviewed.

 

               b. The use of the property:  If the use is not a permitted use, the provisions of Sections 34-3221 - 34-3224 and 34-3242 must be reviewed.

 

               c. Other federal, state or local regulations: If above regulations exist which would prohibit reconstruction or limit reconstruction, these provisions would have to be reviewed.

 

Assuming that the lot is a legal lot of record, the use is a permitted use, and that there are no federal, state or local regulations prohibiting reconstruction, the provisions of Section 34-3241(B) AND 34-3203 are reviewed.

 

The second paragraph of Section 34-3241(B)(2) exempts lawfully existing single‑family  residences and mobile homes from the above concerns by allowing replacement (if the new unit is no larger in area, width and depth than the unit being replaced) in the exact location of the original.

 

In essence, with the exceptions provided for single‑family residences and mobile homes, any nonconforming structure can be replaced exactly as it was (in relationship to the particular requirement which made it a nonconforming structure) but all other provisions must be adhered to, such as parking, buffering, height, bulk or other dimensional requirements.

 

      Question 2: (I-XVIII)

Section 34-3241(b)(2) allows reconstruction of nonconforming structures damaged by fire or other natural forces. When did or does the destruction have to occur to comply with this section?

      Answer:

Assuming that the lot is legal and the use is a conforming use, indicating that the only problem appears to be a nonconforming building or structure, there is not (at this time) any time limit for replacement.

 

      Question 3: (XXII)

Does the term "natural forces" as set forth Article VIII nonconformities, include such destruction to the structure as a result of termites, salt air, or other natural elements?

      Answer:

No. The term "natural forces" includes such activities as hurricanes, tornadoes, floods, or other such immediate occurrences.  Salt destruction or termites fall under the classification of normal war and tear.

 

 

 

 

Table of Contents

 


 

ARTICLE VIII  DIVISION 4 NONCONFORMING LOTS   Section 34-3272 Lot of record defined; general development standards

 

      Question: (XXIV)

A subdivision platted prior to 1962 has received lot of record status under Section 34-3272. If a number of these lots are subsequently recombined (under today's regulations), as an example three lots into two, would these recombined lots be required to meet the minimum requirements of the Zoning Ordinance and, if not, would variances be required?

      Answer:

No. Section 34-3272(3)b. states, in part, that "contiguous lots of record may be combined and re‑divided to create larger dimension lots of record as long as such recombination includes all parts of all lots and existing allowable density is not increased".  Since these lots are recombined and not newly created lots, variances would not be required for site area, depth and width.  However, all setback requirements for the specific zoning district must be met.

 

 

 

 

Table of Contents

 


 

Section 34-3275 Commercial or industrial use

 

      Question: (I-XVIII)

An applicant owns three small contiguous lots which were platted around 1925.  These lots were recently zoned from AG to IL but the Board denied requested variances. The lots to not meet the requirements for IL but do exceed the nonconforming minimum size of 4,000 square feet and 40 x 75 foot dimensions. The owner wishes to sell them individually and believes that Section 34-3275 exempts him from needing variances from the IL lot requirements.

      Answer:

Yes, he is exempt from needing variances.  Under the provisions of Section 34-32754, if the lots exceed 4,000 square feet with  minimum 40 x 75 foot dimensions, and if the property is currently zoned for commercial or industrial use, then it can be used and the owner is not required to combine them  However, the owner must be able to comply with the setback requirements set forth in Section 34-3275(1), as well as provide room for the use anticipated, including open space, parking access, surface water management, and buffers where required.

 

      In the case of a 50 x 80 foot lot, created prior to June, 1962, setbacks required would be:

               a. Side yards ‑ 20% or 15 feet, whichever is less. In this case, 20% of 50 feet equals two side yards of 10 feet each.

               b. Street‑Setbacks on a local (public) street, the minimum is 25 feet.

               c. Rear‑Setback: 1/2 times (depth of the lot less the street setback), but not less than 5 feet or more than 25 feet.

In the example, the rear setback is 27 ½ feet (80 feet less 25 foot street setback = 55 feet, divided by 2 = 27 ½ feet). Maximum required is 25 feet.

 

               d. The buildable area of this 50 x 80 foot lot is 30 feet wide by 30 feet deep.  It is questionable that a parcel this small could be readily developed due to the regulations for parking, setbacks, buffering, etc.

 

 

 

 

Table of Contents