Land Use Policy Analysis: Zoning Ordinance Evaluation ...

Land Use Policy Analysis: Zoning Ordinance Evaluation Submitted by:

April 2, 2018

Table of Contents

Overview ................................................................................................................................................................................................................................. 3

Purpose and Scope ................................................................................................................................................................................................... 3

Process ........................................................................................................................................................................................................................4

Analysis Summary .................................................................................................................................................................................................................. 5

Zoning Ordinance Analysis................................................................................................................................................................................................... 5

Recommendations ................................................................................................................................................................................................................. 7

Next Steps ............................................................................................................................................................................................................................... 8

Report Conclusion ................................................................................................................................................................................................................. 8

Diagnostic Appendix ............................................................................................................................................................................................................. 9

Zoning Ordinance Diagnostic Matrix...................................................................................................................................................................10

City of Portsmouth Land Use Policy Analysis: Zoning Ordinance Review

Final Report April 2, 2018

Overview

Purpose and Scope

The City of Portsmouth undertook an extensive Zoning Ordinance revision in 2009 – 2010 to improve the Ordinance’s organization and clarity. The revision included the adoption of two form-based codes which apply to the Downtown and Uptown areas of the City. The form-based code sections have created development and zoning administration challenges in the City. At their February 2017 retreat, City Council prioritized the overhaul of the Zoning Ordinance to address these challenges, Portsmouth is also updating its Comprehensive Plan, which is anticipated to be completed in June 2018. Revisions and/or additions to the Zoning Ordinance may be required to implement the goals/policies established during the plan update process.

The Berkley Group, a Virginia-based local government consulting firm, was retained by the City and charged with the following tasks:

Review the existing Zoning Ordinance and related planning documents. Identify Code of Virginia mandates to be incorporated into the new Zoning Ordinance. Identify best practices recommendations for the new Zoning Ordinance to meet other federal and state requirements, and to align the Ordinance with applicable City policy documents. Recommend areas of the current Ordinance to incorporate into the new Zoning Ordinance. Submit a Summary Report of the consultant’s findings and recommendations. Draft a new Zoning Ordinance for the City.



Process

The project began with a review of the City of Portsmouth Zoning Ordinance to consider its adherence to state law and best practices. The Berkley Group reviewed and identified sections of the current Ordinance that were not in compliance with mandatory provisions

of the Code of Virginia as required by 15.2‐2204 through 15.2‐2329.

The Berkley Group performed a full review of the City’s existing Zoning Ordinance and other relevant planning and land use tools and documents to provide a historical reference and framework for the Zoning Ordinance analysis. This task included the identification of optional provisions that may be of interest to the City during the Ordinance re-write phase based upon long-range planning goals, staff resource efficiency, and Ordinance administration needs.

The Berkley Group’s review was supplemented by guidance from City staff from within and outside the Planning Department. The Berkley Group conducted stakeholder interviews with City leaders and members of the local development community. Moreover, City residents participated in a public workshop on September 14th, 2017 at Bide-a-Wee Golf Course, giving their expectations for the objectives to be accomplished by the new Zoning Ordinance.

The review process documents the identified deficiencies and makes recommendations for improvements. A diagnostic matrix was created for the Ordinance to analyze and critique the structure, content, and focus. This diagnostic matrix is attached as an appendix to this report for easy reference and examination.

Specific actions are recommended to improve the consistency, clarity, and completeness of this land use tool, which will also improve its understanding and use by public officials, citizens, and other stakeholders.



Summary

The new Zoning Ordinance, when compared to the current regulations, will be a streamlined, clear, and user-friendly document.

The City’s new Zoning Ordinance will be easily administered by staff and reflect best practices in zoning for Portsmouth so it can successfully assist in implementing the City’s vision, goals, and objectives.

The Zoning Ordinance will be rewritten in a manner that acknowledges all requirements of federal and state law, while removing extraneous regulations which conflict with enabling legislation.

The current Ordinance contains a labyrinth of standards and procedures which inhibit compliance and enforcement by both staff and developers.

Zoning Ordinance Analysis

The Zoning Ordinance is the primary tool Virginia localities use to implement their Comprehensive Plan. The City’s current Zoning Ordinance can be improved and simplified to better manage land development activities. Numerous sections will need to be amended to comply with the Code of Virginia.

Clarity

One of the primary targets for improvement will be clarifying the City’s zoning regulations. These regulations should be restructured and streamlined so that the new Zoning Ordinance is a more user-friendly tool for staff and citizens. Instead of having numerous sections, subsections, paragraphs, and subparagraphs, the organization of the new Ordinance should be simplified so that references to zoning regulations can be easily cited. Additionally, all zoning regulations should be consolidated into a single document.

Eliminating the use of appendices for supplemental regulations reduces the likelihood of overlooking requirements.

The zoning district regulations should be uniformly structured. Each district should have a clear intent, list of by-right uses and conditional uses, bulk standards (height, setback, etc.), lot standards (area, width, frontage), and use performance standards as applicable. Tables can be an effective way to present these regulations.

For sign permits and similar planning reviews where visual aids would assist with regulation, diagrams can be incorporated into a supplementary Design Standards Manual for use in the office and on the City’s website.

Ease of Administration

The Zoning Ordinance should consolidate all administrative authority under the Zoning Administrator. As written, the Zoning Ordinance splits zoning administration duties between the Planning



Director and the Zoning Administrator. The Planning Director should not be named with zoning administration duties in the Zoning Ordinance. The new ordinance should assign most, if not all, these duties to the Zoning Administrator. This consolidation efficiently uses staff resources by giving enforcement inspectors and other staff a singular authority for assistance on zoning matters.

The Zoning Ordinance should be an accurate reflection of, and a support to, the City’s operations. For example, the Zoning Ordinance currently includes provisions permitting the acceptance of cash proffers. While the City does not typically accept cash proffers, the new ordinance will provide the City with all eligible proffer authorities enabled in the Code of Virginia, including cash. These proffer regulations will conform to all applicable state law, and give the City maximum flexibility for reviewing rezonings.

Federal and State Compliance

Portsmouth’s zoning regulations will require new sections to comply with federal telecommunications law and recent amendments to the Code of Virginia. The City recently revised its Sign Ordinance to comply with the 2015 Reed v. Gilbert Supreme Court decision. The revised sign regulations will be incorporated into the new Ordinance and reformatted where necessary for ease of administration. The diagnostic tool used to assess the current Zoning Ordinance itemizes each State Code section that must be addressed.

Specifically, the City must amend the Zoning Ordinance to account for the following needs:

Changes to the criteria used in the review of variances that were adopted by the General Assembly in 2015.

Current plan of development submission, review, and approval processes should align with Code of Virginia requirements.

The Code of Virginia defines group homes, family day homes, and other uses with standard language that should be reflected in an identical fashion in Portsmouth’s zoning ordinance.

In 2017, the General Assembly adopted regulations mandating the inclusion of local regulations for small cell facilities. Any changes to telecommunications regulations made as part of the Generaly Assembly’s 2018 session will need to be incorporated.

Changes to local governments’ authority for accepting residential proffers per 2016’s SB549.

Local governments must comply with Congress’s adoption of the 2012 “Spectrum” Act, allowing certain types of new telecommunications technology to have expedited permit processing.

Any other applicable changes to state law adopted during the 2018 General Assembly session.

Eliminate Surplus Procedures and Operations

As currently written, the Zoning Ordinance includes surplus language describing internal processes and procedures which do not need to be in the Ordinance. The Zoning Ordinance is not intended to be a tool for management purposes. Language requiring mandatory procedures for staff review on applications, preparation of staff reports, etc. should be relocated to a departmental Standard Operating Procedures document. The City should consider developing an Application Acceptance Policy which can include checklists, development review procedures, and other information that is better suited as a policy document rather than within the zoning regulations.



Specific Recommendations The following recommendations should be considered by the City of Portsmouth to update the zoning ordinance and implement the City’s vision.

➢ Similar uses (ex. Open Space; Open Space, active; Open Space, common; Open Space, passive; Open space, private; and Open space, set-aside) can be combined under a common definition which is clearly and succinctly defined. All uses should be clearly defined.

➢ Streamline sections of the Zoning Ordinance to cite and summarize the Code of Virginia instead of repeating it.

➢ Apply a uniform format for each zoning district’s regulations, with a purpose & intent statement, by-right uses, Use Permit uses, bulk standards, and lot standards.

➢ The Zoning Ordinance should incorporate standard zoning terminology and methods for measurement (sign area, setback, etc.), and yard determination (front, side, rear, double frontage, etc.). Standardizing these terms will fix current issues with determining front yards, determining what is a street, and clarifying issues related to through/double frontage lots.

➢ Revise definitions so that terms such as family do not contain regulatory language to ensure that staff and members of the public do not overlook applicable regulations.

➢ All zoning regulations pertaining to proffers must have basis in enabling legislation in the Code of Virginia, with particular emphasis on compliance with 2016’s SB549 which dealt with unreasonable proffers for residential rezonings.

➢ Consolidate all administration authority to the Zoning Administrator, where applicable.

➢ Review the telecommunications regulations to identify changes based on legally mandated updates.

➢ Remove all application acceptance language except for language

granting the Zoning Administrator the authority to require submission materials necessary for staff to review the applicant’s request. Application acceptance language can be preserved in a separate Standard Operating Procedures manual.

➢ Replace D1 and D2 districts with district regulations that meet the vision and goals in the new Comprehensive Plan for that area of the City. This work needs to incorporate the Planning Department’s other ongoing work, such as the D2 Land Use Plan and the parking analysis. The D1 subdistricts and the SD district will be renamed and revised. The permitted residential densities in each district will be reviewed and updated. Design standards which do not meet the existing development pattern, such as the 30-foot setback parking line, shall be removed.

➢ Incorporate port and waterfront uses into the Zoning Ordinance. Assess the costs and benefits of establishing working waterfront development areas, which were recently enabled by the General Assembly.

➢ The one-year time limit for resubmission of certain development applications is optional, and the City should assess whether to carry it forward. If this requirement is desired, it should only be used for the application types permitted by State Code.

➢ Reduce the number and complexity of use and design standards.

➢ Implement other recommendations as documented in the diagnostic matrix (attached).

➢ Revise the minimum residential lot sizes based on Planning Department analysis to curtail incompatible subdivisions of existing lots within established neighborhoods.



Next Steps

With the work to update the Comprehensive Plan nearing its conclusion, revising the City’s Zoning Ordinance will be a critical element to implement the goals and vision of the new plan. The City has retained the Berkley Group to draft the new Zoning Ordinance. The Berkley Group will work closely with the City during the drafting phase to ensure the City’s vision and goals are captured. To ensure that key policy issues, such as changes to the D1 and D2 Districts to remove the form-based code, are conducted in a manner acceptable to the City, the Berkley Group can brief the Planning Commission at the beginning and near the end of the drafting process to collect feedback and comments. Once this task is completed, the City plans to update the Subdivision Ordinance to better align with the new Zoning Ordinance and Comprehensive Plan.

Report Conclusion

Portsmouth’s commitment to planning for the future is commendable. The City’s Zoning Ordinance is in immediate need of revision and restructuring to comply with Code of Virginia requirements, enhance clarity and ease of administration, and effectively implement the City’s goals.

The recommendations outlined in this report, and the accompanying Diagnostic Appendix, constitute a detailed analysis of the City’s primary land use regulatory tool, the Zoning Ordinance. Current efforts to update the City’s Comprehensive Plan and revise the zoning regulations can effectively guide high quality development and realize the community’s vision. The Zoning Ordinance should be one of the City’s primary economic development tools.

The City of Portsmouth has ample opportunities for revitalization, and has recognized that having strong, modern regulations to foster economic development is essential. Revising the City’s zoning regulations is a primary need along with aligning that tool with an updated Comprehensive Plan. Keeping these land use tools up-to-date moving forward should be another commitment the City upholds consistently.

DIAGNOSTIC APPENDIX

City of Portsmouth Zoning Ordinance Diagnostic Matrix

VA Code

Section Intent Compliance

Existing ZO Section

Consultant Comments/Recommendations

2204 Advertisement of plans, ordinances, etc.

Yes §40.1-2.2(J)

2204 gives the City flexibility to meet the state's public requirements without incorporating them into Portsmouth's zoning ordinance. Recommendation would be to include a state code reference in the new zoning ordinance that confirms the City's adherence to public notice requirements. Requirements for notifying nearby military installations and adjacent localities can be specifically referenced. These current provisions can be carried forward, if desired by the Planning Department, as public outreach services. They are not mandated by 2204: --Additional notice to affected property owners within historic district designation upon adoption --Notice to adjacent property owners upon issuance of a permit for keeping of chickens

2209 Civil penalties for violations of zoning ordinance

Partial §40.1-7.6

Although the current code notes that the City has adopted a uniform schedule of civil penalties for zoning violations, the schedule is not located in the Zoning Ordinance except for violations associated with Certificates of Appropriateness. The City has the option of incorporating a uniform schedule of civil penalties in the new zoning ordinance. If civil penalties are desired, the City and Berkley team should coordinate its development with Permits and Inspections. The Berkley team will facilitate a thorough review of all zoning enforcement regulations by the City Attorney's Office. This review will include violations of design standards associated with districts which require oversight from the Historic Preservation Commission and Downtown Design Committee.

2209.1

Extension of approvals to address housing crisis

No No reference

The sections of the new zoning ordinance which go over each of these type of applications (final site plans, special exceptions, and rezonings) should include regulations pertaining to their periods of validity prescribed by the state code. These validity sections can include a reference to 2209.1, but not state the specific dates of validity, for flexibility in the event that further extensions are made by the General Assembly.


VA Code


Existing ZO Section


2246 Site plans submitted in accordance with zoning ordinance

No No reference

The existing site plan regulations, pertaining to the Type I and Type II Development Plan processes, are not enabled by the state code. These processes will not be carried forward to the new ordinance. Per direction from City staff, the City's new zoning ordinance will align with current policies and procedures used by the Department of Engineering and Technical Services (DETS) for coordinating site plan review. The regulations can name the City Engineer as the sole authority for approving site plans. The site plan section will acknowledge the applicable provisions specified in §15.2-2242 through 2245, many of which are listed in Summary of General Site Plan Requirements currently used by DETS in site plan review. The section will provide review standards for major site plans, minor site plans, and plot plans.

2258

Plat of proposed subdivision and site plans to be submitted for approval

No No reference

None of the items listed in 2258 (drainage district, dam break zone, graves/burial, joint locality control) are in the existing ordinance. These elements required for display on a site plan shall be incorporated into the new site plan program as specified in the comments above for 2246.

2259

Local planning commission or other agent to act on proposed plat

Yes

§40.1-2.3(C)(5)(a)(ii)

§40.1-2.3(D)(4)(a)(ii)

This sets forth the required time frames for site plan review to be referenced in the new site plan regulations discussed in 2246 above. Per feedback from City staff, site plans are reviewed and approved by staff and the new ordinance should reflect these existing duties.

2261

Recorded plats or final site plans to be valid for not less than five years

Yes §40.1-

2.3(C)(8)(a)§40.1-2.3(D)(8)(a)

The new site plan regulations can indicate this period of validity, as well as the ability to request an extension of this period and minor modifications to an approved site plan.

2261.1

Recorded plat or final site plans; conflicting zoning conditions

No No Reference Recommended best practice is for all site plans to be approved by staff through the City Engineer’s authority, which allows City Council to avoid conflicts with its own approvals on rezonings.


VA Code


Existing ZO Section


2270

Vacation of interests granted to a locality as a condition of site plan approval

No No reference

There is no provision for vacation of interests in the current ordinance. Recommended best practice is to include a state code reference in the new ordinance for this vacation process authorizing the City Engineer to consent to such vacations on City Council's behalf. Council still retains its authority to vacate ROW as a condition of site plan approval. Should the City desire this state code reference in the new ordinance, the proposed language can be coordinated with the City Engineer, City Attorney, and Sharon Pandak.

2280 Zoning general description

Yes §40.1-1.2 Important to keep this citation establishing the City's legal authority to enact a zoning ordinance.

2281 Zoning jurisdiction of county and incorporation

Yes §40.1-1.4

Current ordinance exempts streets and public rights of way from the ordinance. Exceptions to the exemption of zoning oversight in rights of way can be discussed with the City Attorney's Office and DETS. Such exceptions could be used for historic districts, sidewalk signs in downtown, state/federal lands, and telecommunications facilities.

2282 Uniformity of regulations

Yes No Reference Each district's regulations in the current ordinance are uniform for each kind of buildings and uses throughout each district. The new ordinance can include similar uniformity to comply with 2270.

2283 Purpose of zoning, mandatory provisions:

Partial §40.1-1.3 A list of purpose and intent statements is given, but does not match the current state code.

i. Light, air, convenience of access, fire, flood, impounding structure failure, crime

Partial §40.1-1.3(A)(1) The existing code mentions all of the items to be considered for providing safety against except for impounding structure failure

ii. Reduction of street congestion

Yes §40.1-1.3(A)(2)

iii. Convenient, attractive, harmonious community

Yes §40.1-1.3(A)(3)


VA Code


Existing ZO Section


iv. Adequate police and fire protection, evacuation, defense, transportation, water, sewage, flood protection, schools, parks, forests, playgrounds, recreation facilities, airports

Partial §40.1-1.3(A)(4)

There are no airports located within the City, which may have been the reason why facilitating the provision of airports was omitted in current ordinance. Airports can be considered if deemed applicable by City staff as part of the zoning ordinance rewrite.

v. Protection of historic areas and working waterfront development areas

Partial §40.1-1.3(A)(5) New for 2017 - No mention of working waterfronts; can be examined for inclusion into new ordinance in tandem with 2306.1.

vi. Protect against: overcrowding, undue density, light and air obstruction, danger in transportation, public safety

Partial §40.1-1.3(A)(6) The existing code mentions all of the items to be considered for protection against except impounding structure failure.

vii. Economic development, employment, tax base

Yes §40.1-1.3(A)(7)

viii. Ag/Forestal and natural environment protection

N/A §40.1-1.3(A)(8) Ordinance replaces ag/forestal land with "natural environment"


VA Code


Existing ZO Section


ix. Protect airports, U.S. government and military facilities

No No reference Include this provision given Portsmouth's proximity to regional military facilities.

x. Create and preserve affordable housing

Partial §40.1-1.3(A)(9) No mention of providing share of regional need for housing affordability.

xi. Provide against encroachment on military bases

No No reference Include this provision given Portsmouth's proximity to regional military facilities.

2283.1

Sexual offender rehab center residential prohibition

Yes No reference Nothing in zoning ordinance references this use, therefore it is not permitted. The Berkley Group team will verify whether the state code requires counseling and/or therapy to be allowed in residential zoning districts as a home occupation.

2284 Drawing up zoning ordinance matters - process

Partial No reference The intent of this section is met by the ordinance, however, some reference text in the introduction/purpose may be appropriate, including a reference to this code section.

2285 Ordinance and map development, adoption - process

Yes §40.1-2.3

This code section should be referenced and acknowledged in the new zoning ordinance, but does not need to be repeated verbatim. Elements of a zoning map, public notice requirement for amendments, and the Planning Commission's required role in ZTA's should be referenced in the new ordinance. Unmandated procedures in the current ordinance, such as requiring written recommendations and specifying how the Commission should make its recommendation, need not be carried forward to the new ordinance.

2286 A. Permitted provisions in zoning ordinances.

1. Variances and special exceptions

Partial §40.1-2.3(G) §40.1-2.3(B)

The terms use permit, special use, and special exception are not used consistently within the ordinance. Each instance of "variance permit" should be replaced with "variance". Per city staff, the new ordinance should include a special exception process for the Board of Zoning Appeals to review modification requests to standards pertaining to signs, parking, certain design standards, and nonconformities.


VA Code


Existing ZO Section


2. Annexation or boundary adjustment provision

N/A No reference Moratorium on city annexation remains in effect at state level.

3. Governing body special exception permits - Affordable housing special exception provisions

Yes §40.1-2.3(B)

Portsmouth's use permit regulations satisfy this requirement. The Berkley Group team can work with City staff to develop a special exception process for the review/approval of certain applications to the BZA. Affordable housing is established as a general objective (§40.1-1.3(A)(9)), but not specifically related to special exception process in current ordinance.

4. Zoning administrator authorities, provisions, processes

Partial §40.1-2.1(G)(2)

The current ordinance elevates the Planning Director, with support from the Zoning Administrator, as the primary staff person charged with enforcing and administering the zoning ordinance. The new ordinance will consolidate these duties under the authority of the Zoning Administrator per 2286(4). Organizational responsibilities for permitting, interpretations, application processing, and other duties should not be carried forward to the new ordinance. Details on the performance of these duties are more appropriately administered through a City department’s standard operating procedure.While this section enables minor modifications to be approved by the Zoning Administrator, City staff has provided feedback noting that these duties are not necessary for inclusion in the new ordinance.

5. Imposition of penalties - misdemeanor fines

Yes §40.1-7.6 (A)(5-6)

§40.1-7.6(A)(3) notes that the City has adopted a uniform schedule of penalties which shall include the maximum penalties allowed by state code. The Berkley team can work with City staff to determine whether civil penalties should be incorporated into the new ordinance.

6. Collection of fees Partial §40.1-2.2(C)

§40.1-2.2(C) of the zoning ordinance authorizes City Council to establish application fees which are included in the City's administrative manual. Ordinance should instead reference City's adopted fee schedule in Appendix A of the City Code. 2286(6) does not require fees to be kept in a manual, and this mention of the manual should be removed. The code section should be broadened in accordance with the state code to account for inspections, permits, appeals, and other administrative tasks.


VA Code


Existing ZO Section


7. Zoning ordinance amendment timelines and process

No §40.1-2.3(A)(3)

The current ordinance allows the Historic Portsmouth Commission (HPC) and the Planning Director to initiate zoning text amendments; the new ordinance should only mention those persons/entities specifically authorized to initiate a zoning text amendment. The new ordinance should reflect Council's ability to amend the ordinance "[w]henever the public necessity, convenience, general welfare, or good zoning practice requires". New ordinance should include Council’s authority to amend the ordinance, the initiation standards, and the requirement to act within 12 months. Recommend relocating all procedural requirements to a separate standard operating procedure.

8. Plan of development submission and approval

No §40.1-2.3 (C-D)

Paragraph 8 enables site plan and other similar layout reviews and approvals. The tools used for reviewing such plans in the current ordinance are the Type I and Type II Development Plan processes. Each of these processes can be replaced with a site plan ordinance in conformance with state code giving final decision authority to the Director of Engineering and Technical Services.

9. Mixed use or PUD developments

Yes Various

City code includes provisions for several different mixed-use zoning districts (Neighborhood Mixed Use, General Mixed Use, and High-Intensity Mixed Use). The three Activity Center districts meet the state code definition for planned unit developments. The Berkley Group team can work with staff to examine the use of overlay districts to ensure compliance with the SB549 adopted in 2016 by the General Assembly. Per staff recommendation, the existing mixed use districts and the activity districts based on the current Comprehensive Plan will be eliminated.

10. Incentive zoning administration

Yes

§40.1-5.1(K) §40.1-5.2(D)(4)

§40.1-5.3(C) §40.1-5.8

Ordinance provides green building incentives to encourage sustainable development practices within the City. Incentives include density bonuses, increased maximum building height, increased maximum building coverage, etc. Other incentives are included that enable parking requirement reductions, tree preservation, and vehicular use area landscaping. Per staff recommendation, the Berkley Group team will revisit incentive zoning as a tool to implement the proposed Comprehensive Plan's recommendations for resiliency and alternative energy options. Such options must balance development demand and trends with City needs.

11. Downzoning tax credit

N/A No reference Downzoning tax credit not implemented in existing ordinance.


VA Code


Existing ZO Section


12. Environmental site assessments and review

N/A No reference Assessments not implemented in existing ordinance. Environmental assessments to be considered for new ordinance as a tool for development review of applications converting industrial land to residential use.

13. Environmental disclosure and remediation

N/A No reference Disclosure/remediation not implemented in existing ordinance.

14. Single-family residential occupancy regulations

Yes §40.1-8.3

Current regulations define a family as those related by blood, marriage, or adoption living as one housing unit or up to 5 unrelated persons living together as a single housing unit. The Berkley Group team will ensure that the definition for family and other standard terms align with the Code of Virginia.

15. Zoning inspection warrants

Yes §40.1-7.5(D)(3) New ordinance can acknowledge the Zoning Administrator's ability to obtain a search warrant as enabled by 2286(15); summary of state code with code reference would be satisfactory to comply with state code.

B. Payment of outstanding debt, taxes, fees

Yes §40.1-2.3(A)(6)(l)

and 40.1-2.3(G)(4)(a)(x)

Ordinance includes a requirement that any delinquent real estate taxes are paid to the City prior to granting a zoning map amendment or granting a variance. The City should consider extending this delinquent tax provision to all other application types listed in 2286(B). The Berkley Group team will develop this language for City staff's review and feedback.

2286.1 Open space provision, cluster dwellings

N/A No reference This section only applies to localities with growth rates of 10% or more from the next-to-latest decennial census year.

2288

Localities may not require special exception permits for certain agriculture activities

N/A No reference The section of the State Code states that localities are not permitted to require special exception permits for certain agricultural activities within an agricultural zoning district. The City does not have any agricultural zoning districts.

2288.01

Localities may not require special exception permits for small biomass conversion

N/A No reference The only mention of biomass in the ordinance is in relation to the Green Building Bonuses section of the ordinance.


VA Code


Existing ZO Section


2288.1

Localities may not require special exception permits for permitted residential use

Yes Table 40.1-4.1(A) Use permits are not required for permitted residential uses.

2288.2

Localities may not require special exception permits for certain temporary structures (tents)

Yes §40.1-4.5(D-E)

§ 40.1-4.5(D) of the code notes that a temporary use permit is required for all temporary uses and structures. §40.1-4.5(E)(1) notes that any permits required by the City must be obtained. Clarify these sections of the code to show compliance with State Code.

2288.3 Localities may not unduly regulate wineries

N/A N/A

This section is only applicable to farm wineries, and is intended to limit local government regulations on farm wineries as a booster to Virginia's agricultural industries. Since Portsmouth's zoning ordinance does not permit agriculture or farm wineries, this section does not need to be acknowledged in the new zoning ordinance.

2288.3:1

Limited brewery license; local regulation of certain activities.

Yes §40.1-8.3 Definition is in line with state code.

2288.5 Definition and uses of cemetery

Partial Various Recommend updating definition to better align with state code and include reference to this state code section.

2288.6

Agricultural operations; local regulation of certain activities.

N/A No reference

The existing ordinance does not restrict the agricultural activities specified in this code section. Since neither farms nor ranches are permitted uses within Portsmouth, the state's requirements for agritourism are not applicable to Portsmouth. As previously noted, the Berkley Group team will provide zoning standards for City staff's review to allow urban-scale agriculture in appropriate zoning districts.


VA Code


Existing ZO Section


2287

Optional requirement regarding property interest of local officials

Yes §40.1-2.2(B) This optional provision for disclosure of interest of Planning Commission and City Council members in property subject to a development application should be carried forward to the new zoning ordinance.

2289

Optional requirement of disclosure of real parties in interest for special exception permits

N/A No reference The City does not require a disclosure of interest or equity for use permits, rezonings or variances. Consider adding this provision with new zoning ordinance.

2290

Manufactured housing uniformity (by-right in Ag areas)

N/A No reference The state code section only applies to agricultural zoning districts.

2291 Assisted living (group homes) of 8 or fewer residents

No §40.1-4.3(A)(2)(c)

§40.1-8.3

Definition of "group home" needs to be updated to align with state code to include aged/infirm/disabled and to remove language which does not comply with 2291. Additionally, §40.3-4.3(A)(2)(c) requires that any group home shall be located at least 2,600 feet from another group home; however, the state code states that "No conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such facility." Use permits may not be required in zoning districts where residential uses are permitted by-right. Currently, group homes are permitted by right but are called family care homes. This label will be changed to coincide with definition and names used in the state code.


VA Code


Existing ZO Section


2292 Zoning provision/definition of family day home

No §40.1-4.3(B)(1(b)

§40.1-8.3

Flexibility on home child care regulations are best practice for supporting the local labor force and economic development. Recommend combining the two home day care definitions into a single “family day home” definition. Definition should comply with 2292, with performance standards located in a separate section of the new ordinance. Family day homes with 1-4 children must be treated as single family residences. Carry forward standards which minimize traffic and parking impacts; standards with requiring extensive enforcement resources should be considered for removal. The Zoning Administrator is not bound by state code to deny permit requests for additional children if opposition is submitted in writing, so the new ordinance should reflect 2292’s flexibility.

2292.1 Provision for temporary family health care structure

Partial §40.1-4.5(F)(5) Time period for removal of the facility once the impaired person is no longer receiving care does not comply with state code. Include state code reference.

2293 Airspace subject to zoning ordinance

No No reference The ordinance does not reference airspace.

2293.1 Amateur radio antenna placement

Yes §40.1-4.4(C)(2) This section addresses the required state code provision.

2293.2 Regulation of helicopter use

Yes §40.1-4.3(C)(7)(a)

The section of the City code includes requirements to comply with FAA standards and provide buffers for NR or GR district, or existing single-family residential development. Since helicopter use is not a current issue for the City's land use and zoning, the existing language can be clarified by replacing the "adequate" buffer phrasing with a minimum buffer width.

2294 Airport safety restrictions

N/A No reference

No licensed airport, including government or military air facilities, are located in Portsmouth. Unless approach slopes or other safety zones of either of the nearby Norfolk International Airport falls within City's political boundaries, this section does not need to be referenced.

2295 Optional aircraft noise attenuation ordinances

N/A No reference

The City does not have any aircraft noise attenuation provisions. Such an ordinance can be considered if there are areas within Portsmouth affected by above average noise levels from aircraft due to their proximity to flight operations at airports in neighboring jurisdictions.


VA Code


Existing ZO Section


2295.1 Optional mountain ridge construction ordinances

N/A No reference The City does not have protected mountain ridges that meet this state code definition; thus, this section of the code is not applicable to the City.

2295.2

Optional authority to create zoning modification in dam break inundation zones

N/A No reference The City does not reference dam break inundation zones in its ordinance.

2296 Conditional zoning - legislative policy

Yes §40.1-2.3(A)

§40.1-2.2(M)(2)

Recommend reference to applicable state code sections pertaining to proffer authority with a general summary which matches the Planning Department's administration and review of proffers. Per staff recommendation, the new ordinance should give Portsmouth all eligible proffer authorities enabled by state code, allowing maximum flexibility to mitigate future impacts. When permissible, this may include cash proffers.

2297 Conditional zoning - rezoning/map amendments

Partial

§40.1-2.3(A)(5)(a)(ii);

§40.1-2.3(A)(7)§40.1-

2.3(A)(9)

Requirements for what shall be included in a voluntary proffer statement, shown in §40.1-2.2(M)(2) should not be carried forward to the new ordinance, as these regulations dictate certain requirements for what must be included within a proffer statement.State code does not authorize proffer changes after the public hearing is called when the proffer changes are the result of PC/citizen/staff action or comment. 2297 does allow changes after the public hearing is called, but only if the amended proffers "do not materially affect the overall proposal". Proffer changes during public hearings should be discouraged through policy and practice instead of by ordinance as seen in §40.1-2.3(A)(5)(a)(ii). Proffer changes can, and often do, occur prior to the public hearing, and do not need to be prohibited after public notice as seen in current ordinance. State code does not give authority for City Council to discern whether proffers are or are not "generally applicable to lands with similar zoning district classifications". These provisions should not be carried forward to the new ordinance.


VA Code


Existing ZO Section


2298 Conditional zoning - high-growth amendments

Partial §40.1-

2.3(A)(7)(b)(iv)

The City of Portsmouth did not have growth rates from 2000 to 2010 that meet the state's definition for a high-growth locality but the adjoining cities of Chesapeake and Suffolk did. Should City Council wish to use cash proffers as a tool to mitigate impacts on rezoning applications in the new ordinance, the City is eligible for this authority.

2299 Conditional zoning - enforcement

Partial §40.1-2.3(A)(7)(c)

Current code's regulations comply with 2299, except for granting enforcement duties on proffers to the Planning Director; state code authorizes only the Zoning Administrator to perform these duties. The new ordinance can summarize the proffer enforcement duties of the Zoning Administrator authorized by 2299, and include a state code reference.

2300 Conditional zoning - records

Partial §40.1-2.3(A)(9)(b)

Accepted proffers are to be indexed and recorded in the office of the Zoning Administrator. Recommend including language to update the Index annually and no later than November 30 of each year. Properties with proffers must be identified on the official zoning map.

2301 Conditional zoning - petitions for review of decision

No No reference Petition for review of the Zoning Administrator's proffer enforcement decisions should be acknowledged in the new ordinance as a summary of 2301 that is consistent with 2299. Include state code reference.

2302 Conditional zoning - amendments and variations

No No Reference

Current ordinance does not contemplate an amendment process for proffered rezonings. A proffer amendment process should be included in the new ordinance, in compliance with 2302. The City may consider adding waiver provisions for the public hearing in a proffer amendment agenda item if desired by City Council to simplify the application process. The new ordinance's compliance with this section will be coordinated with the City Attorney.

2303 Conditional zoning - certain localities

N/A This section does not apply to Portsmouth.

2303.1

Binding development agreements - certain localities

N/A This section only applies to the County of New Kent.

2303.1:1 Cash proffer option - process

No §40.1-

2.3(A)(7)(b)(iv)

The City may collect cash proffers pursuant to § 15.2-2298. If the City includes cash proffer authority in the new ordinance, cash proffers on a per-dwelling unit basis must conform to 2303.1:1.


VA Code


Existing ZO Section


2303.2

Proffer cash payments and expenditures - process

N/A The City may collect cash proffers pursuant to § 15.2-2298. If the City includes cash proffer authority in the new ordinance, the expenditure, tracking, and monitoring of cash proffers must conform to 2303.1:1.

2303.3

Cash proffer requested or accepted conditions - process

N/A

The City may collect cash proffers pursuant to § 15.2-2298. If the City includes cash proffer authority in the new ordinance, the parameters for collecting cash proffers, calculating annual increases for inflation, and accepting proffers with waivers of future legal rights must conform to 2303.03.

2303.4 Provisions applicable to certain proffers

No No reference This is the 2016 proffer bill associated with unreasonable proffers for residential projects. The restrictions on Council's ability to accept certain types of proffers should be acknowledged through reference in the ordinance to this code section.

2304 Affordable dwelling ordinances - certain localities

N/A Only applicable to Counties of Albemarle and Loudoun, and the Cities of Alexandria and Fairfax.

2305 Affordable dwelling ordinances

N/A No reference

This is an optional provision in the Code that the City is eligible to consider including in the new ordinance. The tracking and management of the program can be accomplished by the Planning Department, PRHA, or another appropriate city government agency.


VA Code


Existing ZO Section


2306 Optional historical site preservation

Partial §40.1-2.3(A)(5)(b);

§40.1-9

The City has established a Historic Preservation Commission (HPC) to preserve and protect historic places and areas within Portsmouth. Include reference to 2306 in purpose/intent statement for section in new ordinance, separate from rezonings and zoning text amendments, solely devoted to historic districts. Review and reevaluate submission requirements for establishing or adding to a historic district. The criteria found within "Designation of an Historic District" should be replaced with a reference to 2306, Paragraph A(1) for broader ability to use historic districts as authorized by the state code. The designation process, and the Adoption Ordinance Requirements, are not required by 2306, and these types of procedures should be evaluated for relocation to a Planning Department Standard Operating Procedure for historic preservation. The Planning Director's requirement to file the resolution in Circuit Court should not be a zoning requirement, and neither should the 30-day courtesy letter to individual property owners. Per staff recommendation, the Historic Residential district can be converted into a residential district, and Historic Limited Office and Historic Limited Business can be converted to commercial districts. When the new ordinance references residential, commercial, or office districts, the historic districts of the corresponding category must also be included in those groupings.

2306.1 Establishment of working waterfront development areas

N/A No reference

New for 2017: the City can now designate areas or structures adjacent to navigable water as working waterfront development areas. These areas can include boat and ship building, repair, and services, marine construction, and military activities. The City has areas that would qualify for categorization as working waterfront development areas, and should explore using this tool for economic development to support port-related businesses. This tool can be reviewed by the City Manager, Finance Department, and Economic Development to assess costs and benefits to the City, along with coordination for CBPA and stormwater management compliance.


VA Code


Existing ZO Section


2307 Protection of vested rights for non-conforming uses

Partial §40.1-6.2

Include statement on protection of vested rights in conformance with 2307. Provisions for determination are not required to be in a local zoning ordinance, but process for making a vested rights determination can be incorporated into a Planning Department SOP manual. The new ordinance must specify that vested rights do not exempt a property from National Flood Insurance Program standards and requirements. The new ordinance must permit owners of buildings damaged or destroyed by act of God to repair, rebuild, or replace the building to eliminate/reduce the nonconformities to the extent possible; if the building is damaged greater than 50%, the owner must be allowed to reestablish the building's nonconformity if it can't be repaired, rebuilt, or replaced otherwise. Current ordinance does not permit this type of restoration.Streamline purpose/intent to remove value-added statements (ex. "Nonconforming uses are declared generally incompatible with the permitted uses in the zoning district....")The incorporation of Paragraph G into the new ordinance should be coordinated with the City Attorney to ascertain the City's ability to compel the removal of abandoned nonconforming signs which are for businesses which have not been in operation for a period of at least two years (potential conflict with Reed v. Gilbert).

2307.1 Commercial fishing Yes No Reference

2307.1 requires Portsmouth to allow registered commercial fishermen and seafood buyers, who operate their businesses from their waterfront residences, to use their residential property for their business. The state code only allows this type of commercial use for a waterfront residential property if the business has been in operation by the current owner or family member for at least 20 years at the location in question. City staff have noted that this type of land use is not found in Portsmouth, and that these regulations are not needed.


VA Code


Existing ZO Section


2308 Zoning appeal board

Partial §40.1-2.1(D)

2308 requires City Council to appoint Portsmouth's BZA members and 1-3 alternates. The current ordinance includes numerous regulations pertaining to the BZA, including but not limited to membership eligibility, terms, vacancy procedures, prohibition on holding other office, alternates, officers, quorum, record keeping, and compensation. Since 2308 does not require these procedures to be included in a Zoning Ordinance, the new ordinance can acknowledge the BZA's composition and authority in references to this state code section. The procedures and business matters for the BZA should be incorporated into a by-laws document to be reviewed and endorsed by the BZA.

2308.1

Boards of zoning appeals, ex parte communications, proceedings.

N/A No Reference The current ordinance does not reference ex parte communications. These parameters for ex parte communication should be incorporated into the BZA's by-laws in detail, and summarized in the Zoning Ordinance with a state code reference.


VA Code


Existing ZO Section


2309 Zoning appeal board powers and duties

No §40.1-

2.1(D)(5)§40.1-2.3(K)

Powers and duties currently authorize appeals of the Planning Director or Zoning Administrator when deciding matters under the Zoning Ordinance. All zoning administration and zoning enforcement duties can be granted to the Zoning Administrator with the new ordinance. BZA only has powers and duties explictly authorized by the Code of Virginia. Such powers may include special exception review for uses/standards specified in the Zoning Ordinance. Appeals must be based on whether the officer was correct; while the BZA may consider all applicable laws to arrive at their decision, the decision itself may not be based on the merits of the purpose/intent of the ordinance. The current appeal standard can be modified to reflect state code. The powers and duties, other than the special exception authority, need not necessarily be incorporated into the Zoning Ordinance to comply with 2309. However, the Zoning Ordinance should acknowledge the BZA's role in approving variances and deciding appeals requests as authorized subject to the standards specified in 2309. The existing variance standards do not comply with 2015 changes to the state code. The prohibitions on expanding accessory structures and modifying parking do not meet the definition of a variance. Variance criteria can be incorporated into staff reports and on the City's website, as well as an appendix to the BZA by-laws. The Berkley Group team will provide special exception authority to the BZA in the new ordinance. This authority will permit property owners to request special exceptions to correct non-compliant nonconformities.


VA Code


Existing ZO Section


2310 Application for special exceptions and variance

Partial §40.1-2.2(Q)(1)

§40.1-2.3(G)

Current ordinance's Common Review Procedures do not authorize a tenant or government official/dept./board/bureau to submit a Variance or Special Exception, as permitted by 2310. A copy of the application materials must be transmitted to the Planning Commission per 2310. The BZA may, if enabled by ordinance, delay consideration of a Variance or Special Exception that is substantially similar to a previously reviewed Variance or Special Exception by one year. The current ordinance's time limit does not comply with this statute. If desired for carryover to the new ordinance, the waiver process should be reviewed by the City Attorney's office as 2310 does not specifically enable these provisions. Like the City's implementation of 2309, most of 2310 does not require inclusion in the Zoning Ordinance. Recommendation is for reference to state code with specific procedures in BZA by-laws.


VA Code


Existing ZO Section


2311 Optional appeals to Board - process

Partial §40.1-2.3(K)

The current zoning ordinance requires any permit or license issued by any City department/official/employee to conform to the zoning ordinance, and if the permit is discovered to conflict with the zoning ordinance, the permit shall be null and void. This language is acceptable, but must acknowledge the 60-day window for change/modification/reversal in 2311(C). Appeal procedures can be acknowledged in the Zoning Ordinance as a duty of the Zoning Administrator to process in compliance with 2311. As with 2309 and 2310, state law does not require appeal procedures to be incorporated into the zoning ordinance. BZA by-laws, with identical information on the City's website, can include provisions for establishing standing for filing an appeal to the BZA, what types of processes can be appealed (ORDD), specifications of right-to-appeal statement for ORDDs, appeal period in compliance with new 2017 General Assembly adopted legislation for notification, binding decision by BZA, stay of civil penalties and code enforcement proceedings, and 60-day window for change/modification/reversal except for clerical error. 2311 does not authorize appeals of decisions of the Planning Director. References to zoning administration decisions being made by the Planning Director should be removed with the new ordinance. Contents of appeal, as listed in (K)(3)(a), are not enabled by 2311 and should not be included in the ordinance. Meeting procedure requirements are not enabled; these can be relocated to the BZA by-laws.

2312 Appeals to Board procedure - process

Partial §40.1-2.3(K) The review period outlined here does not mirror state code. Additionally, the City should add 2312's record keeping requirements to this section of the ordinance.

2313

Prevention of construction not in accordance with ordinance - process

No No reference New ordinance should include language that mirrors this section of the state code.

2314 Writ of Certiorari to review Board's decision

Partial §40.1-2.3(H)(9) Include reference to §15.2-2314 and revise to more clearly align with processes outlined in this section of the state code.


VA Code


Existing ZO Section


2315 Conflict of state and local ordinance

Yes §40.1-1.6(C) This section conforms with state code.

2316 Validation of ordinances prior to 1971

N/A No reference The City 's ordinance was adopted after 1971.

2316.1

Definitions regarding transfer of development rights (TDRs)

N/A No reference The City does not have a TDR program.

2316.2 Optional provisions for transfer of development rights

N/A No reference The City does not have a TDR program.

2316.3 Definitions regarding small cell facilities

No No reference New for 2017: the applicable telecommunications definitions will need to be updated to comply with this legislation adopted by the General Assembly this year. Any further changes during the 2018 session will also be incorporated.

2316.4 Permitting and review of small cell facilities

No No reference New for 2017: the telecommunications regulations will need to be updated to comply with this legislation adopted by the General Assembly this year. Any further changes during the 2018 session will also be incorporated.

2317

Applicable to 20k persons+5% growth, or 15% growth

N/A The City does not meet the population growth requirements for Article 8 (Road Impact Fees)to apply.

2319 Impact fee authority N/A "

2320 Impact fee service area establishment

N/A "

2321

Adoption of road improvement program (must be done prior to impact fee adoption)

N/A "


VA Code


Existing ZO Section


2322 Adoption of impact fee, schedule

N/A "

2323 Applicability of fees

N/A "

2324 Credit against fees N/A "

2325 Updating plan of impact fee

N/A "

2326 Proceeds use N/A "

2327 Refund of impact fee

N/A "

2328 Applicability of article

N/A The City does not have an established urban transportation service district.

2329 Imposition of impact fees

N/A "

Source: Code of Virginia; http://law.lis.virginia.gov/vacode/title15.2/chapter22/


# Additional Comments Consultant Recommendations

1 Ordinance outline and structure. Structure the new zoning ordinance's organization in a manner which does not require citing numerous sections, paragraphs, and subparagraphs to reference a regulation. No footnotes will be used for regulatory purposes.

2 Appurtenances and encroachments.

The new ordinance needs a consolidated section to govern what types of building encroachments can extend into a required yard and by how much. The Berkley Group team will provide language that minimizes encroachments while excluding downtown properties and historic districts that have encroachments due to historic development patterns (ex. allowing steps on sidewalks). Setbacks will be modified to prevent new encroachments to the greatest extent possible.

3

Refine the lists of permitted uses in each zoning district. Ensure each permitted use has a corresponding definition. Eliminate Use Classifications/Categories/Types section.

All principal uses should be clearly, succinctly defined. All uses listed in each zoning district should have a specific, corresponding definition in the definitions section. The Code of Virginia and the VUSBC can be source material for definitions when feasible and pragmatic. Each use will be reviewed for consideration as a by-right, Use Permit, or prohibited use for each district. Content from §40.1-4.2 which assists staff in determining uses should be centralized and relocated to the corresponding definitions for easier research by staff. City staff have indicated to the Berkley Group team that the proposed use table will required City Council feedback at a work session prior to final draft. This will include which uses should be permitted with a Use Permit.

4 Review pre-2010 zoning district standards to ensure established neighborhood character is not disrupted by new ordinance.

The current ordinance permits a greater variety of housing types and mixed uses in established low density neighborhoods than previously permitted. In some neighborhoods, multifamily residential is a permitted use among neighborhoods established with single family dwellings. These neighborhoods will be studied to ensure that the new zoning ordinance permits housing types and lot/height/bulk requirements in accordance with the established character. The Berkley Group team will review the pre-2010 zoning ordinance with City staff as source material for establishing these regulations. City staff has expressed its goal of having zoning regulations which permit expansions to single family dwellings to account for present-day housing preferences that improve the marketability of the City's housing stock. Existing standards for contextual setbacks will be reviewed for carry over to the new ordinance. This revision will be a major, but necessary, effort to fix the many problems created by compressing the pre-2010 districts into the current residential districts with smaller lot sizes and lot widths. City staff are currently working on an analysis for this lot size issue that will be reflected in the new ordinance. Per recommendation by City staff, pre-2010 standards for shipping containers, adult uses, and recycling facilities shall also be reviewed for inclusion in the new ordinance.



5 Analyze short-term rental businesses (STRBs). Acknowledge short-term rentals in ordinance.

§15.2-983 permits the City to maintain a registry and collect fees for tracking short-term rentals using AirBnB and similar home-sharing services. Short-term rental business (STRBs) can to be defined, listed as an allowable use in appropriate districts, and have performance standards to minimize impacts on residential neighborhoods. Best practices from other Hampton Roads localities can be considered. Per requested by City staff, the 2018 General Assembly session will be monitored for further state action on this industry. At staff's request, the Berkley Group team will develop language for the permitting and regulation of STRBs that can be included in the new ordinance should Portsmouth desire this regulatory authority.

6

Apply a uniform formatting for each zoning district classification. Clear regulations to be located in predictable locations.

For clarity purposes, each district should have a purpose & intent, list of by-right uses, list of conditional uses, bulk standards (height, setback, etc.), lot standards (area, width, frontage), and reference use standards if applicable. Subgroups like the Use Categories which add complication to the ordinance should be eliminated. The Berkley Group team can work with staff to develop tables for clear display of use and bulk standards for all districts. Landscaping requirements do not need to be overhauled, but they will be changed and modified per staff recommendation.

7 Eliminate Table 40.1-2.1(A) - Summary Table of Development Review Structure.

Development process information like this is better located on the department's website, where it is more accessible, than embedded in a regulatory document

8 Remove regulatory references to the Comprehensive Plan.

The new zoning ordinance will be a consolidated document, in tandem with the official zoning map, to regulate land use within Portsmouth. The Comprehensive Plan will be referenced when it is to be consulted for decision-making purposes, but will not be used as an extension of the zoning ordinance. Regulations which require conformance to recommendations embedded within the Comprehensive Plan will not be used.

9

Review definitions for inclusiveness with new types of uses. Review definitions for parks and open space. Acknowledge the port and associated uses.

Makerspaces, "Escape Rooms", and similar arrangements are new types of land uses that zoning officials throughout the state are addressing through interpretation or code changes. The Berkley Group team can formulate definitions and performance standards for all desired uses. This includes the desired types of parks and open space. Recommended best practice is if a development is required to have a certain percentage of open space, then that open space must be established on the development site itself. Unless endorsed by staff, open space standards allowing off-site open space to count for on-site requirements will not be carried forward to the new ordinance. The new zoning ordinance will include definitions for port, port use, and port facility. The Berkley team can coordinate the development of performance standards for this use with staff.



10 Telecommunications Facilities, including Small Cell Facilities.

Ensure compliance of telecommunications standards with recent state code changes pertaining to small cell facilities and the 2012 Spectrum Act at the federal level; ensure coordination with Planning Commission review authority on public facilities granted by §15.2-2232. The Berkley Group team will collaborate with City staff to determine how small cell facilities to be located within the right-of-way will be handled in the new ordinance.

11 Purpose and intent statements. Ensure purpose and intent for the Zoning Ordinance conforms to all state code requirements; provide a preamble at the beginning of each district's regulations that states the purpose/intent of that district.

12 Ensure appropriate authority for decision making is placed with the appropriate decision maker.

City Council shall be the decision maker for any zoning matters requiring a legislative approval (rezonings, use permits, zoning text amendments) Planning Commission shall serve in the advisory capacity afforded it by the state code for legislative zoning matters and for the Comp Plan stewardship Zoning Administrator shall be afforded all powers authorized by the state code that are necessary; optional powers can be included at the direction of City Council Staff designees of the Zoning Administrator shall have review authority for ministerial (administrative) decisions, to include sign permits, site plan review, use verifications

13 Public notice pursuant to §15.2-2204; posting of property.

The staff team has highlighted the benefits to supplementing written notice on public hearings with a sign posting at the subject property. While such postings are not required by the Code of Virginia, they enhance the public's awareness of planning and zoning applications. The Berkley Group team will ensure that the Planning Office's public notice standards in the new ordinance conform to state statute. Public notice procedures can be located in a SOP.

14 New sign ordinance and parking regulations will be integrated into the new zoning ordinance and reviewed for improvements.

The Berkley Group team will review recently adopted amendments related to signs and parking for further adjustments based on feedback from staff. The team will perform any corrections and updates requested to include any missing elements from the D1 and D2 districts, sign lighting, monument signs, and wall mounted/lighted signs in the D1 district.

15 Review and Revise the Landscape section in the new ordinance.

The Berkley Group team can review best practices for interior parking lot and peripheral parking lot landscaping regulations. These recommendations will be evaluated collaboratively with staff in crafting city-wide landscape standards. Specific zoning districts will not have alternate standards. Any tree protection standards written into the new ordinance will conform to Code of Virginia requirements.



16 Review and Revise the Lighting section in the new ordinance.

Lighting regulations can enable increased security and safety with minimal impacts, while permitting illumination that allows proper identification for commercial uses (signs) and enhances residential feeling of safety (Crime Prevention Through Environmental Design). Lighting standards will be drafted to account for downtown Portsmouth's role as an urban, cultural/entertainment center of activity. LED lighting will be considered, and the current exemption for single family residential from all lighting standards can be retained.

17 Examine feasibility and appropriateness of permitting home occupations as an economic development strategy.

Consider permitting 1-2 nonresident employees as an economic development measure. For example, certain size family day homes may need assistants (employees) to meet state licensing requirements if caring for children aged 4 and below. Consider allowing street parking to meet or supplement the off-street parking requirement for a home occupation.

18

Examine the usefulness of incorporating working waterfront development areas into the zoning ordinance. http://lis.virginia.gov/cgi-bin/legp604.exe?ses=171&typ=bil&val=sb1203

The General Assembly adopted SB 1203 in 2017, enabling localities to designate certain areas as working waterfront development areas. Such areas would need to have access to water and be used for water-dependent commercial, industrial or government activities. This includes commercial and recreational fishing, tourism, aquaculture, boat and ship building, repair, and services, seafood processing and sales, transportation, shipping, marine construction, and military activities. The new law gives Portsmouth the ability to give incentives to private entities to purchase and assemble waterfront properties for working waterfront development, and authorizes Portsmouth to allow regulatory flexibility.

19 Administrative adjustments shall not be carried forward.

These powers granted to the Planning Director are not enabled by the state code. Similar powers are granted to the Zoning Administrator in §15.2-2286(4), and should be included in the Zoning Ordinance.

20 Break down obstacles to Council's ability to fill membership on appointed bodies.

The Planning Commission, Board of Zoning Appeals, and other appointed bodies included in the zoning ordinance should not have additional residency, age, professional, or similar restrictions that go above/beyond that specified in the state code

21 Revise definition for family by relocating the limits on unrelated persons to a regulatory section outside the definitions.

Best practices for zoning definitions dictate that the definition not contain regulatory language to ensure staff and members of the public do not overlook stipulations

22 Consolidate all zoning regulations into one document.

To improve zoning administration and reduce oversights, all zoning regulations should be included in one document and not rely on appendices outside of the zoning ordinance.



23 MuniCode friendly. As stipulated in the City's Request For Proposals, the new zoning ordinance will be easily editable in Microsoft Word. The ordinance will not incur unnecessary expenses with hosting for MuniCode beyond typical costs.

24 Zoning regulations must match current and desired local economy, as well as residents needs.

Common sense provisions like allowing residents to park commercial work vehicles at their residence shall be carried forward

25 Preservation/Government District (PG).

The Berkley Group team can review the PG District and collaborate with staff on updates and modifications to the district's standards. Per staff direction, the district will be carried forward to the new ordinance, but will be reworked to eliminate current issues with the district's conflicting purposes (ex. City construction/debris landfill is not a preservation site).

26 Compatible with associated regulations in the Code of Virginia.

Zoning regulations which are prohibited due to state statute, such as requiring Use Permits for ABC stores, will not be carried forward.

27 Streamline state code mandated provisions. Unless serving a compelling need, state code provisions can be paraphrased with a reference (ex. §15.2-2232)

28 Lapse of approval - §40.1-2.2(R).

This sunset clause on all permits with unspecified periods of validity should be eliminated. Tracking permit validity can be a cumbersome challenge without the proper database tools in place to store permit records and provide tickler reminders for staff's enforcement. Should a period of validity be mandated, such as for site plans, said validity should be included in the regulations of that application type.

29 Consolidate all administration authority with the Zoning Administrator.

The Planning Director should not be named with official duties in the zoning ordinance. Table 40.1-2.1(G) should not be carried forward to the new ordinance. The Director's position requires management of a host of essential functions, and that oversight is not recommended to also require regulatory decision making that the Zoning Administrator should hold instead. This creates additional efficiencies for staff resources by giving enforcement inspectors a singular authority for assistance on zoning violations. City staff has requested that the authority to set minimum standards for applications acceptance remain with the Planning Director. Staff would like the Zoning Administrator to set acceptance standards for applications which are mandated by the Code of Virginia for the Zoning Administrator's review. This includes provisions for waiving/modifying submission requirements, which can streamline the development process and support economic development projects.



30 Common Review Procedures.

Much of §40.1-2.2 takes the form of Planning Department standard operating procedures that are not mandates from the Code of Virginia. Such procedures can be an effective tool to manage a department's functions, but converting these procedures to regulatory obligations encumbers the staff with unnecessary legal mandates. The current ordinance opens the Planning Department up to possible zoning violations; much of the section can be removed from the zoning ordinance and repurposed as either Planning Department standard operating procedures or information for citizens on the department's website.

31 Exception process for development standards.

The Berkley Group team recommends a balanced approach between establishing use standards and performance criteria and requiring Use Permits where design standards and site specific conditions can be evaluated, with public input, and conditions imposed by City Council. General and use specific design standards should be directly related to public purposes and establish and level of design appropriate to Portsmouth. However, since “one size does not fit all,” an alternative process to the variance should be established, such as a special exception process through the BZA, to provide an alternative process that is not as stringent as the “hardship” requirements for a variance. Use Permits, however, should continue to be applied to uses that require careful site design considerations in order to insure appropriate infill development into the City’s existing neighborhoods.

32 Simplify the City's development standards. Reduce the number of use and design standards.

Article 5's development standards need to be reduced in quantity and complexity to simplify the development process. Technical standards should be cross referenced to determine whether commensurate standards are already adopted as part of the Hampton Roads Regional Construction Standards. Design standards and building material standards which have created difficulties for development projects and staff determinations should be eliminated. Standards shall be clear, understandable, and quantitative to reduce staff review times. The Berkley team will work with City staff throughout the draft review process to ensure Portsmouth's development standards will continue to yield high quality development projects for the community.

33

Ensure basic zoning terminology is defined, and methods for measurement (sign area, setback, etc.) and yard determination (front, side, rear, double frontage, etc.) are incorporated.

Such regulations standardize staff's administration of the zoning ordinance, ensuring consistent answers to questions for citizens and development community members.

34 Eliminate the regulatory requirement for a separate Procedures Manual.

The Development Procedures Manual is a 129 page document referenced in the current zoning ordinance. The Planning Director is, by ordinance, required to establish and maintain this Procedures Manual. This requirement should be eliminated, and all necessary procedures should be



reviewed for inclusion and streamlining prior to incorporation into the new Zoning Ordinance. Useful chapters in the DPM can be reconstituted as departmental standard operating procedures.

35 Separation requirements shall be reviewed for effectiveness.

Given Portsmouth's urban development pattern, requirements for use separations can unnecessarily complicate the development process and feasibility assessments. On-site screening and buffering requirements are a suitable alternative. Per staff recommendation, separation requirements shall be eliminated to the greatest extent possible. Only state-code mandated separations will be retained, along with standards for adult uses that were used with the pre-2010 ordinance. Removing these separation requirements will remove roadblocks to economic development projects that have been undermined in the current ordinance's "one size fits all" standards.

36 Site Plans - Create new processes for all site plan types.

The state code (§15.2-2246) enables a locality's authority for such development review regulations within the zoning ordinance. However, Portsmouth's new zoning ordinance will be crafted to match the City's site plan review program that gives the Director of Engineering and Technical Services the decision-making authority for site plan approval. The Type I and Type II processes, which are not enabled by §15.2-2246, can not be carried forward. Site plan validity shall be for 5 years upon adoption, in conformance with state requirements. Application types such as plot plans, minor site plans and major site plans will be evaluated with City staff for the zoning ordinance, while giving the City Engineer the authority to waive submission requirements or site plan requirements where appropriate. The Berkley Group team can coordinate the development of the site plan regulations and processes with James Wright and the Department of Engineering and Technical Services.

37 Board of Zoning Appeals.

The state code requires that Portsmouth have a BZA, but does not require the organizational information specified in §40.1-2.1(D) to be incorporated into the Zoning Ordinance. The regulations for membership, terms, vacancies, officers, meetings, quorum, powers and duties can be relocated to a by-laws document that is adopted by the BZA and reviewed on a periodic basis. The by laws can contain the BZA's required ex parte communications protocols, with the Zoning Ordinance having a simple state code reference.

38 Fee schedule references.

No fees should be included in the Zoning Ordinance. Fees should established as necessary, from time to time at the discretion of City Council. This avoids amending the ordinance to change fees. The fee schedule should be readily available on the Planning Department’s website and include contact information.



39 Consider including disclosure of real parties in interest as authorized in §15.2-2289.

The Code of Virginia permits localities, by ordinance, to require use permit, rezoning, and variance applicants to make complete disclosure of their equitable ownership of the real estate at the subject of the application. The disclosure would be submitted at the time of application, and would be a submission requirement to accept the application for further processing. These tools can enhance transparency in the development process, if desired by City Council.

40 Warrants for enforcement purposes.

The current ordinance allows the zoning administrator to request a warrant for inspecting site premises to determine whether a zoning violation has occurred. §15.2-2286(15) enables this explicitly for dwellings, but not for all structures/buildings/properties. The Berkley Group can have Sharon Pandak research this matter to ensure that the broader interpretation found in the current ordinance can be carried forward into the new ordinance.

41 Responsible persons for enforcement purposes.

The state code doesn't prescribe who is responsible with resolving a zoning violation when one is issued. Best practice recommends that the property owner be the central focus of inspections staff, but tenants or other associates of a property owner are acceptable if they are in a position to and are willing to resolve the violation. We recommend not naming a responsible person for maximum flexibility in enforcement proceedings.

42 Ensure definitions do not contain regulatory text.

Certain definitions (ex. breweries, family day care homes) have regulatory language embedded in them that can be overlooked when regulations are typically found in other sections of the Zoning Ordinance. The definitions need to define only, although cross referencing can help direct the reader to the appropriate regulatory text.

43 Suspension of standards for design review.

The state code does not authorize design review boards (Architectural Review Boards, or bodies such as Portsmouth's HPC or DDC) to suspend zoning ordinance standards when a hardship is demonstrated. Deviation from adopted standards or guidelines should be accounted for in each Board's design guidelines. The BZA is the review authority for hardships which can result in a variance approval, but not design committees. These carry overs from the pre-2010 zoning ordinance will be removed to comply with state statute.

44 Family day homes. The availability of child care is an essential factor in a locality's economic development competitiveness. Consider recommendations in diagnostic matrix to support the convenient, affordable access to child care for City residents and the local workforce.



45 Land use issues within right-of-way.

The official zoning map for Portsmouth excludes zoning district regulations from the rights-of-way. Per discussions with staff, regulations pertaining to improvements within the right-of-way are covered by Chapter 32 of the City Code (Streets, Sidewalks and Local Improvements). The Berkley Group team can work with City staff to identify land use issues typically administered with zoning regulations that occur within rights-of-way, and develop alternative tools for addressing such matters. Potential topics include sign regulations, small cell facilities, cafe/outdoor seating, appurtenances, and other types of building encroachments. Zoning regulations should not interfere with the use of franchise agreements and other tools to balance public needs with infrastructure needs in the right-of-way.

46 Reorganizing and modernizing D1 and D2.

The Berkley team will work with Planning Department staff to ensure the purpose and intent, permitted uses, and development standards for the downtown zoning districts are aligned with City Council's vision, and one of Council’s top priorities in revising the zoning ordinance. D1 - All provisions in violation of the Code of Virginia will be eliminated. The new zoning district will reflect Portsmouth's urban core as an economic, cultural, and entertainment center instead of the current transects. D2 - MDC's D-2/Uptown Land Use Study can be foundational source material for determining new zoning regulations for the areas currently zoned D-2. Form-based codes will not be used. Current districts can be evaluated for replacement. The Berkley Group team can examine using a PUD concept that gives City Council oversight with an initial concept approval that leaves engineering details to the site plan review process.

47 Definitions pertaining to airport and aircraft. To streamline and shorten the definitions section of the new zoning ordinance, consider removal of these definitions due to Portsmouth not having an airport.

48 One year time limit for resubmission on certain applications.

The current Common Review Procedures force an applicant who has had any application for a permit or development approval "requiring a public hearing" denied to wait one year prior to refiling an application "for all or part of the same land" unless this time limit is waived by the decision-making body. The Code of Virginia only authorizes this one year delay for rezonings, zoning text amendments, and variances, along with special exceptions only if the SE was reviewed by the BZA. The one year time limit is only to be used when a refiled application is "substantially the same petition" as the denied application. This one year time limit is optional; should it be carried forward to the new ordinance, it should only be used for the applications discussed above. The current ordinance's waiver of time limit procedure is only useful in very limited settings, and should not be carried forward.



49 Nonconforming uses.

The administration of nonconforming issues is a resource-intensive exercise for any planning department. To ease this burden, the zoning text should be reduced to only the essential regulations necessary to comply with the Code of Virginia. Only standards which help clarify the state statute should remain, such as the current language which describes how a nonconforming use reaching its two-year limit can retain its nonconforming status. The Planning Department can have a section of its website devoted to nonconforming uses which supplements the zoning regulations, which reduces the text and makes for easier use by staff. City staff have prioritized this as a central need in the new ordinance. Per staff recommendation, the Berkley Group team can examine options for reducing regulatory barriers in improving properties with nonconformities. Such options may include bonding the amount of site/construction improvements needed to eliminate the nonconformity, while allowing the property owner/tenant/resident to occupy a nonconforming structure and incrementally make the necessary improvements over a 3-5 year period instead of prior to occupancy approval.

50 Amateur radio and television antennas. Replace "behind the principal structure" currently listed in §40.1-4.4(C)(2) with either "in the rear yard" or "in the side or rear yard".

51 Development Standards Review & Modification

In establishing a Development Standards Manual it is good practice to establish a public input process for modifying and adding to the Standards Manual. It should include representation from all City Departments involved in maintaining public facilities as well as those that review public and private improvements. Modifications and additions should not be implemented without notice and an opportunity for public input prior to adoption.

52 Proffers and Conditional Zoning

The Berkley Group team will collaborate with City staff to ensure that the new ordinance implements the appropriate state enabling legislation pertaining to the administration of proffers and conditional zoning applications. Other options to the use of proffers will be examined per request by City staff.

53 Zoning compliance permit Per staff recommendation, the new ordinance will have a section with regulations requiring all structural improvements, regardless of size and/or association with a building permit, to be authorized with a zoning compliance permit prior to the commencement of construction.



54 Live entertainment

Per staff recommendation, develop a definition and performance standards for entertainment establishments that have live performances. Such performances include, but are not limited to, instrumental music, dance, comedy, and amplified/DJ music. The service of alcohol can be a determining factor for these uses, as well as whether the live performance is occurring at a restaurant/eating establishment. City Council will be consulted to ensure that the community needs are reflected in the new ordinance.

55 Latitude for resolving zoning violations

Per staff recommendation, include provisions in the new ordinance which authorizes the Zoning Administrator to establish a compliance schedule for a property owner to follow should the resolution of a zoning violation require additional time and steps beyond the mandated period to resolve the violation. Such time periods are typically 10-30 days dependent on the nature of the violation. Establishing such schedules is a best practice which allows staff to collaborate with property owners on resolving violations and avoiding lengthy, expensive court proceedings.

56 Special exceptions.

Per staff recommendation, the Berkley Group team can develop a special exception process for reviews of certain applications by the Board of Zoning Appeals. Such applications can include requests for modifications to nonconforming uses, parking reductions, and area/height/bulk standards in historic districts. The Berkley Group team will work with staff to identify additional ways this tool can be used in the new ordinance.

57 Urban agriculture. Relocation of existing regulations for keeping of chickens.

The Berkley Group team will provide best practices for allowing small-scale, urban-style agricultural uses in the new zoning ordinance. The industrial districts can be the initial location for these urban agricultural uses. The existing regulations pertaining to the keeping of chickens, per City staff, may need to be relocated outside the zoning ordinance to another, more appropriate chapter of the City Code.

58 Include multiple departments in interpretive discussions(§40.1-2.3(J)).

Subparagraph 4 outlines the standards for interpretations of the Zoning Ordinance to be used by the Zoning Administrator and Planning Director. These standards have been successfully implemented in Portsmouth, and staff has requested that they be carried forward in practice. Paragraph A(4) of Code of Virginia §15.2-2286 authorizes the Zoning Administrator to "[make] findings of fact and, with concurrence of the attorney of the governing body, conclusions of law regarding determinations of rights accruing under §15.2-2307 or subsection C of §15.2-2311". Although these standards are to be carried forward, they are not explicitly required to justify the Zoning Administrator's authority on determinations and interpretations. The standards can be relocated into a Standard Operating Procedure, internal to the Planning Office, for accepting/reviewing/issuing such determinations. The Zoning Administrator's interpretation authority will match state enabling legislation.

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