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 Annotations which are no longer valid have been deleted.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

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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.

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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.

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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.

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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.

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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.

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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.

 
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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.

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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.

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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.

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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."

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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."

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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.

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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