Henderson City Zoning Code

PART III

GENERAL PROVISIONS AND EXCEPTIONS

§ 903.01 INTERPRETATIONS.

The regulations in this chapter shall be subject to the interpretations and exceptions specified in this section.

(A) Use. The following accessory uses, in addition to those hereinbefore specified shall be permitted in any residential district, if the accessory uses do not alter the character of the premises in respect to their use for the purpose permitted in the district:

(1) The renting of rooms or the providing of table board in a dwelling as and incidental use to that of its occupancy as a dwelling of the character permitted in the respective district, but not to the extent of constituting a hotel as defined in this chapter, unless permitted in the district;

(2) The operation of necessary facilities and equipment in connection with schools, colleges, universities, hospitals and other institutions permitted in the district; and

(3) Recreation, refreshment and service buildings in public parks and playgrounds.

(B) Sign regulations. Signs other than those otherwise permitted in the following cases and under the following conditions:

(1) Signs displaying only the name of property or premises upon which displayed or of the owner or lessee;

(2) Signs not exceeding eight square feet in area pertaining only to the sale, rental or lease of the premises upon which displayed; and

(3) The following signs upon securing a conditional use permit as provided by this chapter for each such sign:

(a) Signs advertising the sale of a subdivision and located thereon; and

(b) Directional and informational signs of a public or quasi-public nature, including signs serving as directional signs to properties not situated adjacent to the street next to which the signs are located.

(C) Excavating for construction. Nothing in this chapter prohibits the excavating of nature materials for the construction of a building permitted in the district in which the same is to be located if the building is to be constructed on the lot from which the material is excavated. No use permit shall be required for such excavating.

(D) Location. No filling station, public garage or gasoline distributing station shall be located within 300 feet of a school, church, hospital or other public meeting place having a seating capacity of more than 50 persons.

(E) Height.

(1) In any district with a height limit of less than 75 feet, public and semi-public buildings, schools and churches, hospitals and other institutions permitted in the district, may be erected to a height not exceeding 75 feet. The front, rear and side yards shall be increased one foot for each one foot by which the building exceeds the height limit herein before established for such district.

(2) A dwelling in residential districts may be increased in height not to exceed ten feet and to a total of not exceeding three stories when two side yards of a width of not less than 15 feet each are provided.

(3) Upon the securing of a conditional use permit as provided in § 903.03 of this chapter, any building may be erected to a height exceeding that herein before specified for the respective district, but the total floor area of the building shall not exceed that possible for a building in the district erected within the height limit specified in this chapter for the district.

(4) Subject to any other provisions of law, towers, gables, spires, penthouses, scenery lofts, cupolas, water tanks, similar structures and necessary mechanical appurtenances may be build and used to a greater height that the limit established for the district in which the building is located, with the following qualifications.

(a) No such exception shall cover at any level more than 15% in area of the lot, nor have an area at the base greater than 1,600 feet.

(b) No tower, gable, spire or similar structure shall be used for sleeping or eating quarters or for any commercial purpose, except one incidental to the permitted uses of the main building.

(c) No building or structure in any district shall over-exceed a maximum height of 150 feet; except that, the height limitations of this chapter shall not apply to chimneys, church spires, flag poles, monuments, silos and radio towers.

(5) Where the average slope of a lot is greater than one foot rise or fall in seven feet of distance from the established street elevation at the property line, one story in addition to the number permitted in the district in which the lot is situated shall be permitted on the downhill side of any building if the height of the height of the building is increased above the limit specified for the district.

(F) Yards.

(1) For the purpose of computing front yard dimensions, measurements shall be taken from the nearest point of the front wall of the building to the street line, subject to the following qualifications.

(a) Cornices, canopies, or eaves may extend into the required front yard a distance not exceeding two feet, six inches.

(b) Fire escapes may extend into the required front yard a distance not exceeding two feet, six inches.

(c) A landing place or uncovered porch may extend into the required front yard to a distance not exceeding six feet, if the landing place or porch has its floor no height than the entrance floor of the building. An open railing no higher than three feet may be placed around such place.

(d) The above enumerated architectural features may also extend into any side or rear yard to the same extent; except that, no porch, terrace or outside stairway shall project more than three feet into any side yard and then, in the case of an outside stairway, only if it is unroofed and unenclosed above and below the steps. In no case shall a porch, stair landing or other architectural feature extend closer than four feet to the side property line.

(e) Fences, walls and hedges:

1. Except as limited below, a wall, fence or hedge, eight feet high or less, may occupy part of the required yard, provided it is set back two feet from the lot line. This setback requirement shall not apply to chain-link fencing; provided, the same shall be installed with the good side out.

2. No wall or fence more than four feet high, except a retaining wall, shall be constructed in a front yard without a special use permit.

3. Vision clearance in any residence zone on any corner lot; no fence or accessory structure or planting shall rise over two and one-half feet in height above the level of the public sidewalk within 20 feet of any corner, so as to interfere with traffic visibility across the corner. No fence or wall or planting rising over two and one-half above the level of the public sidewalk shall be erected on any interior lot within ten feet of the front property line where it will interfere with traffic visibility from a driveway.

(2) In the residential districts, in any case where 25% or more of the lots in any block located in the same district, exclusive or the frontage along the side or a corner lot, has been heretofore improved with buildings or a character permitted in the district and the front yards on the lots vary in depth to an extent not greater than six feet, the required front yard depth for the district shall be disregarded in the block and instead the front yard required on each lot in the block shall be of a depth not less than the average depth of the front yards on the lots on which are located such existing buildings, to a maximum of 50 feet. The same rule shall apply in any other residential district on which are located such existing buildings in less than the depth of front yards otherwise required by this chapter.

(3) In determining the depth of rear yard for any building where the rear yard opens into an alley, one-half the width of the alley, but not exceeding ten feet, may be considered as a portion of the rear yard subject to the following qualifications.

(a) The depth of any rear yard shall not be reduced to less than ten feet by application of the exception (15 feet is accepted when there is no alley/right-of-way access).

(b) If the door of any building or improvement, except a fence, opens toward an alley, it shall not be erected or established closer to the center or the alley then a distance of 15 feet.

(4) In case an accessory building is attached to the main building, it shall be made structurally a part of the main building and shall comply in all respects with the requirements of this chapter applicable to the main buildings. An accessory building, unless attached to and made a part of the main building, shall not be closer than five feet to the main building, except as otherwise provided in this section.

(5) A detached accessory building not over one story and not exceeding 12 feet in wall height may occupy not to exceed 30% of the area of any rear yard.

(6) Detached accessory building in residential districts shall conform to the following additional regulations as to their locations upon the lot.

(a) In the case of an interior lot abutting upon one street, no detached accessory building shall be erected or altered so as to encroach upon the front of the lot.

(b) In the case of an interior lot abutting upon two or more streets, no detached accessory building shall be erected or altered so as to encroach upon the one-fourth of the lot nearest either street or in any case nearer to the established building line on either street frontage.

(c) In the case of a corner lot abutting upon two streets, no accessory building shall be erected or structurally altered so as to encroach upon the front half of the lot, nor so that the building will be to the lot line along the street side of the lot than a distance equal to the width of side yard on the street side of the lot; but on a corner lot adjacent to a key lot no detached accessory building shall be located nearer to the street line of the street upon which the key lot faces than a distance equal to the depth of front yard required on the key lot.

(d) In the case of a corner lot abutting on more than two streets, no detached accessory building shall be erected or altered so as to be nearer to the lot line long the street side of the lot than a distance equal to the width of the side yard on the street of the lot or nearer to any other street line of the lot than a distance equal to one-fourth the depth of the lot.

(e) No detached accessory building shall be within five feet of the sideline of the front half of any adjacent lot, except as herein before specifically permitted.

(f) The forgoing rules shall not require:

1. Any detached accessory building to be more than 75 feet from any street line bounding the lot; and

2. The street side of any detached accessory building to be nearer to the lot line opposite the street line than 20 feet.

(7) A private garage to be separated from the front and side lines of the lot where the slope of the front half of the lot is greater than one foot rise or fall in a distance of seven feet from the established street elevation at the property line or where the elevation of the lot at the street line is five feet or more above or below the established street elevation.

(8) No swimming pool shall be erected, excavated or otherwise placed or used on any property unless it is completely surrounded by a permanent fence at least six feet in height. The fence must be built in accordance with division (F)(1)(e) above and all other provisions of this chapter.

(G) Major recreational equipment. No boat, boat trailer, travel trailer, pickup-camper or coach designed to be mounted on a motor vehicle, motorized dwelling, tent trailer or similar major recreational equipment, and no case or box used for transporting such equipment shall be parked or stored for more than 72 hours on any lot in a residential district except in a car port or enclosed building or in a side or rear yard. No point or any such equipment shall be located within three feet of the rear or side lot line, except when parked in a established driveway and in no case shall any such point be closer than ten feet from the living quarters of a residence on adjoining property. No such equipment shall be used for living, sleeping or housekeeping purposes when parked or stored on a residential lot, or in any location not approved for such use.

(H) Performance standards.

(1) Compliance required. Every use permitted by this chapter shall be so established and maintained as to comply with the provisions of this section. The Council may require the owner or operator of a use permitted by this chapter to provide such tests or investigations by an independent testing organization satisfactory to the Council as are necessary to show compliance with these standards. The cost of such investigations and tests shall be shared equally the owner or operator and the city unless the results disclose noncompliance with these standards; in that event, the entire cost shall be borne by the owner or operator. This provision does not preclude the city from making any investigations and tests it finds appropriate to determine compliance with these standards.

(2) Noise. Noise shall be measured on any property line of the tract on which the source of the noise is located. Noise shall be so muffled as not to become objectionable due to intermittence, beat frequency, shrillness or intensity. At the property line, the sound pressure level of noise radiated continuously from a facility shall not exceed the values given in Table A. The sound pressure level shall be measured with a Sound Level Meter and an Associated Octave Band Analyzer, both of which are manufactured to specifications published by the American Standard Specifications for an Octave Band Filer Set for the Analysis of Noise and other Sounds Z24, 10-1953, American Standards Association, Inc., New York, New York. Measurements shall be made using the flat network of the sound level meter.

(3) Odor. No use shall cause the discharge of toxic, noxious or odorous matter beyond the limits of the site where it is located in such concentrations as to be obnoxious or otherwise detrimental to the public health, safety, comfort or welfare or cause injury to property or business

Table A: Maximum Permissible Sound Pressure Levels of Specified Points of Measurement for Noise Radiated Continuously from a Facility
Band Cycles per Sound Frequency	Maximum Permitted Sound Level (Decibels)
20 - 75	75
150 - 300	59
300 - 600	52
600 - 1,200	46
1,200 - 2,400	40
2,400 - 4,800	34
Over 4,800	32

(4) Glare. Direct or reflected glare, such as from floodlights, spotlights or high temperature processes, and as differentiated form general illuminations, shall not be visible beyond the site of origin at any property line. Any lights used for exterior illumination shall be directed away from adjacent properties.

(5) Vibrations. Vibrations at any property line shall not be discernible to the human sense of feeling for three minutes or more duration in any one-hour period. Vibration of any kind shall not produce at any time an acceleration of more than one-tenth gravities or result in any combination of amplitudes and frequencies beyond the ‘’safe’‘ range of Table VII, Untied States Bureau of Mines Bulletin No. 442 ‘’Seismic Effects of Quarry Blasting’‘ on any structure. The methods and equations of that bulletin shall be used to compute all values for the enforcement of this provision.

(6) Smoke. Smoke shall be measured at the point of emission by using the Ringlemann Smoke Chart, published by the United States Bureau of Mines in circular No. 7718. Smoke not darker or more opaque than No. 1 on that chart may be emitted; except that, smoke not darker or more opaque than No. 3 on the chart may be emitted for a period of not longer than four minutes in any 30 minutes. These provisions applicable to visible gray smoke shall also apply to visible smoke or a different color by with an equivalent capacity.

(7) Dust. Solid or liquid particles shall not be emitted at any point in concentrations exceeding three-tenth grains per cubic foot of the conveying gas or air. For measurement of the amount of particles in gases resulting form combustion, standard corrections shall be applied to a stack temperature of 500°F and 50% excess air.

(8) Fumes or gases. Fumes or gases shall not be emitted at any point in concentrations that are noxious, toxic or corrosive. The values given in Table 1 (Industrial Hygiene Standards - Maximum Allowable Concentration for eight-hour day, five days per week), Table III (Odor Thresholds), Table IV (Concentrations of Substances Causing Pain in the Eyes) and Table V (Exposure to Substances Causing Damage to Vegetation) in the latest revision of Chapter 5, ‘’Physiological Effects’‘, that contains such tables, in the Air Pollution Abatement Manual, published by the Manufacturing Chemists’ Association, Inc., Washington, D.C., are hereby established as guides for the determinations of permissible concentrations and amounts. The city may require detailed plans for the elimination of fumes of gases before the issuance of a building permit.

(9) Fire hazards. Any activity involving the use or storage of flammable or explosive materials shall be protected by adequate firefighting and fire prevention equipment and by such safety devices as are normally used in the handling of such materials, Such hazards shall be kept removed from adjacent activities to a distance which is compatible with the potential danger involved.

(10) Wastes. All solid waste material, debris or refuse shall be kept within a completely enclosed building or properly contained in a closed container designed for such purposes. All liquid wastes containing any organic or toxic matter shall be either discharged into a public sanitary sewer or treated in a manner prescribed by the Health Officer.

(11) Air pollution. Every activity shall conform to state regulations relating to air quality standards and air pollution control.

(12) Sewer and water. The design and construction of water supply facilities and treatment of all sewage and waste shall comply with the city, county and state health standards, ordinances, statutes and requirements.

§ 903.02 OFF-STREET PARKING AND LOADING SPACE.

(A) Off-street automobile storage or parking space shall be provided on any lot which any of the following uses are hereafter established:

Dwelling	1 parking space for each individual unit
Hotel	1 parking space for each 4 guests sleeping rooms
Industrial or manufacturing establishments	1 parking space for each 400 square feet of gross floor area or for each 5 workers, based on peak employment and adequate space for loading and unloading all vehicles used incidental to the operations of the industrial or manufacturing establishment
Office building and stores	1 parking space for each 300 square feet of office or store floor area
Theater, stadium, auditorium or other places of public assembly	1 parking space for each 1 seat, based on maximum seating capacity
Tourist accommodation	1 parking space for each room offered for tourist accommodations

(B) Such space shall be provided with vehicular access to street or alley and shall be considered required open space associated with permitted use. It shall not be reduced or encroached upon in any manner after the use is established. Where such space cannot be reasonably provided on the same lot with the principal use, the Council, with the approval of the Planning Commission, may permit such space to be located on other off-street property if the space is within 500 feet of the permitted use, measured along lines of public access.

(C) In any commercial or industrial district, space for loading of vehicles shall be provided on the same lot for every building used or designed to be used for that purpose. One loading space at least ten by 25 feet shall be provided for each 20,000 square feet of floor area in the building. Where such space is completely enclosed within a building by walls and doors which close, a height clearance of at least 12 feet, nine inches shall be provided. Where such space is located wholly or in part outside of the building and is not completely enclosed, a height clearance of at least 14 feet shall be provided. Where approach ramps are sloped so as to necessitate clearance in addition to that here in specified, this clearance shall be adequate to allow the free passage of a semi-trailer 12 feet, six inches in height and with a wheel base of 21 feet. These requirements may be increased, modified or waived on appeal where conditions or circumstances justify such action.

§ 903.03 CONDITIONAL USE PERMITS.

(A) Conditional use permits may be issued for any of the following:

(1) Any of the uses or purposes for which such permits are required of permitted by the provisions of this chapter, except as provided in division (B) below;

(2) Public utility or public service uses or public buildings in any district when found to be necessary for the public health, safety, convenience or welfare;

(3) Commercial excavating of natural materials used for building or construction purposes, in any district;

(4) To classify as a conforming use any institutional use existing in any district; and

(5) To permit the location of any of the following uses in a district from which they are excluded by the provisions of this chapter: airport, library, community center, church, hospital, any institution of an educational, philanthropic or charitable nature, cemetery, crematory, mausoleum or any other place for the disposal of the human dead.

(B) (1) Applications for the issuance of a conditional use permit shall be made to the Planning Commission; except that, any proceedings to classify certain uses as conforming uses as provided in this section may be initiated either by such application or by the City Council or the Planning Commission. The Planning Commission may hold such hearings on the proposal to issue a conditional use permit as it may consider necessary; but at least one public hearing shall be held on any application for a use permit for the establishment of any use listed in division (A)(5) above. Following the hearing, the Planning Commission shall make a report to the Council upon the proposal and shall recommend the granting of a permit unless it finds that the establishment, maintenance or conducting of the use for which a permit is sought will not under the circumstances of the particular case be detrimental:

(a) To the health, safety, morals, comfort, convenience or welfare of the persons residing or working in the neighborhood of such use; or

(b) To the public welfare or injurious to property or improvements in the neighborhood.

(2) It may designate conditions and require guarantees in the granting of use permits in the manner provided in § 903.05 of this chapter for the granting of adjustments. Upon receipt of the report of the Planning Commission, the Council shall hold whatever public hearing it deems advisable and shall make a decision upon the proposal to grant a use permit. If it finds that the conditions exist which are necessary under this section before the Planning Commission may recommend the granting of a use permit, the Council may grant the use permit and it may attach to the permit such conditions and guarantees as are provided for in § 903.02 of this chapter for the granting of adjustments.

(C) Any use permitted under the terms of any conditional use permit shall be established and conducted in conformity to the terms of such permit and of any condition designated in connection therewith.

(D) Upon consideration of the factors listed above and the purpose of this chapter, the Planning Commission may attach such conditions to the granting of conditional use permits as it deems necessary to fulfill the purposes of this chapter. Such conditions may include, but are not limited to, the following:

(1) Modification of waste disposal and water supply facilities;

(2) Limitations on period of use, occupancy and operation;

(3) Imposition of operational controls, sureties and deed restrictions;

(4) Requirements for construction of channel modifications, dikes, levees and other protective measures; and

(5) Flood-proofing measures, in accordance with the state’s Building Code. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the flood-proofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area.

§ 903.04 NON-CONFORMING USES.

(A) A structure or the use of a structure or premises which was lawful before the passage or amendment of this chapter, but which is not in conformity with the provisions of this chapter may be continued subject to the following conditions.

(1) No such use shall be expanded, changed, enlarged or altered in anyway which increases its non-conformity.

(2) No structural alteration or addition to any non-conforming structure over the life of the structure shall exceed 50% of its market value at the time of its becoming a non-conforming use, unless the entire structure is permanently changed to a conforming use.

(3) If any non-conforming use is discontinued for 12 consecutive months, any future use of the building premises shall conform to this chapter. The assessor shall notify the Zoning Administrator in writing of instances of non-conforming uses which have been discontinued for a period of 12 months.

(4) If any non-conforming use is destroyed by any means to an extent of 50% or more of its market value, it shall not be reconstructed, except in conformity with the provisions of this chapter. The sole exception to this provision is stated in division (D) below.

(B) No junkyard may continue as a non-conforming use for more than one year after the effective date of this chapter.

(C) No outdoor advertising structure may continue as a non-conforming use for more than one year after the effective date of this chapter.

(D) Manufactured homes and homes which are transportable structures and designed to be used as dwellings, but do not meet the standards of a manufactured home in some way are expressly allowed to continue as non-conforming uses for and during the lifetime of the person or persons who own the property at the time of adoption of this chapter. If a non-conforming home is destroyed by any means, during the present owner’s lifetime, another manufactured home may be placed on the property. Upon sale or transfer of the property, the existing manufactured home may remain on the property in accordance with division (A) above, but upon the home’s destruction or removal, any future use of the property shall conform to this chapter.

(E) No motor vehicle or trailer without current license plates or existing in an inoperable condition shall be parked or stored in any street or alley.

§ 903.05 BOARD OF ADJUSTMENTS.

(A) Establishment. There is hereby created a Zoning Board of Adjustments and Appeals, which shall be composed of members of the Planning Commission. Three members of the Board constitute a quorum, and all action by the Board requires the affirmative vote of the quorum. The Board shall serve without compensation. The Board shall elect one of its members as Chairperson and appoint a Secretary who may, but need not be, one of its members. Staff services for the Board shall be furnished by the Council.

(B) Rules. The Board of Adjustments shall adopt rules for the conduct of business and may exercise all of the powers conferred on such boards by state law.

(C) Administrative review. The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of administration of this chapter.

(D) Variances. The Board may authorize, upon appeal in specific cases, such variance from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, literal enforcement of the provisions of this chapter will result in unnecessary hardship so that the spirit of this chapter shall be observed and substantial justice done. No variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection that the regulatory flood protection elevation for the particular area, or permit standards lower that those required by state law.

(E) Hearings. Upon filing with the Board a request for variance or an appeal from an administrative order or determination, the Board shall set a date for hearing thereon, which be not later than 60 days from the date of filing, and shall hear such persons as wish to be heard, either in person or by agent or attorney. Notice of any such hearing shall be mailed not less than ten days before the date of hearing to each person who filed the appeal or request and, in the case of a request for a variance, to each owner of property situated wholly or partly within 350 feet of the property to which the variance related insofar as the name and addresses of such owners can be determined by the Clerk from records available to the public. The Board shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed variance sufficiently in advance so that the Commissioner will receive at least ten days’ notice of the hearing for all variance granted in Floodplain District (F-1), Part VIII of this chapter.

(F) Decisions. The Board shall arrive at a decision on such appeal on variance with ten days. In passing upon an appeal the Board may, so long as such action is in conformity with the provisions of this chapter, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination appealed from. It shall make its decision in writing setting forth the finding of fact and the reasons for the decisions for all variances granted in Floodplain District (F-1), Part VIII of this chapter.

(G) Appeal to the City Council and District Court. Appeals from any decision of the Board may be taken by any person or persons, jointly or severally, aggrieved by any decision of the Board, or any taxpayer, officer, department, board or bureau of the municipality, to the City Council. The decision of the City Council may be appealed to the district court of this jurisdiction as provided in M.S. § 462.361, as it may be amended from time to time.

§ 903.06 GROUP HOUSING PROJECTS.

When a housing project consisting of a group of two or more buildings is to be constructed on a plot of land of at least three acres and the land is not to be subdivided into the customary streets and lots or the existing or contemplated street and lot layout make it impracticable to apply the requirements of this chapter to the individual buildings in the housing project, the Council, upon favorable recommendation of the Planning Commission after a public hearing, shall apply the requirements of this chapter to the housing project in a manner that will be in harmony with the character of the neighborhood, will ensure a density of land use no higher and a standard of open space at least as high as required by this chapter in the district in which the project is located. In no case shall the Council authorize a non-residential use or a building height prohibited in the district.

§ 903.07 CERTIFICATE OF OCCUPANCY.

(A) A certificate of occupancy shall be obtained before:

(1) Any vacant land is hereafter occupied or used, except for agricultural purposes other than livestock farming or dairying;

(2) Any building hereafter erected or structurally altered is occupied or used; or

(3) The use of any such building is altered.

(B) (1) Application for a certificate of occupancy for a new building or for an existing building which has been altered shall be made to the City Clerk as part of the application for such building as required in of this chapter. The certificate shall be issued within ten days after the erection or alteration of such building or part thereof has been completed in conformity with the provisions of this chapter. Pending the issuance of such a certificate, the City Clerk may issue a temporary certificate of occupancy for a period of not exceeding six months during the completion of the erection or alteration of such building.

(2) The temporary certificate shall not be construed as in any way altering the respective rights, duties or obligations of the owners or the city relating to the use or occupancy of the premises or any other matter except under such restrictions and provisions as will adequately ensure the safety of occupants.

(C) Written application for a certificate of occupancy for the use of vacant land or for a change in the character of the use of land as provided in shall be made before any such land shall be so occupied for use. Such certificate of occupancy shall be issued within three days after the application therefor has been made if the use is in conformity with the provisions of this chapter.

(D) (1) Every certificate of occupancy shall state that the building or proposed use of a building or land complies with all provisions of law and of this chapter. A record of all certificates of occupancy shall be kept on file in the office of the City Clerk and copies shall be furnished on request to any person having a propionate or tenancy interest in the building or land affected. No fee shall be charged for a certificate of occupancy.

(2) No building permit for the erection or alteration of a building shall be issued before application has been made for a certificate of occupancy.