For the purpose of this title and these regulations, the City is hereby divided into thirteen (13) classes of districts, which are established as follows:

R-1 Residential

R-2 Residential

R-5 Residential

R-7 Residential

R-9 Residential

RR-1 Rural Residential

C-1 Commercial

I-1 Light Industrial

I-2 Heavy Industrial

P Public Use

PUD Planned Unit Development

MU Mixed Use

A Agricultural

1.

Official zoning map. The City is hereby divided into zones, or districts, as shown on the official zoning map which, together with all explanatory matter thereon, is hereby adopted by reference and declared to be a part of this title.

The official zoning map shall be identified by the signature of the Mayor attested by the City Auditor, and bearing the seal of the City under the following words: "This is to certify that this is the official zoning map referred to in Title 9 of the Code of Ordinances of Lincoln, North Dakota," together with the date of the adoption of this title.

If, in accordance with the provisions of this title and N.D.C.C. Chapter 40-47, changes are made in district boundaries or other matter portrayed on the official zoning map, such changes shall be entered on the official zoning map promptly after the amendment has been approved by the City Council, with an entry on the official zoning map as follows: "On [date], by official action of the City Council, the following change [changes] were made in the Official Zoning Map: [brief description of nature of change]," which entry shall be signed by the Mayor and attested by the City Auditor. No amendment to this title which involves matter portrayed on the official zoning map shall become effective until after such change and entry has been made on said map.

No changes of any nature shall be made in the official zoning map or matter shown thereon except in conformity with the procedures set forth in this title. Any unauthorized change of whatever kind by any person or persons shall be considered a violation of this title and punishable as provided under Section 9-05-06.

Regardless of the existence of purported copies of the official zoning map which may from time to time be made or published, the official zoning map which shall be located in the office of the City Auditor shall be the final authority as to the current zoning status of land and water areas, buildings, and other structures in the City.

2.

Replacement of official zoning map. In the event that the official zoning map becomes damaged, destroyed, lost, or difficult to interpret because of the nature or number of changes and additions, the City Council may by resolution adopt a new official zoning map which shall supersede the prior official zoning map. The new official zoning map may correct drafting or other errors or omissions in the prior official zoning map, but no such correction shall have the effect of amending the original official zoning map or any subsequent amendment thereof. The new official zoning map shall be identified by the signature of the Mayor attested by the City Auditor, and bearing the seal of the City under the following words: "This is to certify that this official zoning map supersedes and replaces the official zoning map adopted [date of adoption of map being replaced] as part of Title 9 of the City."

Unless the prior official zoning map has been lost, or has been totally destroyed, the prior map or any significant parts thereof remaining, shall be preserved, together with all available records pertaining to its adoption or amendment.

Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the following rules shall apply:

1.

Boundaries indicated as approximately following the center lines of streets, highways, or alleys shall be construed to follow such center lines.

2.

Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines.

3.

Boundaries indicated as approximately following City limits shall be construed as following such City limits.

4.

Boundaries indicated as following railroad lines shall be construed to be midway between the main tracks.

5.

Boundaries indicated as following shore lines shall be construed to follow such shore lines, and in the event of change in the shore line shall be construed as moving with the actual shore line; boundaries indicated as approximately following the center lines of streams, rivers, canals, lakes, or other bodies of water shall be construed to follow such center lines.

6.

Boundaries indicated as parallel to or extensions of features indicated in subsections 1 through 5 above shall be so construed. Distances not specifically indicated on the official zoning map shall be determined by the scale of the map.

7.

Where physical or cultural features existing on the ground are at variance with those shown on the official zoning map, or in other circumstances not covered by subsections 1 through 6 above, the Board of Adjustment shall interpret the district boundaries.

8.

Where a district boundary line divides a lot which was in single ownership at the time of passage of this title, the Board of Adjustment may permit, as a special exception, the extension of the regulations for either portion of the lot not to exceed fifty (50) feet beyond the district line into the remaining portion of the lot.

The regulations set by this title within each district shall be minimum regulations and shall apply uniformly to each class or kind of structure or land, and particularly, except as hereinafter provided:

1.

No building, structure, or land shall hereafter be used or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved, or structurally altered except in conformity with all of the regulations herein specified for the district in which it is located.

2.

No building or other structure shall hereafter be erected or altered:

a.

To exceed the height or bulk;

b.

To accommodate or house a greater number of living units;

c.

To occupy a greater percentage of lot area; or

d.

To have narrower or smaller rear yards, front yards, side yards, or other open spaces than herein required; or in any other manner contrary to the provisions of this title.

3.

No part of a yard, or other open space, or off-street parking or loading space required about or in connection with any building for the purpose of complying with this title, shall be included as part of a yard, open space, or off-street parking or loading space similarly required for any other building.

4.

No yard or lot existing at the time of passage off this title shall be reduced in dimension or area below the minimum requirements set forth herein. Yards or lots created after the effective date of this title shall meet at least the minimum requirements established by this title.

5.

All territory which may hereafter be annexed to the City shall be considered to be in the agricultural district until otherwise classified.

The regulations specified in this title shall be subject to the following supplementary provisions and interpretations:

1.

Structures excluded from height limits. A building height limit set forth in this title shall not apply to belfries, chimneys, cupolas, domes, flagpoles, flues, monuments, radio and cell towers, spires, tanks, water towers, wind farms or similar structures, nor to bulkheads, elevators, water tanks or similar roof structures and mechanical appurtenances. No such structure shall have a total area greater than twenty-five (25) percent of the roof area of the building; nor shall such structure be used for any residential purpose or any commercial or industrial purpose other than a use incidental to the main use of the building. Nothing in this paragraph nor in this title shall be interpreted to permit the erection of any structure in violation of any applicable provisions of the Bismarck Municipal Airport zoning regulation ordinances.

2.

Projection into yards. Steps, terraces and porches may extend into any minimum front yard not more than eight (8) feet, provided the floor thereof is no higher than that of the first floor entrance to the building; and such features may extend into any minimum side yard not more than four (4) feet, provided, however, that such feature shall not be less than four (4) feet distance from any lot line. Fire escapes and outside open stairways may project not more than two (2) feet into any minimum required yard. Chimneys may extend into any minimum yard not more than two (2) feet. Civil defense shelters may extend into any required side yard to within two (2) feet of the lot line; they may extend into a required front or rear yard not more than twelve (12) feet. The roof or the shelter that extends into any required yard shall not extend over eight (8) inches above outside grade or above existing basement height, whichever is the lesser.

3.

Front yard depths. Unless otherwise provided in these regulations, the minimum front yard depth for all buildings shall be twenty-five (25) feet. When the majority of lots in a block have, prior to the enactment of this title, been lawfully occupied with buildings having greater front yard depth than required by these regulations, no building hereafter erected or altered shall have a less front yard depth than the average depth of said existing front yards. This regulation shall apply also to the side yard, adjacent to a street, of a corner lot, but shall not be so construed as to reduce the buildable width of a corner to a minimum of twenty-four (24) feet. No portion of any alley shall be considered a part of any yard.

4.

Fences and walls. The building line and yard requirements of these regulations shall not apply to retaining walls or other walls or fences not over six (6) feet in height; except that, on a corner lot in any residential district there shall be no fence, wall, terrace, structure, shrubbery, planting, or other obstruction to vision having a height greater than three (3) feet above the curb level for a distance of twenty-five (25) feet from the intersection of the front and side street lines. On a corner lot in a commercial or industrial district, no portion of a building or other obstruction to vision between two (2) and ten (10) feet above the curb level, except a post or column with a maximum width of two (2) feet, shall occupy the space formed within the triangular yard space formed by measuring five (5) feet from the corner of the intersecting property lines and the hypotenuse of the triangle becomes the setback line.

It shall be unlawful for any person to erect or maintain any barbed wire fence in or along a residential area in the City. Further, any barbed wire fence erected in other areas of the City shall, along any public street or sidewalk, maintain the lowest strand of barbed wire at least six (6) feet above sidewalk grade, over the top of a non-barbed fence over private property and at least six (6) inches inside the property line.

5.

Location of accessory buildings.

a.

In any residential district all accessory buildings shall be located in the rear yard and shall be a minimum of two (2) feet from the rear or side lot line nor less than five (5) feet from the alley line. However when the approach to the garage is parallel with the alley and the cars maneuver on private property, the rear yard of the accessory building shall be located a minimum of two (2) feet from the alley line. In the case of a corner lot in a residential district, with a side lot line parallel to a side street, and a rear lot line abutting the side lot line of a lot having frontage on such side street, an accessory building shall be located in the rear yard of such corner lot maintaining a setback of a minimum of twenty (20) feet from the side street. The side yard of the accessory building shall be the same minimum width required for the principal building located on the lot fronting the side street. If such accessory building is set back at least ten (10) feet behind the rear of the principal building on the lot fronting such side street, such accessory building may be located a minimum of two (2) feet from the rear and side lot lines of such corner lot.

In a residential district a detached garage on an inside lot may be located with the same setback from the street as required for the principal building providing, that such detached garage does not violate the side yard requirements for a principal building for the district in which it is located. If such detached garage is located at least ten (10) feet behind the rear wall of the principal building on the adjacent lots, having the greater setback from the front property line, such garage may be located a minimum of two (2) feet from the side lot line. In all instances, such measurement, shall be made from the eaves.

An accessory building, or any enclosure, group, or run, or any part thereof used for the housing, shelter, or sale of animals or fowl shall be located at least twenty-five (25) feet from any rear or side lot line, and at least fifty (50) feet from any building used for dwelling purposes on an adjoining lot.

6.

Through lots. Any building constructed on any interior lot having a frontage on two (2) streets shall be located so as to comply with the regulations governing front yards on both streets.

7.

Mixed uses. Any building containing two (2) or more dwellings units and space designed or used for commercial purposes shall comply with all requirements for multifamily dwellings in the district in which it is located. Provided also, that no such building designed or used for mixed residential and other uses shall be permitted in any district in which a multifamily dwelling is not permitted.

The uses of land and buildings permitted in the several districts established by this title are designated by listing the principal uses permitted. In addition to such principal uses, it is the intent of this title and this section to permit in each district those uses customarily incidental to any principal use permitted in the district. Such permitted incidental uses are specifically listed as follows, and any listed use is permitted on the same lot with the principal use to which it is incidental:

1.

Accessory uses. Passenger vehicles as used herein shall mean to include automobiles, motorcycles, motorized campers, or pickup trucks licensed for a gross weight not to exceed ten thousand (10,000) pounds.

a.

For dwelling premises.

(1)

Private garages or off-street parking spaces incidental to a dwelling located in a residential district.

Single-family dwelling—Spaces or garages for four (4) passenger vehicles.

Two-family dwelling—Spaces or garages for four (4) passenger vehicles.

Multiple-family dwelling including row home/townhome—Spaces or garages for three (3) passenger vehicles per dwelling unit.

(2)

Private greenhouse, vegetable, fruit, or flower garden, from which no products are sold or offered for sale.

(3)

Children's playhouse, and playground equipment.

(4)

Shed, tool room for storage of equipment used in grounds or building maintenance but not including stable, chicken house or other buildings to house agricultural livestock.

(5)

No more than a total of three (3) dogs or cats, four (4) months of age or older.

(6)

Private kennel housing not more than three (3) dogs of age four (4) months or older, all of which dogs are owned by a person occupying the dwelling premises.

(7)

Customary domestic use, but not including horses, poultry or agricultural livestock.

(8)

Private swimming pool and bathhouse.

(9)

Statuary, trellises, barbecue stove or similar ornamental or landscaping features.

(10)

In the RR-1 Rural Residential District only, a private horse stable located on the same record lot on which a single-family dwelling is located provided:

(a)

That said record lot is at least five (5) acres in size;

(b)

That no horse shall be used for other than private use;

(c)

That no horse, or horse stable, barn or shelter shall at any time be or be located within one hundred (100) feet of any lot line of said record lot; and

(d)

That the number of horses present on said record lot at no time is in excess of the following limitations:

This subparagraph (10) shall not be construed to allow any horse to be present on said record lot until both the private horse stable and the single-family dwelling have been completely constructed thereon. As used in this subparagraph (10), record lot shall mean land designated as a single, separate and distinct parcel on a legally recorded subdivision plat filed in the office of the County Recorder.

b.

Church.

(1)

Parish house, together with any use accessory to a dwelling as herein listed.

(2)

Religious education building.

(3)

Bulletin board, kiosk or billboard not to exceed twenty (20) square feet in area.

(4)

Off-street parking lot for the use without charge of staff, members and visitors to the church.

c.

Health-medical group.

(1)

Off-street parking lot for the use without charge of staff, members, or visitors.

(2)

Private garage.

(3)

Nuns' home, nurses' quarters.

(4)

Laundry incidental to hospital.

d.

Office-bank, retail, commercial-recreation groups:

(1)

Storage of customer, client, or operator-owned vehicles.

(2)

Storage of supplies, stock and merchandise within a fully enclosed building.

(3)

Repair facilities incidental to principal use subject to the following limitations:

(a)

Floor space so used shall not exceed twenty-five (25) percent of the total floor space devoted to the principal use;

(b)

No motor power other than electricity shall be used;

(c)

No motor used on any machine for repair shall exceed one (1) horsepower; and

(d)

All operations shall be conducted so that no dust, odor, smoke, noise, vibration, heat or glare created by such operation is perceptible from any boundary line of the lot on which the principal use is located.

e.

Service group.

(1)

Garage, or parking lot for the storage of employee, customer, client, or operator-owned vehicles.

2.

Home occupation.

a.

Any occupation customarily incidental to the principal use as a dwelling is permitted subject to the following limitations:

(1)

No person other than a member of the immediate family occupying a dwelling is self-employed except domestic help.

(2)

No stock in trade is displayed or sold upon the premises.

(3)

No alteration of the principal building changes the character thereof as a dwelling.

(4)

No illumination sign is used, and no sign other than one giving the name and occupation, with a maximum of one (1) square foot in area is displayed, except when the home occupation is in an MU zone that permits mixed uses. In such instances, signs shall have a maximum of five (5) square feet with no illumination.

(5)

No more than twenty-five (25) percent of the area of only one (1) story in the entire building is devoted to the home occupation.

b.

The following are hereby declared to be customary home occupations as intended by this section:

(1)

Dressmaker, seamstress.

(2)

Music teacher.

(3)

Artist, sculptor.

(4)

Author.

(5)

Emergency treatment only of patients by physician, dentist or licensed drugless physician.

(6)

Emergency interview only of clients by lawyers, architects, engineers and similar professions.

(7)

Minister.

(8)

Barber, beautician.

In order to carry out the purposes of this title, certain uses having similar characteristics are classified together as "use groups". In any district in which a use group is permitted, it is the intent of this title to permit any particular member of that use group to be located within that district. In any district in which a use group is not listed as a permitted use, it is the intent of this title to prohibit each and every member of that use group from locating within that district.

1.

Retail group. A use in the retail group is one in which the principal activity is the sale at retail of merchandise and which:

a.

Includes no incidental manufacturing or processing carried on in such a manner as to produce offensive noise, dust, odor, glare, heat or vibration perceptible or measurable from outside the building in which the use is located;

b.

The following uses are declared to be in the retail group:

(1)

Antique store.

(2)

Appliance, radio, television store.

(3)

Auto accessory store.

(4)

Book, magazine, newspaper store.

(5)

Butcher shop.

(6)

Camera store, art supply store.

(7)

Candy store.

(8)

Clothing, clothing accessories store.

(9)

Delicatessen.

(10)

Department store.

(11)

Drugstore.

(12)

Five-and-ten-cent store.

(13)

Flower shop.

(14)

Furniture, office equipment store.

(15)

Gift shop.

(16)

Grocery store.

(17)

Hardware store.

(18)

Hobby, toy store.

(19)

Ice cream parlor.

(20)

Jewelry store.

(21)

Music store.

(22)

Notion variety store.

(23)

Office supply, stationery store.

(24)

Package liquor store.

(25)

Photographic studio.

(26)

Shoe store.

(27)

Sporting goods store.

(28)

Bakery, in which a majority of goods are baked for retail sale on the premises.

2.

Service group. A use in the service group is one in which the principal activity is the serving of food for consumption on the premises, personal service, household or clothing service, or the repair of small equipment, and which:

a.

Operations that do not produce offensive noise, dust, odor, glare, heat or vibration perceptible or measurable from outside the building in which the use is located;

b.

The following uses are declared to be in the service group:

(1)

Barbershop.

(2)

Beauty shop.

(3)

Cold storage locker.

(4)

Dressmaker, tailor.

(5)

Dry cleaning pickup agency.

(6)

Furniture repair, upholstering.

(7)

Laundry pickup agency.

(8)

Laundry, self-service.

(9)

Milliner.

(10)

Radio, appliance repair.

(11)

Restaurant.

(12)

Shoe repair.

(13)

Soda fountain.

(14)

Watch, jewelry, camera repair.

(15)

Dry cleaning plants, complying with all provisions of the fire prevention code for a Class 4 system.

3.

Office-bank group. A use in the office-bank group is one in which the principal activity is the conduct of commercial, governmental, financial, professional or management activities. The following uses are declared to be in the office-bank group:

a.

Bank.

b.

General office.

c.

Governmental office.

d.

Insurance office.

e.

Personal loan agency.

f.

Professional office.

g.

Real estate office.

h.

Taxicab office.

i.

Telephone exchange.

j.

Utility office.

4.

Commercial-recreation group. A use in the commercial- recreation group is one in which the principal activity is the furnishing of recreation for a profit, and for which one or more of the following factors is present:

a.

Alcoholic beverages are offered for sale for consumption on the premises, but not including the incidental sale of alcoholic beverages at a private club;

b.

Fifty-one (51) percent or more of food and beverage sales comes from alcoholic beverages;

c.

The activity is not operated by a governmental agency;

d.

The following uses are declared to be in the commercial-recreation group:

(1)

Bowling alley.

(2)

Dance hall.

(3)

Pool or billiard parlor.

(4)

Private golf course/country club.

(5)

Roller skating rink.

(6)

Sports arena.

(7)

Tavern, saloon, bar.

(8)

Theater.

5.

Wholesale group. A use in the wholesale group is one in which the principal activity is the sale of merchandise to individuals and corporations for resale to the public, and for which:

a.

The merchandise offered for sale is stored wholly within a completely enclosed building;

b.

No unusual fire or safety hazard is caused by the storage of the merchandise;

c.

No live animals are sold;

d.

No junk, wrecked automobiles, secondhand equipment or other salvaged materials or dead animals are stored or sold on the premises;

e.

The following uses are declared to be in the wholesale group:

(1)

Newspaper, magazine distributor.

(2)

Wholesale food and grocery sales.

(3)

Wholesale drug sales.

6.

Health-medical group. A use in the health-medical group is one in which the principal activity is related to the care and medical treatment of human beings. The following uses are declared to be in the health-medical group:

a.

Hospital for human beings.

b.

Medical clinic.

c.

Nursing, convalescent home.

d.

Assisted living for elderly. Each developer, or owner, of proposed housing for the elderly shall:

(1)

Make application to the Building Inspector for a building permit and submit an architectural drawing showing building design, height, apartment and room size, open spaces, areas for recreation, off-street parking layout and other data as may reasonably be required.

(2)

Have in the proposed plan a provision for off-street parking spaces in an amount equal to one (1) for every two (2) living units designed for elderly occupancy.

e.

Orphans' home.

f.

Sanitarium.

7.

Education group. A use in the education group is one in which the principal activity is the education of children or adults by a public or private nonprofit agency. The following uses are declared to be in the education group:

a.

College or junior college.

b.

Grade school.

c.

High school or junior high school.

d.

Kindergarten.

e.

Private or parochial school offering a curriculum substantially equivalent to that offered by public schools.

f.

Student or faculty dormitory on college campus.

g.

Stadium, gymnasium, field house, as an accessory building on same lot as principal building.

h.

Power or heating plant as accessory building and use on same lot as principal building.

i.

Testing and learning center offering computer-based testing facilities for various educational, professional and other exams.

8.

Public recreation group. A use in the public recreation group is one in which the principal activity is public recreation and which is carried on by a governmental agency. The following uses are declared to be in the public recreation group:

a.

Community center.

b.

Golf course, municipal.

c.

Museum, public.

d.

Park, public.

e.

Playground, public.

f.

Swimming pool, municipal.

g.

Ice arena.

9.

General farming group. A use in the general farming group is one which is customarily carried on in nonurban areas. It is the intent of this title to permit as an integral part of any particular use in the general farming group all customary accessory buildings for keeping cattle and horses and for the storage of feed and farm crops. The following uses are declared to be in the general farming group:

a.

Field crop farming.

b.

Greenhouse, commercial.

c.

Cattle raising, except feedlot operation.

d.

Riding stable.

e.

Roadside stand for sale of products grown premises.

f.

Chicken house

10.

Truck farming group. The use in the truck farming group is an agricultural use normally found in suburban or rural areas, but on which poultry and livestock rearing is prohibited. The following uses are declared to be in the truck farming group:

a.

Field crop farming.

b.

Flower growing, commercial.

c.

Fruit growing.

d.

Tree, shrub, plant nursery.

e.

Truck gardening.

11.

Light industrial group. A use in the light industrial group is one involving manufacturing or the storage and sale of heavy building materials or equipment and which conforms to the following requirements:

a.

There is no unusual fire, explosion or safety hazard;

b.

There is no production of noise at any boundary of this district in which such use is located in excess of the average intensity of street and traffic noise at that point;

c.

There is no emission of smoke in excess of any density described as No. 1 as measured by a standard Ringelmann Chart as prepared by the United States Bureau of Mines; provided, however, that smoke of a density not in excess of No. 2 on a Ringelmann Chart will be permitted for a period not in excess of four (4) minutes in any 30-minute period;

d.

There is no emission of dust, dirt or toxic or offensive odors or gas;

e.

There is no production of heat or glare perceptible from any lot line of the premises on which the use is located;

f.

The following uses are declared to be in the light industrial group; provided, however, that if any of the following uses, being established subsequent to the adoption of this title, is operated or changed so that said use does not comply with the standards for a light industrial group use and said use as operated or changed would not be permitted as a new use in the district in which it is located, then such use shall be declared in violation of this title:

(1)

Manufacture, compounding, processing, packaging, treatment or assembly of the following materials and products, but excluding the use in any operation of a punch press over twenty (20) tons rated capacity, a drop hammer, or an automatic screw machine:

(a)

Bakery goods, candy, cosmetics, dairy products, drugs, perfumes, pharmaceuticals, and food products except fish and meat products, sauerkraut vinegar, yeast and the rendering or refining of fats and oils.

(b)

Products from the previously prepared materials: Bone, cellophane, canvas, cloth, cork, feathers, felt, fiber, precious metals or stones, fur, glass, hair, horn, leather, paper, plastics, shell, textiles, wood and yarns.

(c)

Pottery and other ceramic products using only previously pulverized clay, and kilns fired only by electricity or gas.

(d)

Electric and neon signs, outdoor advertising signs, commercial advertising structures, and light sheet metal products, including heating and ventilating ducts and equipment, cornices, eaves, and similar products.

(e)

Musical instruments, toys, novelties and rubber and metal stamps.

(f)

Blacksmith shop and machine shop.

(g)

Laundry, cleaning and dyeing works, and carpet and rug cleaning.

(h)

Ice manufacturing, soft drink bottling plant.

(i)

Assembly of electric appliances, electronic instruments and devices, radios, phonographs and television sets, including the manufacture of small parts only, such as coils, condensers, transformers, crystal holders and similar products.

(2)

The following uses when conducted wholly within a completely enclosed building, or within an area enclosed on all sides with a solid wall, compact hedge or uniformly painted board fence, not less than six (6) feet in height:

(a)

Building material sales yard, including the sale of rock, sand, gravel and the like as an incidental part of the principal use.

(b)

Contractor's equipment, storage yard or plant, or rental of equipment commonly used by contractors.

(c)

Retail lumberyard, including only incidental millwork.

(d)

Sale and storage of pipe material excluding oil and gas well drilling equipment.

(3)

Storage building and warehouses.

(4)

Experimental laboratories.

12.

Heavy industrial group. A use in the heavy industrial group is one involving intense manufacturing or the storage and sale of heavy building materials or equipment and which conforms to the following requirements:

a.

There is no unusual fire, explosion or safety hazard;

b.

There is no production of noise at any boundary of this district in which such use is located in excess of the average intensity of street and traffic noise at that point;

c.

There is no emission of smoke in excess of any density described as No. 1 as measured by a standard Ringelmann Chart as prepared by the United States Bureau of Mines; provided, however, that smoke of a density not in excess of No. 2 on a Ringelmann Chart will be permitted for a period not in excess of four (4) minutes in any 30-minute period;

d.

There is no emission of toxic or offensive odors or gas;

e.

There is no production of heat or glare perceptible from any lot line of the premises on which the use is located;

f.

The following uses are declared to be in the heavy industrial group; provided, however, that if any of the following uses, being established subsequent to the adoption of this title, is operated or changed so that said use does not comply with the standards for a heavy industrial group use and said use as operated or changed would not be permitted as a new use in the district in which it is located, then such use shall be declared in violation of this title.

(1)

The following uses will need to comply with the buffer yard standards set forth in Section 9-03-13, Landscaping and Screening:

(a)

Feed and fuel yard.

(b)

Gravel, sand, limestone or similar production pit.

(c)

Public utility service yard, or electrical receiving or transforming station.

(d)

Storage, sale or rental of oil and gas well drilling equipment.

(e)

Salvage yard.

(f)

Manufacture, compounding, processing, refining or treatment of the following materials and products:

i.

Asphalt and bituminous products.

ii.

Brick, tile or terra-cotta.

iii.

Concrete products and mixing including cement, lime, gypsum or plaster of paris.

iv.

Electric generating plant.

v.

Fertilizer manufacturing.

vi.

Gas manufacture or utility regulating stations.

(2)

Any use in the light industrial group may be permitted in the heavy industrial group.

13.

Utility service group. A use in the utility service group is one necessary for the safe or efficient operation of a gas, water, communication or electric utility or sewerage system for the benefit of the public, and is one for which the following factors are present:

a.

The structure or use is necessary for the safe or efficient operation of the utility;

b.

The utility which the structure or use serves is one available to the general public;

c.

The design and location of the premises and structures are in full compliance with all requirements of this section and of this title;

d.

The use is located on a lot no smaller in area than the minimum area specified in the district in which it is located for any principal use;

e.

The use complies with all height and yard regulations for the district in which it is located;

f.

Wherever the lot on which the use is located adjoins a lot in a residential district, there is planted and maintained a landscaped screened planting strip no less than five (5) feet in width adjacent to all lot boundaries so adjoining a lot in a residential district;

g.

Proper fencing with lot entrances shall be erected at least six (6) feet high and maintained around all installations and structures in which there is any safety hazard whatsoever for children, provided that all structures shall be so located that such safety fence shall be so placed as not to encroach on any front yard required in the district in which the use is located or shall comply with landscaping and screening standards in Section 9-03-13, whichever requirement is greater;

h.

For the proper operation of the utility, it is necessary that the proposed use be located on, or within a short distance of, the site on which it is proposed to be located;

i.

The following uses are declared to be in the utility service group:

(1)

Electric transformer station, but not a steam generating plant.

(2)

Electric transmission line.

(3)

Sewage pumping station.

(4)

Water pumping station.

(5)

Water reservoir.

(6)

Radio, television transmitting station.

(7)

Buildings, structures, radio towers and related facilities for communication purposes.

14.

Home protection group. Fallout shelters and safe rooms are permitted as principal or accessory uses and structures in any district, subject to yard and lot coverage regulations of the district. Such shelters may contain or be contained in other structures or may be constructed separately, and in addition to shelter use may be used for any principal or accessory use permitted in the district, subject to the district regulations on such use, but shall not be used for principal or accessory uses, prohibited expressly or by implication in the district.

15.

Emergency response group. Fire and police stations are permitted as a principal use in any district as a necessity for the protection and safety of the public, subject to district requirements in which it is located, and the design of the structure shall be compatible with surrounding structures in the district.

16.

Adult entertainment group. Adult entertainment establishments include buildings and uses containing adult entertainment and adult entertainment material as described in Chapter 9-02, General Provisions and Definitions. Adult entertainment uses are permitted only in I-1 or I-2 industrial zones and will only be permitted if the use meets all of the locational requirements set forth below:

a.

Must be located a minimum of five hundred (500) feet from:

(1)

Another adult entertainment group.

b.

Must be located a minimum of one thousand (1,000) feet from:

(1)

Residential group.

(2)

Commercial group.

(3)

Commercial-recreation group.

(4)

Office-bank group.

(5)

Health-medical group.

c.

Must be located a minimum of five thousand (5,000) feet from:

(1)

Education group.

(2)

Public-recreation group.

In order to carry out the purposes of this title, the City Council finds it necessary to require that certain uses, because of unusual size, safety hazards, infrequent occurrence, effect on surrounding area, or other reasons, be reviewed by the Board of Adjustment prior to the granting of a building permit or certificate of occupancy therefore; and that the Board of Adjustment be and is hereby given limited discretionary powers relating to the granting of such permit or certificate.

1.

General provisions.

a.

The uses listed in this section are designated as special uses, and no building permit or certificate of occupancy shall be issued by the Building Inspector until the application for such permit or certificate has been reviewed and authorized by the Board of Adjustment.

b.

The Board of Adjustment shall not authorize the issuance of a building permit or certificate of occupancy until the applicant therefor has appeared at a public hearing on such application, notice of the time and place of which hearing has been given in the official newspaper of the City at least ten (10) business days prior to the date of such hearing.

c.

Before approving the issuance of a building permit or certificate of occupancy for a special use, the Board of Adjustment shall find each of the following:

(1)

The proposed use is in harmony with the purpose and intent of this title and with the comprehensive plan of the City for the district.

(2)

The proposed use will not adversely affect the health, safety and welfare of the public and the workers and residents in the area, and will not be detrimental to the use of development of adjacent properties or of the general neighborhood.

(3)

The proposed use will comply with all appropriate regulations for the district in which it will be located.

(4)

The proposed use will comply with all special regulations established by this section, and all special conditions necessary for the safety and welfare of the public.

d.

The Board of Adjustment is authorized to impose any conditions on the grant of a building permit or certificate of occupancy for a special use it deems necessary for the protection of the neighborhood and the general welfare of the public.

e.

The Board of Adjustment shall not authorize the location of a special use in any district from which it is prohibited.

f.

The Board of Adjustment shall refuse to authorize the issuance of a building permit or certificate of occupancy for any special use if the board finds that such special use would fail to comply with any of the requirements of this title or this section.

g.

The Board of Adjustment shall require the applicant for authorization of a special use to furnish any engineering drawings or specifications, site plans, operating plans or any other data the board finds necessary to appraise the need for or effect of such special use.

2.

Cemetery. A cemetery, mausoleum or columbarium may be permitted in an A or P district as a special use, provided:

a.

No graves shall be located less than one hundred (100) feet distant from any property line.

b.

In any cemetery in which there will be permitted monuments and grave markers rising above the surface of the grounds, there shall be a strip at least seventy-five (75) feet in width adjacent to all boundaries of the cemetery landscaped and maintained as a green area; and that as a portion of the landscaped area there shall be a dense evergreen hedge at least six (6) feet in height; and that such dense evergreen hedge shall be at least seventy (70) feet distant from any boundary of the cemetery.

c.

In any cemetery in which markers or monuments rise above the surface of the ground, and private tombs or mausoleums are prohibited, there shall be planted and maintained a landscaped strip at least seventy-five (75) feet in depth adjacent to all boundaries of the cemetery, but there need not be a dense evergreen hedge planted as part of the landscaping.

d.

No public mausoleum, columbarium or cemetery chapel shall be erected within two hundred (200) feet of any boundary of the lot or parcel on which it is located.

e.

The owners of any cemetery parcel which lies across any proposed major or secondary thoroughfare shown on the Master Street Plan of the City shall reserve and dedicate a right-of-way for such thoroughfare as defined in the subdivision regulations, or such greater minimum width as the City Engineer of the City shall determine necessary in fee simple to the City for highway purposes and those portions of said cemetery lying on either side of such dedicated thoroughfare shall be considered as separate cemeteries for the purpose of determining grave setbacks, landscaped strips, and building setbacks.

3.

Golf driving range, miniature golf course. A golf driving range or miniature golf course may be permitted in an A district as a special use, provided:

a.

The area within five hundred (500) feet of all boundaries of the lot is not developed in residences to a greater density than one (1) family per acre.

b.

Any floodlights used to illuminate the premises are so directed and shielded as not to be an annoyance to any developed residential property.

c.

The Board of Adjustment shall grant only a temporary certificate of occupancy for a period not to exceed one (1) year, which certificate may be renewed at the expiration of each temporary certificate of occupancy for an additional year, provided residential development adjoining the golf driving range or miniature golf course has not exceeded the required density and provided any other standards established by this title or special conditions imposed by the Board of Adjustment have been fully complied with.

4.

Temporary uses. The Board of Adjustment is authorized to grant certificates of occupancy for temporary uses as follows:

a.

For a carnival or circus in an A district for a period not to exceed twenty-one (21) days.

b.

For a religious meeting in a tent or other temporary structure in a district for a period not to exceed sixty (60) days.

c.

For the open lot sale of Christmas trees in a C-1, I-1, or A district for a period not to exceed forty-five (45) days.

d.

Contractor's offices and equipment sheds in any district for a period not to exceed two (2) years; provided further, that such temporary certificate may be renewed for additional periods of one (1) year.

5.

Service stations. A filling station may be permitted in C-1 or I-1 district as a special use provided:

a.

The minimum total area of the premises shall contain at least twenty-one thousand (21,000) square feet with minimum lot dimensions of one hundred forty (140) feet in width and length.

b.

Pump dispensers shall have a setback of at least fourteen (14) feet from the property line.

c.

The filling station building shall have a 50-foot setback from property lines adjacent to public streets.

d.

A filling station may front one (1) only major arterial or collector street and may also be adjacent to a secondary or minor street.

e.

Ingress and egress points shall be maintained at a minimum of sixty (60) feet from an intersecting street corner of a major arterial or collector street, and a minimum of forty (40) feet from the intersecting street corner on secondary or minor streets.

f.

All repair areas, grease and wash racks shall be maintained within the principal building.

g.

Rubbish bins and storage racks shall be maintained within a screened area only.

h.

Adequate off-street parking must be provided for all operator equipment and at least one (1) space for each two (2) employees and at least five (5) spaces for each service stall or bay on the premises.

i.

No storing or parking of wrecked or partially disassembled automobiles or trucks for periods of greater than ninety-six (96) hours shall be allowed.

6.

Hotel or motel. In addition to other provisions of this title, a hotel or motel may be located in a C-1 Commercial District as a special use, provided:

a.

The structure and its appurtenances shall comply with the provisions of a C-1 Commercial District including lot coverage, front and side yard requirements and height limitations.

b.

A swimming pool, tennis court or similar recreational activity may be established in conjunction with a hotel or motel provided no charge is made for its use and such facility conforms to all limitations of the requirements of a C-1 Commercial District.

c.

A hotel or motel in a C-1 Commercial District shall not be located within three hundred (300) feet of any adjacent residential district.

7.

Day care center. A day care center may be permitted with a special use permit in all zoning districts except I-1 and I-2 Industrial districts.

a.

Minimum lot size shall be a minimum of seven thousand (7,000) feet.

b.

Each building shall provide a minimum of thirty-five (35) square feet of interior play area per child.

c.

Each lot shall provide an outdoor play area with a minimum of seventy-five (75) square feet per child. The play area shall be fenced at least four (4) feet high and located in the rear yard of the premises and behind the building setback requirement when the building is located on a corner lot. A buffer zone of ten (10) feet shall be provided on play areas adjoining residential lots.

d.

The facility must have access to public water and sewer systems.

8.

Church. A church may be permitted in an R-5 Manufactured Home Residential district as a special use.

9.

Temporary real estate office. A temporary real estate office may be permitted in an R-5 Manufactured Home Residential district as a special use.

10.

Temporary work camp housing. A crew camp may be permitted in only an I-1 or I-2 (Industrial) district. The following regulations apply for all crew camp special use permits.

a.

Permit is valid for a maximum of five (5) years. A person may reapply for a permit for an additional two (2) years. An extension shall be at the sole discretion of the City Council.

b.

Urban services must be provided including water, wastewater, stormwater, solid waste and roads. All services must meet City of Lincoln minimum standards and will be reviewed by the City Engineer.

c.

Adequate parking for all crew camp residents shall be provided.

d.

Adequate fire suppression and access for emergency vehicles shall be provided.

e.

Adequate private security shall be provided.

f.

Buildings shall meet all design standards for the building code, fire code, subdivision code and zoning code.

g.

The site shall meet land use compatibility standards and follow the Master Street Plan including:

(1)

Crew camps shall meet the minimum distances from the following uses:

(a)

Must be located a minimum of five thousand (5,000) feet from:

i.

Adult entertainment group.

ii.

Education group.

ii.

Daycare center.

(2)

Must be located a minimum of one thousand (1,000) feet from:

(a)

Residential group.

(b)

Commercial group.

(c)

Commercial-recreation group.

(d)

Office-bank group.

(e)

Health-medical group.

(3)

Maximum lot size shall not exceed two (2) acres.

(4)

Road extensions and future roadway ROW shall be preserved and in no way impeded by crew camps.

(5)

Landscaping and buffer requirements shall follow the standards for the I-1 or I-2 district for which the camp is located.

h.

Preliminary and final site plans shall be submitted to the City Engineer for review and shall contain all the requirements for a typical site plan as identified in the code along with the following elements:

(1)

A description of the temporary housing units.

(2)

A description of how the units will be placed and anchored.

(3)

A statement that all roads will meet city standards.

(4)

A copy of plot plans, drawn to scale, showing the location of housing units, additional structures, setbacks, utilities, drainage, parking, ingress, egress, screens, buffers and fencing.

(5)

A copy of the floor plan for each temporary housing unit.

(6)

A copy of the facility's house rules and regulations.

(7)

A copy of the on-site security plan.

(8)

A copy of the on-site emergency management plan.

i.

Activities listed below are prohibited on the premises:

(1)

No animals are allowed.

(2)

No parking is allowed between units.

(3)

No alcohol is allowed.

(4)

Site is to be maintained free of garbage and junk.

j.

Prior to beginning any construction or occupancy, the applicant shall post with the City of Lincoln a valid reclamation bond in an amount to be determined by the City based on the estimate of the costs to return the property to its original condition, permanent improvements excluded including private utilities, following the termination of the special use permit.

k.

The City Council may further require any condition or restriction that is reasonable and necessary for the health, welfare and safety of existing residents.

11.

Shop Condos. Five (5) spaces or one (1) space for each two hundred fifty (250) square feet devoted to public sales, service, or office use, and one (1) space for each six hundred (600) square feet of storage area, whichever is greater. Sufficient space to park all company-owned or leased vehicles including passenger automobiles, trucks, tractors, trailers and similar company-owned motor vehicles must be provided in addition to the required off-street parking. These provisions shall apply on a per unit basis for multi-tenant or multi-owner buildings such as shop condos.

12.

Convenience stores and filling stations. Adequate off-street parking must be provided for all operator equipment, at least one (1) space for each two (2) employees and one (1) space for each two hundred fifty (250) square feet of gross floor area. Spaces designated for fueling vehicles shall count toward this total.

(Ord. No. 221, 5-9-2018)

1.

Intent. Within the districts established by this title or amendments that may later be adopted there exist items which were lawful before this title was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this title or future amendment:

a.

Lots;

b.

Structures;

c.

Uses of land and structures; and

d.

Characteristics of use.

It is the intent of this title to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this title that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Nonconforming uses are declared by this title to be incompatible with permitted uses in the districts involved. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of structure and land in combination shall not be extended or enlarged after passage of this title by attachment on a building or premises of additional signs intended to be seen from the premises, or by the addition of other uses, of a nature which would be prohibited generally in the district involved.

To avoid undue hardship, nothing in this title shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this title and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.

2.

Nonconforming lots of record. In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this title, not withstanding limitations imposed by other provisions of this title. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that yard dimensions and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the Board of Adjustment.

If two (2) or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this title, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this title, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this title, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this title.

3.

Nonconforming uses of land (or land with minor structures only). Where at the time of passage of this title lawful use of land exists which would not be permitted by the regulations imposed by this title, and where such use involves no individual structure with the replacement cost exceeding one thousand dollars ($1,000.00), the use may be continued as long as it remains otherwise lawful, provided:

a.

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this title;

b.

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this title;

c.

If any such nonconforming use of land ceases for any reason for a period of more than thirty (30) days, any subsequent use of such land shall conform to the regulations specified by this title for the district in which such land is located; and

d.

No additional structure not conforming to the requirements of this title shall be erected in connection with such nonconforming use of land.

4.

Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of this title that could not be built under the terms of this title by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decease its nonconformity.

b.

Should such nonconforming structure or nonconforming portion of structure be destroyed by any means to an extent of more than fifty (50) percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this title.

c.

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

5.

Nonconforming uses of structures or of structures and premises in combination. If lawful use involving individual structures with a replacement cost of one thousand dollars ($1,000.00) or more, or of structure and premises in combination, exists at the effective date of adoption or amendment of this title, that would not be allowed in this district under the terms of this title, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No existing structure devoted to a use not permitted by this title in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.

b.

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this title, but no such use shall be extended to occupy any land outside such building.

c.

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may as a special use be changed to another nonconforming use provided that the Board of Adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the Board of Adjustment may require appropriate conditions and safeguards in accord with the provisions of this title.

d.

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed.

e.

When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for six (6) consecutive months or for eighteen (18) months during any three-year period (except when government action impedes access to the premises), the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located.

f.

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the purpose of this paragraph is defined as damage to an extent of more than fifty (50) percent of the replacement cost at time of destruction.

6.

Repairs and maintenance. On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring, or plumbing, to an extent not exceeding ten (10) percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.

Nothing in this title shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

7.

Uses under special use provisions not nonconforming uses. Any use which is permitted as a special use in a district under the terms of this title (other than a change through Board of Adjustment action from a nonconforming use to another use not generally permitted in the district) shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

1.

Off-street parking. Except as provided elsewhere in this section, no application for a building permit or certificate of occupancy in any zoning district shall be approved unless there is included with the plan for such building improvement or use, a plot plan showing the required open space designated as being reserved for off-street parking purposes to be provided in connection with such building improvements or use in accordance with this section; and no certificate of occupancy shall be issued unless the required facilities have been provided. Each required parking space shall be of an area at least nine (9) feet wide and eighteen (18) feet long, in addition to the ingress and egress driveways required. All off-street parking spaces required shall have an all-weatherproof surface. The number of off-street parking spaces shall be provided on the basis of the following minimum requirements:

a.

Dwellings.

(1)

Single-family and two-family dwellings including row homes/townhomes: Two (2) spaces for each dwelling unit.

(2)

Multiple-family dwellings: One (1) space for each efficiency/studio unit, one and one-half (1½) spaces for each one (1) bedroom unit, two (2) spaces for each two-bedroom unit, and two and one-half (2½) spaces for each three- or more bedroom unit.

(3)

No required parking space shall be located in a front yard or side yard setback, with the exception of parking to be allowed in the front yard setback and side yard setback for single family or two-family dwellings.

b.

Hotels, including clubs. One (1) space for each one (1) guest room. If in addition to sleeping rooms, patrons or residents are provided with assembly halls, bars, restaurants, nightclubs, retail shops, service establishments or other businesses, additional off-street parking spaces will be required for such other uses in accordance with the regulations of this section.

c.

Tourist homes, motels. One (1) space for each guest room or cabin. Off-street parking for auxiliary uses in the same building or on the same lot shall be provided in accordance with the regulations set forth in this section for such uses. For tourist homes, in addition to off- street parking space for guests one (1) additional space for each family permanently residing in the building must be provided.

d.

Hospitals. One (1) space for each two (2) patient beds, plus one (1) additional space for each two (2) regular employees, including nurses.

e.

Animal hospital. One (1) space per six-hundred (600) square feet of gross floor area.

f.

Restaurants, including bars, taverns, nightclubs, lunch counters, diners and all other similar dining or drinking establishments. One (1) space for each one-hundred (100) square feet of gross floor area including patio space.

g.

Theaters. One (1) space for each one-hundred (100) square feet of gross floor area.

h.

Places of public assembly, including private clubs, lodges and fraternal buildings not providing overnight accommodations, assembly halls, exhibition halls, convention halls, auditoriums, skating rinks, dance halls, bowling alleys, sport arenas, stadiums, gymnasiums, amusement parks, racetracks, fairgrounds, circus grounds, churches, funeral homes and mortuaries, community centers, libraries, museums, and all other similar places of relatively infrequent public assembly.

i.

Medical clinics, including the offices of doctors, dentists and drugless physicians. One (1) space for each two-hundred (200) square feet of gross floor area.

j.

Retail establishment including personal service shops, equipment or repair shops:

(1)

In a C-1 Commercial District. One (1) space for each two hundred (200) square feet of floor area on the ground floor, plus one (1) space for each three hundred (300) square feet of floor area in a basement or any story above the ground floor. For furniture stores and wholesale stores, one (1) space per six hundred (600) square feet of gross floor area.

(2)

In a MU Mixed-Use District. One (1) space for each two hundred (200) square feet of gross floor area plus additional space for any residential uses in accordance with the requirements set forth in this section for such uses (section "a").

k.

Office building, including commercial, governmental and professional building, except as otherwise provided for in this section. One (1) space for each two hundred (200) square feet of floor area.

l.

Schools, including colleges, elementary schools, junior and senior high schools, including public, private and parochial schools. One (1) space for each one (1) staff member or employee, plus one (1) space for each five (5) students, plus additional space for any places of public assembly in accordance with the requirements set forth in this section for such uses (section "g").

m.

Day care centers. Adequate off-street parking shall be provided at the following ratio: One (1) space for each two (2) employees and one (1) space for each ten (10) children.

n.

Filling station. Five (5) spaces for each service stall or bay on the premises.

o.

Vehicle repair garage. Two (2) spaces per repair stall.

p.

Terminal facilities, railroad, passenger and freight stations, bus depots, truck terminals and all other similar personal or material terminal facilities: Off-street parking space in an amount determined by the Board of Adjustment to be adequate to serve the public as customers, patrons and visitors, plus one (1) off-street parking space for all owned, leased or operated commercial vehicles, buses and similar motor vehicles.

q.

Manufacturing and industrial plants, public utility buildings, contractor equipment yards, lumber yards, fabricating plants and all other structures devoted to similar industrial pursuits. One (1) space for each manufacturing employee on the largest shift, plus sufficient space to park all company-owned or leased vehicles including passenger automobiles, trucks, tractors, trailers and similar company-owned motor vehicles, plus one (1) space for each three hundred (300) square feet of office area.

r.

Senior citizen housing. One (1) space for every two (2) living units.

s.

Manufactured homes and mobile home parks. Off-street parking areas shall be provided in all manufactured home parks at a ratio of at least two (2) car spaces per mobile space. At least two (2) car spaces shall be provided on each manufactured home lot. The area per one (1) car space shall be at least nine (9) feet wide and eighteen (18) feet deep, plus ingress and egress.

t.

Wholesale, warehouse, cold storage facilities, storage facilities, lumber yards, equipment and material storage and lay down yards and all other similar facilities. One (1) parking space shall be provided for each six hundred (600) square feet of storage area. Off-street parking spaces for retail and office areas within such facilities shall be provided per the requirements of the applicable subsection of this Section 9-03-10. In no case shall the areas in front of overheard doors be considered or utilized to satisfy off-street parking requirements.

2.

Off-street loading. Except as provided elsewhere in this section, no application for a building permit or certificate of occupancy for a commercial or industrial use shall be approved unless there is included with the plan for such building improvement or use, a plot plan showing the required space or structural design for off-street loading purposes to be provided in connection with such building, improvement or use, in accordance with this section; and no certificate of occupancy shall be issued unless the required facilities have been provided in accordance with those shown on the approved plan. Such off-street loading space shall be provided in accordance with the following minimum requirements:

a.

Each department store, freight terminal or railroad yard, hospital or sanitarium, industrial plant, manufacturing establishment, retail establishment, storage warehouse or wholesale establishment which has an aggregate gross floor area of twenty-five thousand (25,000) square feet or more, arranged, intended or designated for such use, shall provide off-street truck loading or unloading berths in accordance with the following table:

b.

Each multifamily dwelling having ten (10) or more dwelling units shall provide one (1) off-street loading berth in accordance with the following table:

c.

Each auditorium, convention hall, exhibition hall, funeral home, hotel, office building, restaurant, sports arena, hospital or welfare institution which has an aggregate gross floor area of fifty thousand (50,000) square feet or more floor area used or intended to be used for service arranged, intended or designed for each use shall follow the loading and unloading berths in accordance with the following table.

d.

In computing the ground coverage of the principal building and all accessory buildings for any nonresidential use, two hundred (200) square feet shall be added to the actual area of the principal building and all accessory buildings to provide off-street parking as required by this section unless parking is provided onsite or within the building.

3.

Uses not specifically mentioned. For any use not specifically mentioned in this section, the requirements for off-street parking and off-street loading facilities for use which is so mentioned and to which said use is similar, shall apply. In such cases, either the Building Inspector or the applicant for the certificate of occupancy or building permit may apply to the Board of Adjustment for an interpretation of the provisions of this section for such off-street parking and off-street loading requirements and the Board of Adjustment shall render a decision in writing in the manner provided for in this title for such action.

4.

Continuing character of obligation. The schedule of requirements for off- street parking space and off-street loading space shall be a continuing obligation of the real estate owner on which any such structure is located as long as the structure is in existence and its use requiring vehicle parking or vehicle loading facilities continues. It shall be unlawful for an owner of any building affected by this section to discontinue, change or dispense with, or to cause the discontinuance or change of the required vehicle parking or loading space apart from the discontinuance sale or transfer of such structure, without establishing alternative vehicle parking or loading space which meets with the requirements of and is in compliance with this section. It shall be unlawful for any firm or corporation to use such building without acquiring such land or other suitable land for vehicle parking or loading space which meets with the requirements of and is in compliance with this section.

5.

Fractional measurements. When units or measurements determining number of required off-street parking and off-street loading spaces result in the requirements of a fractional space, any fraction up to and including one-fourth (¼) shall be disregarded, and fractions over one-fourth (¼) shall require one (1) off-street parking or off-street loading space.

6.

Location of required parking and loading facilities. The off-street parking facilities required by this section shall be on the same lot or parcel of land as the structure they are intended to serve; provided, however, when practical difficulties, as determined by the Board of Adjustment, prevent the establishment of such facilities upon the same lot or parcel, they shall be furnished within four hundred (400) feet of the premises to which they are appurtenant. The off-street loading facilities required by this section shall in all cases be on the same lot or parcel of land as the structure they are intended to serve. In no case shall the required off-street loading space be part of the area used to satisfy the off-street parking requirements of this article. All required off-street parking and loading facilities along with all ingress and egress driveways thereto shall be zoned adequately for the principal use which they are intended to serve. In no case shall the areas in front of overhead doors be considered or utilized to satisfy off-street parking requirements.

7.

Plan of required off-street parking or loading areas. For the purpose of converting parking or loading spaces into the required parking or loading area, plans must be submitted to the City Engineer to show how the required parking or loading space shall be arranged in the area supplied for that purpose and to indicate sufficient space for parking maneuvers, as well as adequate ingress and egress to the parking or loading area. For each parking space, not under roof, there shall be provided additional area for lanes, alleys, aisles and drives necessary for safe and adequate parking maneuvering. Off-street parking and off-street loading space shall be provided with methods of ingress and egress such that it will be unnecessary for trucks or tractor-trailer combinations to back into them from a street or out of them into a street. Off-street parking areas, including parking spaces and the aisles, drives and ingress and egress lanes which comprise the parking area, shall be bounded along the perimeter by standard curb and gutter, unless zoned property permits gravel surfacing. Off-street parking areas shall not be nearer than four (4) feet from the property line as measured from the top back of the standard curb section to the property line.

8.

Maintenance of public off-street parking places provided. All off-street parking facilities for the use of the public required pursuant to the provisions of this section shall be paved, unless gravel surfacing is permitted, drained, lighted and periodically maintained by the owner in accordance with specifications of the City Engineer, and such facilities shall be arranged for convenient access and safety of pedestrians and vehicles. No open area in an off-street parking area shall be encroached upon by buildings, storage or any other use; nor shall the number of parking spaces be reduced except upon the approval of the Board of Adjustment and then only after proof that, by reason of diminution of floor space, seating capacity, number of employees, or change in other factors controlling the regulation of the number of parking spaces, the proposed reduction is reasonable and consistent with the intent of this section.

9.

Collective action relative to off-street parking and loading. Nothing in this title shall be construed to prevent the joint use of off-street parking or off-street loading space for two (2) or more buildings or uses, if approved by the City Engineer to ensure adequate parking exists for each separate use.

10.

Nonconforming uses. In the case of nonconforming uses where major repairs, substantial alterations or extensions are made, no such major repairs, substantial alterations or extensions shall be permitted unless and until the off-street parking and off-street loading facility space requirements of this section, so far as they apply to the use to which such building is devoted, shall be fully provided for.

11.

Vacant lots. Vacant lots may be used for temporary off-street parking purposes if they meet the following criteria:

a.

Surfacing. Lot shall be surfaced and said surfacing shall be approved by the City Engineer.

b.

Access. Lot shall have separate ingress and egress driveways and said driveways shall be approved by the City Engineer.

c.

Minimum size. Lot shall be of sufficient size to contain a minimum ten (10) automobiles, with each parking space at least nine (9) feet wide and twenty (20) feet long, in addition to the ingress and egress driveways required.

(Ord. No. 241, 7-30-2020)

In all zoning districts, the following regulations shall apply:

1.

Before any developer or other firm, person or agency changes or alters the contour of any land proposed to be subdivided, developed, or changed in use by grading, excavating or the removal of the natural topsoil, trees, or other vegetative covering thereon for the purpose of development, construction or other purposes, he or his agent shall submit to the City Engineer a plan to control erosion and sedimentation which can be expected to occur if appropriate precautions are not taken to arrest such waste and soil depletion. No such grading, excavating or removal of trees and related vegetation shall be undertaken until and after a permit for such work shall have been issued by the City Engineer, or his designated assistant.

2.

The City Engineer, or his designated assistant, shall review the erosion control plans as submitted, make suggestions and changes necessary to reasonably control soil erosion, and shall take the necessary steps to ensure compliance by the developer or other responsible person with the erosion control plans as finally approved. Erosion and sedimentation control shall be exercised throughout the time of excavation, landfill and/or construction. No such work shall be finally approved until after appropriate seeding, sodding, plantings, mulching or other appropriate erosion control measures have been taken. Approval of plans by the City Engineer shall in no way make the City liable.

3.

The City Engineer is hereby granted authority to require the posting of a performance bond by any such persons who desire to change the contour of the land. Such bond shall be in the amount he reasonably expects the cost would be to the City to enter upon the property for the purpose of taking corrective action where such developer or other person has failed to satisfactorily control either erosion or sedimentation.

4.

The following control measures shall be observed during development of property or when changing the contour of the land:

a.

The smallest practical area of land will be exposed at any time during development.

b.

When land is exposed during development, the exposure will be kept to the shortest practical period of time.

c.

Where necessary, temporary vegetation and/or mulching will be used to protect areas exposed during development.

d.

Sediment basins will be installed and maintained to remove sediment from run-off waters from land undergoing development or substantial change of grade.

e.

Provisions are to be made to effectively accommodate the increased run-off caused by changes in soil and surface conditions during and after development.

f.

Permanent final vegetation and structural development are to be installed as soon as practical in the development.

g.

The development plan is to be adapted to the topography and soils so as to create the least erosion potential.

h.

Wherever feasible, trees, shrubs and natural vegetation are to be retained and protected to control erosion.

1.

Statutory authorization and findings of fact.

a.

The Legislative Assembly of the State has in N.D.C.C. Chapter 40-47 delegated authority to cities to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry.

b.

Findings of fact.

(1)

The flood hazard areas of the City are subject to periodic inundation which can endanger life, result in loss of property, create health and safety hazards, disrupt commerce and governmental services, cause extraordinary public expenditures for flood protection and relief, and impair the tax base, all of which adversely affect the public health, safety and general welfare.

(2)

Flood losses caused by the cumulative effect of obstructions in the special flood hazard areas cause increases in flood heights or velocities, and inadequately floodproofed, elevated or otherwise unprotected structures also contribute to the flood loss.

2.

Statement of purpose. It is the purpose of this section to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed:

a.

To protect human life, health and property;

b.

To minimize expenditure of public money for costly flood control projects;

c.

To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

d.

To minimize prolonged business interruptions;

e.

To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges located in special flood hazard areas;

f.

To help maintain a stable tax base by providing for the second use and development of special flood hazard areas so as to minimize future flood blight areas;

g.

To ensure that potential buyers are notified that property is in a special flood hazard area; and

h.

To ensure that those who occupy the special flood hazard area assume responsibility for their actions.

3.

Methods of reducing flood losses. In order to accomplish its purposes, this section includes methods and provisions for:

a.

Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;

b.

Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

c.

Controlling the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters;

d.

Controlling filling, grading, dredging, and other development which may increase flood damage; and

e.

Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas.

4.

Definitions. Unless specifically defined below, words or phrases used in this section shall be interpreted so as to give them the meaning they have in common usage and to give this section its most reasonable application. For purposes of this section, the following words and terms used herein are defined as follows:

Appeal means a request for a review of the Building Inspector's interpretation of any provision of this section or a request for a variance.

Base flood or 100-year flood means the flood having a one (1) percent chance of being equaled or exceeded in any given year.

Base flood elevation or BFE means the height of the base flood or 100-year flood usually in feet above mean sea level.

Basement means any area of the building having its floor subgrade (below ground level) on all sides.

Best available data or BAD means water elevation information from any source used to estimate or determine a base flood elevation (i.e., high water mark).

Conveyance or hydraulic conveyance means a geometric characteristic of a river or watercourse at a given point that determines the flow-carrying capacity at that point.

Development means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations located within the special flood hazard area.

Flood or flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from:

a.

The overflow of inland or tidal water, and /or

b.

The unusual and rapid accumulation or runoff of surface waters from any source.

Flood Insurance Rate Map or FIRM means the official map issued by the Federal Emergency Management Agency where special flood hazard areas are designated as Zone A, AE, AO, AH, A1-A30 or A-99.

Flood Insurance Study or FIS means the official report provided by the Federal Emergency Management Agency that includes flood profiles, the Flood Insurance Rate Map, and the water surface elevation of the base flood.

Floodproofing or dry floodproofing means protecting a structure, together with attendant utilities and sanitary facilities, which is watertight two (2) feet above the base flood elevation with walls that are substantially impermeable to the passage of water.

Floodway or regulatory floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot.

Lowest floor means the lowest floor of a structure including the basement.

Mobile home means a structure that is transportable in one or more sections, built on a permanent chassis, and designed for use with or without a permanent foundation when connected to the required utilities. The term "mobile home" does not include a "recreational vehicle."

Mobile home park or subdivision means a parcel (or contiguous parcels) of land divided into two (2) or more mobile home lots for rent or sale.

New construction means structures for which the "start of construction" commenced on or after the date of adoption of this section.

Reasonably safe from flooding means base flood waters will not inundate the land or damage structures to be removed from the special flood hazard area, and that any subsurface waters related to the base flood will not damage existing or proposed buildings.

Recreational vehicle means a vehicle which is:

a.

Built on a single chassis;

b.

Four hundred (400) square feet or less when measured at the largest horizontal projection;

c.

Designed to be self-propelled or permanently towable by a light duty truck;

d.

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational camping, travel, or seasonal use; including, but not limited to;

e.

Travel trailers, trailers on wheels, park-model trailers, and other similar vehicles.

Special flood hazard area or SFHA means an area of land that would be inundated by a flood having a one (1) percent chance of being equaled or exceeded in any given year.

Start of construction includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within one hundred eighty (180) days of the permit date. The actual start means the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footing, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory building, such as garages or sheds not occupied as dwelling units or not part of the main structure.

Structure means a walled and roofed building, including manufactured homes and gas or liquid above-ground storage tanks.

Substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the building to its pre-damaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.

Substantial improvement means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the market value of the structure either:

a.

Before the improvement or repair is started; or

b.

If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

The term does not, however, include:

a.

Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or

b.

Any alteration of a structure listed on the National Register of Historic Places or on a State Inventory of Historic Places.

Variance means a grant of relief from the requirements of this section which permits construction in a manner that would otherwise be prohibited by this section.

Violation means a failure of a structure or other development to be fully compliant with this section.

5.

Lands to which this section applies. This section shall apply to all special flood hazard areas within the zoning jurisdiction of the City.

6.

Basis for establishing the special flood hazard areas. The special flood hazard areas identified by the Federal Emergency Management Agency in a scientific and engineering report entitled "The Flood Insurance Study, Burleigh County, North Dakota and Incorporated Areas", dated June 6, 2024 with accompanying Flood Insurance Rate Map (FIRM) dated June 6, 2024 is hereby adopted by reference and declared to be part of this section. Panels 38015C0815E, 38015C0820E, and 38015C0958D shows the flood hazards within the jurisdiction of the City. The Flood Insurance Study is on file in the office of the City Auditor.

7.

Compliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this section and other applicable regulations.

8.

Greater restrictions. This section is not intended to repeal, remedy, or impair any existing easements, covenants, or deed restrictions. However, where this section and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

9.

Interpretation. In the interpretation and application of this section, all provisions shall be:

a.

Considered as minimum requirement;

b.

Liberally construed in favor of the governing body; and

c.

Deemed neither to limit nor repeal any other powers granted under state statutes.

10.

Warning and disclaimer of liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This section does not imply that land outside the special flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the City, any officer or employee thereof, or the Federal Emergency Management Agency, for any flood damages that result from reliance on this section or any administrative decision lawfully made thereunder.

11.

Establishment of development permit. A development permit shall be obtained before construction or development begins within any special flood hazard area established in subsection 6. Application for a development permit shall be made on forms furnished by the City and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimension, and elevations of the area in question; existing or proposed structures, fill, storage materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required:

a.

Elevation in relation to mean sea level, of the lowest floor of all structures;

b.

Elevation in relation to mean sea level to which any structure has been floodproofed;

c.

Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in subsection 15.b.; and

d.

Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.

12.

Designation of the floodplain administrator. The Building Official is hereby appointed to administer and implement this section by granting or denying development permit applications in accordance with its provisions.

13.

Duties and responsibilities of the Building Official. Duties of the Building Official shall include, but not be limited to:

a.

The Building Official shall perform permit review, including the following:

(1)

Review all development permits to determine that the permit requirements of this section have been satisfied;

(2)

Review all development permits to determine that all necessary permits have been obtained from those federal, state, or local governmental agencies from which prior approval is required; and

(3)

Review all development permits to determine if the proposed development is located in the floodway and if located in the floodway, assure that the encroachment provisions of subsection 16 are met.

b.

When base flood elevation data has not been provided in accordance with subsection 6, the Building Official shall obtain, review, and reasonably utilize any base flood elevation data and floodway data available (known as best available data) from a federal, state, or other source, as criteria for requiring that new construction, substantial improvements, or other development in the floodplain are administered in accordance with subsection 15.

c.

The Building Official shall obtain and maintain information as follows:

(1)

Obtain and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement;

(2)

For all new or substantially improved flood proofed structures:

(a)

Obtain and record the actual elevation (in relation to mean sea level) to which the structure has been flood proofed; and

(b)

Maintain the flood proofing certifications required in paragraph c of subsection 11; and

(3)

Maintain for public inspection all records pertaining to the provisions of this section.

d.

The Building Official shall make interpretation where needed, as to the exact location of the boundaries of the special flood hazard areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in subsection 17.

14.

General standards. In all special flood hazard areas, the following standards are required:

a.

All new construction and substantial improvements, including additions, shall be anchored to prevent flotation, collapse or lateral movements of the structure.

b.

All mobile homes must be elevated and anchored to resist flotation, collapse or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors.

This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.

c.

All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

d.

All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

e.

All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

f.

All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

g.

New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters.

h.

On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

i.

All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

j.

All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

k.

All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage.

l.

Base flood elevation data shall be provided for subdivision proposals and other proposed development which contain at least fifty (50) lots or five (5) acres whichever is less.

15.

Specific standards. In all special flood hazard areas where base flood elevation data have been provided as set forth in subsection 6, regarding the basis for establishing the special flood hazard areas, or in paragraph b of subsection 13, regarding use of other base flood data, the following provisions are required:

a.

New construction and substantial improvement of any residential and nonresidential structure shall either have the lowest floor, including basement, elevated on fill to at least two (2) feet above the base flood elevation or, together with attendant utility and sanitary facilities, shall:

(1)

Be flood proofed to at least two (2) feet above the base flood elevation, so that below this elevation the structure is watertight with walls substantially impermeable to the passage of water;

(2)

Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

(3)

Be certified by a registered professional engineer or architect that the standards of this paragraph are satisfied and such certification shall be provided to the Building Inspector as set forth in paragraph c.(2) of subsection 13.

b.

Mobile homes shall be anchored in accordance with paragraph b of subsection 14.

c.

All mobile homes or those to be substantially improved shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated on fill to at least one (1) foot above the base flood elevation, and is securely anchored to an adequately anchored foundation system.

16.

Floodways. Located within the special flood hazard areas established in subsection 6 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of food waters which carry debris potential projectiles, and erosion potential, the following provisions apply:

a.

Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

b.

If above paragraph a is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard provisions of subsections 14 and 15.

17.

Variance procedure.

a.

Board of Adjustment.

(1)

The Board of Adjustment as established by Chapter 9-06 shall hear and decide appeals and requests for variances from the requirements of this section.

(2)

The Board of Adjustment shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Building Inspector in the enforcement or administration of this section.

(3)

Those aggrieved by the decision of the Board of Adjustment may appeal such decision to the City Council and the District Court as provided by Section 9-06-03 and N.D.C.C. Section 40-47-11.

(4)

In passing upon such applications, the Board of Adjustment shall consider all technical evaluations, all relevant factors, standards specified in other provisions of this section, and:

(a)

The danger that materials may be swept onto other lands to the injury of others;

(b)

The danger to life and property due to flooding or erosion damage;

(c)

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(d)

The importance of the services provided by the proposed facility to the community;

(e)

The necessity to the facility of a waterfront location, where applicable;

(f)

The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(g)

The compatibility of the proposed use with existing and anticipated development;

(h)

The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(i)

The safety of access to the property in times of flood for ordinary and emergency vehicles;

(j)

The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

(k)

The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

(5)

Generally, variances may be granted for new construction and substantial improvements to be erected on a lot of one-half (½) acre to less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items (a) through (k) in above subparagraph (4) have been fully considered. As the lot size increases beyond the one-half (½) acre, the technical justification required for granting the variance increases.

(6)

Upon consideration of the factors of above subparagraph (4) and the purposes of this section, the Board of Adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes of this section.

(7)

The Building Inspector shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency upon request.

b.

Conditions for variances.

(1)

Variances may be granted for the reconstruction, rehabilitation, or restoration of structures listed on the national Register of Historic Places or the State Inventory of Historic Place, without regard to the procedures set forth in the remainder of this section.

(2)

Variances shall not be granted within the identified floodplain if any increase in flood levels during the base flood discharge would result.

(3)

Variances shall only be granted upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(4)

Variances shall only be granted upon:

(a)

A showing of good and sufficient cause;

(b)

A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(c)

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, cause fraud on or victimization of the public as identified in subparagraph (4) of paragraph a above, or conflict with existing local laws or ordinances.

(5)

Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

18.

Penalties for violations.

a.

Violation of the provisions of this section or failure to comply with any of its requirements, including violations of conditions and safeguards established in connection with grants or variances or conditional uses, shall be punishable as an offense. Each day such violation continues shall be considered a separate offense.

b.

Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation.

(Ord. No. 2024-03, 4-24-2024)

1.

Purpose. The purpose of these regulations are to maintain the City's quality and character by enhancing its visual appearance through the use of landscaping; enhance environmental conditions by providing shade, air purification, reduction of stormwater run-off, and filtering of noise and light; promote neighborhood character, traffic calming, wildlife habitat, pedestrian amenity and aesthetic value, screen offstreet parking areas and exterior storage areas from view of persons on public streets and adjoining properties and mitigate off-site headlight projection; provide buffer areas between land uses of differing intensity; and encourage the planting of trees and other plant materials throughout the community that are native or generally suitable for this area.

2.

Applicability. The landscaping requirements contained herein shall apply to any of the following:

a.

The construction of any principal commercial, industrial, institutional, or multifamily building(s) with three (3) or more units or an accessory building for any of the above uses;

b.

The installation of any parking area or the expansion of any existing parking area by five (5) or more required off-street parking spaces;

c.

A change in the use of the property that requires rezoning to a more intensive zoning classification or a special use permit; and

d.

The reconstruction of a portion of an existing off-street parking lot equal to or greater than twenty (20) percent at one time or forty (40) percent over a five (5) year period, regardless of whether or not required parking spaces are added, and provided the required plant materials do not reduce the number of off-street parking spaces below what is required. Reconstruction includes any land disturbance activity or exposure of any subgrade or soil material. Regular maintenance, minor repairs, patch work or a partial mill and overlay would not constitute reconstruction. Only those portions of the off-street parking areas being reconstructed would be subject to these requirements. Consideration may be given by the City on a case-by-case basis to modify the requirements for the reconstructed off-street parking areas.

3.

General requirements. All exposed ground areas, including areas not devoted to off-street parking, drives, sidewalks or other such improvements shall be landscaped with grass, vegetative ground cover, shrubs, trees or other ornamental landscape materials in conjunction with site development. All landscaped areas shall be kept neat, clean and uncluttered. No required landscaped area shall be used for parking of vehicles or for the storage or display of materials, supplies or merchandise. Boulevard areas shall be subject to the requirements of Sections 08-02-08 and 08-02-04 (placing materials on public property).

4.

Landscaping plan required. A landscape plan shall be required for all development subject to the provisions of this subsection. All landscape plans submitted for approval shall contain, at a minimum, the following information:

a.

North point and scale;

b.

The boundary lines of the property with dimensions and area;

c.

The location of all driveways, parking areas, sidewalks, structures, utilities, or other features, existing or proposed, affecting the landscaping of the site;

d.

The location, common name, scientific name to the species level, size and quantity of all existing trees, shrubs or other vegetation intended for use in meeting the requirements of this subsection;

e.

The location, common name, scientific name to the species level, size and quantity of all proposed landscape materials;

f.

The location and height of any proposed earthen berms, masonry fences or other features used to meet the landscaping or buffer yard requirements;

g.

The location of any existing and/or proposed easements; and

h.

The square footage of each interior parking lot landscaping area and the overall square footage of all interior parking lot landscaping areas shown.

5.

Landscape design considerations. Landscape design should serve to provide visually interesting open space, reduce the potential negative impact of development on adjacent land uses, and complement the scale of the development and its surroundings. The following items are to be considered in developing a landscape plan for submittal to the City:

a.

Landscape materials and structural items placed within the sight triangle of a corner lot, as defined in Section 9-03-03.4, shall not have a height of more than three (3) feet above the curb level during all stages of plant growth. Deciduous trees may be planted within the sight triangle provided they are not an obstruction to vision between three (3) feet and ten (10) feet above the curb level;

b.

Landscape materials and structural items at driveway entrances shall be placed so that visibility for vehicles entering or exiting a parking lot is not obstructed;

c.

Trees or shrubs shall not be planted under utility lines when their ultimate height may interfere with the lowest lines;

d.

Landscaped areas shall be of adequate size to promote proper plant growth and to protect plantings from pedestrian traffic, vehicle traffic, and other types of concentrated activity;

e.

Landscaped areas and plantings shall be located in a manner to allow adequate room for proper maintenance;

f.

A variety of tree and shrub species shall be utilized to provide year around visual interest. Except for continuous hedges and street trees, not more than fifty (50) percent of the required number of trees or shrubs may be comprised of any one (1) species. In addition, not more than fifty (50) percent of the shrubs and perennials within any planting bed larger than five hundred (500) square feet in area may be comprised of any one (1) genus;

g.

Final slopes greater than a 3:1 ratio, including slopes on earthen berms, will not be permitted without special approval or treatment, such as special seed mixtures or reforestation, terracing or retaining walls; and

6.

Landscape materials standards.

a.

Plant quality. Plants installed to satisfy the requirements of this subsection must meet or exceed the plant quality standards of the most recent edition of American Standards for Nursery Stock, published by the American Association of Nurserymen, be nursery grown and adapted to the local area.

b.

Artificial plants. No artificial plants or vegetation may be used to meet any standard of this section.

c.

Sizes.

d.

Existing plant material. Existing, healthy plant material may be utilized to satisfy landscaping requirements, provided it meets the minimum sizes specified above.

e.

Ground cover. Vegetative ground cover shall be of a size and spacing to provide a minimum of fifty (50) percent coverage during the first full growing season and complete coverage upon maturity. Only pervious weed barriers shall be allowed. Mulch may not be used in lieu of vegetative ground cover, except in those situations where mulch is necessary to promote healthy tree and shrub growth.

Where mulch is used, an adequate vertical barrier must be included around the perimeter of the mulch area to prevent mulch from washing into the public right-of-way or on to adjacent properties.

f.

Soil in landscaped areas. Soil in landscaped areas shall consist of loose, friable, loamy topsoil that is free of excess acid and alkali. It shall be free from objectionable amounts of sod, hard lumps, gravel, subsoil or other undesirable material, to a depth of eighteen (18) inches.

7.

Street trees.

a.

Purpose. The street tree requirements are intended to promote air quality, shade, neighborhood character, traffic calming, reduced stormwater runoff, wildlife habitat, pedestrian amenity and aesthetic value.

b.

Applicability. Street trees shall be installed in conjunction with the construction of any principal commercial, industrial, institutional or multifamily building with more than three (3) units along a section of public roadway with curb and gutter installed or scheduled to be installed in conjunction with the project.

c.

Location. Street trees shall be installed within the public right-of-way or within ten (10) feet of the public right-of-way.

d.

Spacing and planting requirements. Unless the City determines that it is necessary to address specific site conditions, three (3) deciduous trees are required for every one hundred (100) linear feet of street frontage. Street trees need not be placed at exact intervals, but they must be placed evenly along the street frontage.

The City shall have the authority to determine the final location of street trees. Mulch shall be installed to a minimum coverage thickness of two (2) inches within a radius of three (3) feet of the trunk base. Tree grates may be used in lieu of mulching at the discretion of the City.

8.

Perimeter parking lot landscaping.

a.

Purpose. The perimeter parking lot landscaping requirements are intended to screen views of parking lots and access lanes from public rights-of-way, mitigate off-site headlight projection, and provide pervious surfaces to reduce stormwater run-off.

b.

Applicability. Perimeter parking lot landscaping shall be required with the installation or reconstruction (as defined in subsection 2.b.) of any off-street parking area or access lane adjacent to the public right-of-way and/or visible from and within three hundred (300) feet of a public right-of-way.

c.

Standards. All parking lots and access lanes shall provide perimeter landscaping between said off-street parking areas and access lanes and adjacent public rights-of-way. Said perimeter landscaping shall be constructed with standard poured-in-place twenty-four-inch concrete curbing or apron on the parking lot side in order to minimize damage to plant material.

d.

Trees and shrubs. Trees and shrubs shall be installed in accordance with the following table. The intent of the minimum requirements column is to provide a total number of trees and shrubs required based on street frontage, not to dictate the spacing of the trees and shrubs within that frontage. For fractions of the specified linear feet, the number of trees and shrubs required shall be the corresponding fraction.

e.

Applicability to industrial districts. Within the I-1—Industrial and I-2—Industrial zoning districts, the Planning and Zoning Commission, City Council and City Engineer may waive or modify perimeter parking lot landscaping requirements based on site conditions if the parking lot has twenty-five (25) or fewer parking spaces and the property is not located along a collector (major) or arterial roadway.

f.

Grade differential. Consideration will be given for parking areas and access lanes that are significantly above or below the finish grade of the adjacent public right-of-way. Modifications to the required plant quantities will be considered on a case-by-case basis by the Planning and Zoning Commission, City Council and City Engineer with the submittal of section and/or elevation drawings showing how the design will meet the intent of the ordinance.

g.

Separation. For off-street parking areas with varying widths adjacent to a public right-of-way, the average separation distance between the parking area and the right-of-way will be the basis for the required plant materials.

h.

Substitutions. The City may allow perennials to be substituted for a portion of the required shrubs on a one-to-one basis, and for one (1) shade tree to be substituted for three (3) shrubs, based on specific site conditions and the overall landscape design for the site.

9.

Interior parking lot landscaping.

a.

Purpose. The interior parking lot landscaping requirements are intended to break up large expanses of pavement, provide relief from the heat island effect associated with paved areas, promote air quality, shade, aesthetic value, and provide pervious surfaces to reduce stormwater run-off.

b.

Applicability. Interior parking lot landscaping applies to any new or reconstructed parking lot (as defined by subsection 2.b.).

c.

Standards. All parking lots containing fifty (50) or more off-street parking spaces shall provide interior landscape areas within the parking lot. Said landscape areas shall be provided at the rate of ten (10) square feet per parking space, shall be no less than ten (10) feet by ten (10) feet (one hundred (100) square feet), and shall be constructed with poured-in-place concrete curbing to minimize damage to plant material. The poured-in-place concrete curbing requirement may be waived by the Planning and Zoning Commission, City Council and City Engineer for landscape beds intended to function as rain gardens, stormwater infiltration areas or stormwater detention facilities. For parking lots with one hundred (100) to four hundred (400) parking spaces, at least fifty (50) percent of the landscape areas shall be no less than six hundred (600) square feet in area with a minimum width dimension of ten (10) feet. For parking lots with more than four hundred (400) parking spaces, at least fifty (50) percent of the landscape areas shall be no less than one thousand two hundred (1,200) square feet in area with a minimum width dimension of ten (10) feet.

d.

Placement of landscape areas. Live plant material should be evenly dispersed throughout the parking area.

e.

Trees and shrubs. At least one (1) shade tree and three (3) shrubs shall be provided for every twenty (20) parking spaces or fraction thereof within the off-street parking area. One (1) shade tree may be substituted for three (3) shrubs, but shrubs may not be substituted for shade trees. The City may allow perennials to be substituted for a portion of the required shrubs on a one-to-one basis, based on specific site conditions and the overall landscape design for the site.

10.

Buffer yards.

a.

Purpose. The buffer yard requirements are intended to provide separation between land uses of differing intensity. Buffer yards utilize a combination of distance and plantings to form a dense landscaping screen to mitigate the undesirable impacts associated with incompatible land uses on adjacent properties. Earthen berms and/or opaque wood or similar screening fence as defined in this section may also be used where appropriate at the discretion of the Planning and Zoning Commission, City Council and City Engineer.

b.

Applicability. Buffer yards shall be required between a single- or two-family residential use and any other non-agricultural land use, and between a multiple family residential use (three (3) or more units) and any commercial, industrial or institutional use. Buffer yards shall also be required for parking lots and access lanes associated with these uses, whether they are located on the same parcel or on a separate parcel.

c.

Location of buffer yards. Buffer yards shall be located along the entire length of any lot line where two (2) land uses of differing intensity abut, excluding areas adjacent to access points and sight triangles. Such buffer yards may be located within required yards, but not within any portion of the public right-of-way or over any established trail or access easement.

d.

Responsibility for buffer yard installation. Installation of all required buffer yards shall be the responsibility of the proposed higher intensity use and shall be located on the lot of the higher intensity use unless a perpetual landscape easement is obtained from the property owner with the lower intensity use, in which case the buffer yard may be located on the lot with the lower intensity use. However, if a higher intensity use is already in place and zoned before a lower intensity use is zoned, it is the responsibility of the lower intense use to install a buffer yard. In situations where the higher intensity use was in place prior to the adoption of this section (December 8, 2011), or any subsequent amendments, a buffer yard shall not be required with the subsequent development of the adjacent lower intensity land use. Landscape easements for buffer yards may be required in conjunction with the platting process in situations where such buffer yards will be required based on existing or proposed zoning and/or land uses.

e.

Standards. For the purpose of these standards, the following zoning designations shall apply to the table below. Buffer yards shall be installed in accordance with the following table:

A screening fence may be made of solid wood, composite material with the appearance of solid wood, vinyl with the appearance of solid wood, masonry, or a combination of masonry and any of the other materials listed. In situations where the rear walls of accessory garages are located within twenty (20) feet of a property line, the planting material numbers required for a buffer yard with a screening fence will apply, provided the wall of the accessory garages is at least one hundred (100) feet in length and provided that the number of planting materials required for a buffer yard without a fence are provided in areas not occupied by such garages.

In order to provide flexibility in the application of this ordinance, the Planning and Zoning Commission, City Council and City Engineer may allow material numbers and/or types to be modified on a case-by-case basis with the submittal of an oblique view or elevation sketch of the buffer yard showing how the proposed materials will meet the dense landscaping screen intent of this chapter within five (5) years of initial installation and at full maturity.

f.

Sizes. In order to provide an effective landscaping screen in conjunction with site development, minimum sizes at the time of planting and minimum heights at maturity have been established. The classification of various types of materials shall be based on the City of Bismarck's Forestry standards and specifications.

g.

Applicability to nonconforming uses. Proposed modifications to a required buffer yard adjacent to any nonconforming use, based on zoning, may be considered on a case-by-case basis by the Planning and Zoning Commission, the City and the City Engineer.

h.

Applicability to buffer yards in areas within the extraterritorial area. Consideration will be given by the City on a case-by-case basis to allow a modified buffer yard in developing areas within the extraterritorial area. Consideration will be given for reduced plant quantities, sizes, locations and plant species.

i.

Grade differential. Consideration will be given for required buffer yards that are significantly above or below the finish grade of the adjacent property. Modifications to the required plant quantities may be considered on a case-by-case basis by the Planning and Zoning Commission, the City and the City Engineer with the submittal of section and/or elevation drawings showing how the design will meet the intent of the chapter.

11.

Installation, maintenance, replacement, inspection and enforcement.

a.

Installation of street trees. The City shall approve the time for installation of street trees.

b.

Installation of other required landscaping. All other landscaping and buffer yards required by this subsection shall be healthy and in-place as soon as grading or construction has been completed to eliminate or reduce wind and/or water erosion. When landscaping cannot be completed in conjunction with site development due to seasonal constraints, the plant material shall be installed at the beginning of the next growing season, unless otherwise approved by the City.

c.

Maintenance and replacement. The owner, or successors in interest, or agent, if any, shall be responsible for regular maintenance of all landscaping in good condition in a way that presents a healthy, neat and orderly appearance. All landscaping must be maintained free from disease, pests, weeds and litter. This maintenance must include weeding, watering, fertilizing, pruning, mowing, edging, mulching and other maintenance, as needed and in accordance with acceptable horticultural practices. Dead plants must be promptly removed and replaced within the next growing season. Trees located along fire department access routes, as identified on an approved site plan, must be pruned as needed to maintain a vertical clearance height of no less than fourteen (14) feet.

d.

Inspection and enforcement. All landscaping shall be subject to periodic inspection by the City. Landscaping that is not installed, maintained or replaced as needed to comply with the approved landscape plan shall be considered a violation of this section and shall be subject to the enforcement provisions.

12.

Screening of mechanical equipment and solid waste collection areas.

a.

Mechanical equipment. All rooftop and ground mounted mechanical equipment shall be designed and located so to be as unobtrusive as possible. If this is not possible, ground equipment shall be screened from view of adjacent properties and public rights-of-way by landscape plantings, fencing or other screening treatment compatible with the principal building.

b.

Solid waste collection areas. All solid waste collection areas for commercial, industrial, institutional or multifamily buildings with more than four (4) units shall be screened from view of adjacent properties and public rights-of-way on at least three (3) sides with a six-foot solid masonry wall, opaque wood fence or other compatible building material.

1.

"Sidewalk" as referenced in this code and section means that improved portion of a street between the curb lines or the lateral lines of a roadway, and the adjacent property lines, intended for use by pedestrians.

2.

As of March 1, 2019, all newly constructed residential, commercial, industrial, or public properties at discretion of City Engineer shall include the installation of sidewalks unless specifically waived by the City.

3.

The owner of any lot or parcel of land adjoining any street or where a sidewalk has been mandated shall construct, reconstruct and maintain in good repair such sidewalks along the street or adjacent to the lot or parcel of land as have been constructed or ordered. Any such action occurring in the public right-of-way requires the owner to apply for a permit with the City.

4.

Sidewalks must be made and constructed of concrete or other such designated materials as determined by the City Engineer, and must meet the following conditions:

a.

Sidewalks must be designed and constructed in compliance with Title II of the Americans with Disabilities Act (ADA).

b.

Unless otherwise designated by the City Engineer, sidewalks must be sixty (60) inches in width (five (5) feet).

c.

When constructed along improved commercial, industrial or school lots, sidewalks must be a minimum of seventy-two (72) inches in width (six (6) feet).

d.

Unless otherwise approved by the City Engineer, all sidewalks' lateral edge shall be offset twelve (12) inches from the street right-of-way.

5.

The owner of any lot or parcel of land abutting any sidewalk shall be in compliance with N.D.C.C. Chapter 40-29 and shall:

a.

Keep the sidewalk clean and unobstructed at all times.

b.

Remove snow and ice within twenty-four (24) hours after the snow falls or ice forms, and keep the sidewalk free of ice and snow. Sand or a non-corrosive environmentally safe ice melt may be used to make the area safe for pedestrian travel if removal of ice is impracticable.

c.

Should snow and ice not be removed as required, the City may remove the snow and ice at its discretion and assess the costs of removal to the abutting property owner.

d.

Preserve and keep clear from obstruction all survey monuments.

6.

The City may set a fee for any permit to construct or reconstruct a sidewalk. The fee is set by resolution of the City Council.

(Ord. No. 228, 1-30-2020)