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HomeMy WebLinkAbout1991-03-05 Minutes Pursuant -_ H the call and notice thereof the Planning and Zoning Commission of the City of Centerville held their regular meeting on Tuesday, March 5, 1991 at the City Hall- Chairperson Tourville called the meeting to order at 7: p.m. Present: Welk, Drilling. Absent: Vermeulen, Wilharber- It. appeared to be the consensus of the Planning of Zoning Commission members present to table the approval of the February 6, 1991. meeting minutes until April because only two persons at this meeting were at the February meeting - Chairperson Tourville asked that the Nelson election signs be taken down, there is one at the Tourville property, Trippe1 s Market and there may be others. The Planaina and Zoning Commission discussed the proposed Planned Unit Development amendment to Ordinance #4 in detail. A copy of the result of their discussion is attached to and made part of these minutes. The Planning and Zoning Commission also ais:ust d the first page of the multi- family dwelling unit Appendix C which would be a proposed amendment to Ordinance #4. A cop of this proposed amendment 18 attached to and made a part of these minutes. Motion by Tourville, second by Drilling to request an explanation from Mayor Haberman with regard to his comments of the Planning and Zoning Commission at the City Council's Goals and Priorities meeting dated January 30, 1991 and request any specifics that he may be able to give them with regard to his expectations of the Planning and Zoning Commission in amending City Ordinances, motion carried unanimously. Motion by Welk, second by Drilling to adjourn the meeting, motion carried unanimously. Meeting adjourned at 10:20 p.m. Respectfully submitted, Tamara M. Miltz- Miller Clerk/Administrator • ARTICLE 5. PLANNED UNIT DEVELOPMENTS 51. PURPOSE. The purposes of this article are: 51.01 To encourage a more creative and efficient development of land and its improvements through the preservation of natural features and amenities than is possible under the more restrictive application of zoning requirements such as lot sizes, height and building setbacks, while at the same time, meeting the standards and purposes of the comprehensive plan and preserving the health, safety, and welfare of the citizens of the City. 51.02 To allow for the potential mixture of uses in an integrated and well planned area. 51.03 To ensure concentration of open space into more usable areas, preservation and utilization of the natural resources of the site and prevents the disruption of natural drainage patterns. 51.04 To facilitate the economical provision of streets and pubic utilities. 52 GENERAL REQUIREMENTS. A special use permit shall be required of all PUD. The City may approve the PUD only if it finds that the development satisfied all the following standards: 52.01 The PUD is consistent with the City Comprehensive, Sewer Master Plan, Water Master Plan and Storm Sewer Master Plan. 52.02 The PUD is an effective and unified treatment of the development possibilities on the project site and the development plan provides for the preservation of unique natural amenities such as streams, stream banks, wooded cover, rough terrain, and similar areas. 52.03 The PUD will be planned and developed to harmonize with any existing or proposed development in the areas surrounding the project site. The uses proposed will not have an undue and adverse impact on the reasonable enjoyment of neighboring property and will not be detrimental to potential surrounding uses. 52.04 The tract under consideration is under single ownership or control. An application for PUD approval must be filed jointly by all landowners. In the case of multi- ownership, the approved final plat shall be binding on all landowners. 52.05 The tract is at least two (2 1/2) acres in size. 52.06 Single- family detached units may be allowed as a PUD in areas proving urban services, providing parks and open space page two are an integral part of the plan. 52.07 Each phase of the proposed development, as it is proposed to be completed, is of sufficient size, composition, and arrangement that its construction, marketing, and operation are feasible as a complete unit, and that provision and construction of dwelling units and common open space are balanced and coordinated. 52.08 The POD will not create an excessive burden on parks, schools, streets, and other public facilities and utilities which serve or are proposed, to serve the district. 52.09 The proposed total development is designed in such a manner as to form a desirable and unified environment within its own boundaries. 52.11 The plans required under this article must be submitted in a form which will satisfy the requirements of Ordinance 118 for the preliminary and final plans. 53 PERMITTED USES. Permitted uses are: 53.01 Dwelling units in detached, clustered, semi-detached, or attached multi - storied structures or combinations thereof. 53.02 Commercial uses. 53.03 Supporting community facilities. 54 STANDARDS 54.01. OPEN SPACE. A minimum of twenty (2C1) percent of the gross land area for private or public open air recreational use protected by covenants running with the land or by conveyances or dedicated as the Planning Commission may specify shall be an integral part of the plan. Such open space areas shall not include land devoted to streets, parking and private yards. Whenever possible, common open space shall be linked to the open space areas of adjoining developments. Common open space shall be of such size, shape, character, and locations as to be usable for its proposed purpose. Complimentary structures and improvements that are necessary and appropriate for the benefit and enjoyment of the residents of the PUD shall be provided within the areas of PUD improvement. page three 54.01 -1 STANDARDS FOR COMMON OR OPEN SPACE. No open area may be approved as common open space under the provision of this article unless it meets the following standards: (1.) The location, shape, size, and character of the common open space must be suitable for the planned development. (2.) Common open space must be used for amenity or recreational purposes. The uses authorized for the common open space must be appropriate to the scale and character of the planned development, considering its size, density, expected population, topography, and the number and type of dwellings to be provided. (3.) Common open space must be suitably improved for its intended use but common space containing natural features worthy of preservation may be left unimproved. The buildings, structures and improvements which are permitted in the common open space must be appropriate to the uses which are authorized for the common open space and must conserve and enhance the amenities of the common open space having regard to its topography and unimproved condition. 54.01 -2 OPERATING AND MAINTENANCE REQUIREMENTS FOR PUD COMMON OPEN SPACE FACILITIES. The PUD plan shall contain provision to assure the continued operation and maintenance of such open space and service facilities to a predetermined reasonable standard. Common private or public open space and service facilities within a PUD may be placed under the ownership of one or more of the following, as approved by the City Council; (1.) n vi �u public, J� d tcd .bli whore a ommun t` w dc - _ u .,•�..� is anticipated and the City Council agrees to accept the dedication. (2.) Landlord control, where only use by tenants is anticipated. (3.) Property Owner Association, provided all of the following conditions are met: a. Prior to the use or occupancy or sale or the execution of contracts for sale of an individual building unit, parcel, tracts, townhouse, apartment, or common area, a declaration of covenants, conditions and restrictions or an equivalent document or a document such as specified by Laws 1963, Chapter 457, Section 11 and a set page four of floor plans such as specified by Laws 1963, Chapter 457, Section 13 shall be filed with the City of Centerville, said filing with the •City to be made prior to the filings of said declaration or document of floor plans with the recording officers of the County. b. The declaration of covenants, conditions and restrictions or • equivalent document shall specify that deeds, leases or documents of conveyance affecting buildings, units, parcels, tracts, townhouses, or apartments shall subject said properties to the terms of said declaration. c. The declaration of covenants, conditions and restrictions shall provide that an owner's association or corporation shall be formed and that all owners shall be members of said association or corporation which shall maintain all properties and common areas in good repair and which shall assess individual property owners proportionate shares of joint or common costs. This declaration shall be subject to the review and approval of the City Attorney. The intent of this • requirement is to protect the property values of the individual owner through establishing private control. d. Tne declaration shall additionally, v amongst other things, provide that in the event the association or corporation fails to maintain properties in accordance with the applicable rules and regulations of the City of Centerville or fails to pay taxes or assessments on properties as they become due and in the event the said City of Centerville incurs any expenses in enforcing its rules and regulations, which said expenses are not immediately reimbursed by the association or corporation, then the City of Centerville shall have the right to assess each page five property its pro rata share of said expenses. Such assessments, together with interest thereon and costs of collection, shall be a lien on each property against which each such assessment is made. e. Membership must be mandatory for each owner, and any successive buyer. f. The open space restrictions must be permanent and not for a given period of years. g. The Association must be responsible for liability insurance, local taxes, and the maintenance of the open space facilities to be deeded to it. h. Property owners must pay their pro rata share of the cost of the Association by means of an assessment to be levied by the Association which meets the requirements for becoming a lien on the property in accordance with Minnesota Statues. i. The Association must be able to adjust the assessment to meet changed needs. j. The by -laws and rules of the Association and all covenants and restrictions to be recorded must be approved by the City Council prior to the approval of the final PUD plan. 54.01 -3 STAGING OF PUBLIC AND COMMON OPEN SPACE. When a PUD provides for common private or public open space, and is planned as a staged development over a period of time, the total area of common or public open space or land escrow security in any stage of development shall, at a minimum, bear the same relationship to the total open space to be provided in the entire PUD as the stages or units completed or under development bear to the entire PUD. 54.02 DENSITY. The maximum allowable density in a PUD District shall be determined by standards negotiated and agreed upon between the applicant and the City. In all cases the negotiated standards shall be consistent with the development policies as contained in the Centerville Comprehensive Plan. Whenever any PUD is to be developed in page seven 54.07 PARKING. Off- street parking and loading space shall be provided in each PUD in the same ratios for types of buildings and uses as required in the underlying zoning district. 54.08 ARRANGEMENT OF COMMERCIAL USES. When a PUD includes commercial uses, commercial buildings shall be planned as groups having common parking areas and common ingress and egress points. Each commercial area shall be separated from abutting residential areas by appropriate screens or fences. The design of commercial areas shall provide for the integrated and harmonious design of buildings and for adequate and properly arranged facilities for internal traffic, circulation, landscaping, and such other features and facilities as may be necessary to make the areas attractive and efficient from the standpoint of adjacent non - commercial areas. Any area which is not to be immediately improved or developed shall be landscaped or otherwise maintained in a neat and orderly manner as specified by the city. 54.05 ARRANGEMENT OF INDUSTRIAL USES. In any PUD including industrial uses, the industrial uses shall be provided in park -like surroundings utilizing landscaping and existing woodlands as buffers to screen lighting, parking areas, loading areas and outdoor storage of raw materials or products. An industrial area in a PUD shall provide for the harmonious design of buildings and a compact grouping in order to economize in the provisions of required utility services. Streets in a planned industrial area shall be kept to a minimum in order to reduce traffic. All spaces between the right -of - way line and the industrial building line and all intervening spaces between buildings, drives, parking areas, and improved areas shall be landscaped with and properly maintained. LrreS dud plantings an 55 PROCEDURE 55.01 PRE - APPLICATION MEETING. Prior to the submission of any plan to the Planning and Zoning Commission, the applicant shall meet with the Zoning Administrator to discuss the contemplated project relative to community development objectives for the area in question and to learn the procedural steps and exhibits required. This includes the procedural steps for a special use permit and a preliminary plat. The applicant shall submit: (1.) A simple sketch plan for informal review and • discussion. (2.) Overall maximum PUD density range. (3.) General location for major streets and pedestrian • page eight ways. (4.) General location and extent of public and common open space. ( General location of residential and non- residential land uses with approximate type and intensities of development. (6.) Staging and time schedule of development. (7.) Environmental information affecting the development. (8.) Other special criteria for development. 55.02 GENERAL CONCEPT STAGE. After the elements requested in the pre application meeting have been met, the Zoning Administrator shall prepare a report for review at the next appropriate Planning and Zoning meeting. 55.03 SPECIAL USE PERMIT /PRELIMINARY PLAT APPLICATION. The applications shall be accompanied by an escrow deposit to cover the costs incurred in checking and processing plans and exhibits. The amount of the escrow shall be determined by the City Council. 55.03 -1 The following exhibits shall be submitted to the zoning administrator by the proposed developer as part of the application for a special use permit: (1 -) A written statement generally describing the proposed PUD and the market which it is intended to serve and the market demand. The statement is also to demonstrate the proposed ETD's relationship to the City's Comprehensive Plan and how the proposed PUD is to be designed, arranged and operated in order to permit the development and use of neighboring property in accordance with the applicable regulations of the City. (2.) A statement setting forth the reasons why, in the opinion of the applicant,, the PUD will be in the public interest and consistent with the purposes specified for PUD's by section 51. (3.) A statement of the present ownership of all the land included within the planned development and a list of property owners within five hundred (500) feet of the outer boundaries of the property. (4.) A general indication of the expected schedule of development including progressive phasing and time schedule. (5.) A map giving the legal description of the property including approximate total acreage and also indicating existing property lines and dimensions, ownership of all parcels, platting, easements, street right -of -ways, utilities, and buildings for the property and for the area three page nine hundred and fifty (350) feet beyond. (6.) Site conditions: Graphic reproductions of the existing site conditions at a scale of one hundred (100) feet. a. Contours - minimum two (2) foot intervals. b. Location, type and extent of tree cover and vegetation. c. Slope analysis. d. Location and extent of water bodies and streams and flood plains within three hundred (300) feet of the subject property. e. Significant rock outcroppings. f. Existing drainage patterns. g. Vistas and significant views. h. Soil conditions as they affect development. All of the graphics should be the same scale as the final plan to allow easy cross reference. The use of overlays is recommended for clear reference. (7.) A map indicating proposed land uses including housing units and types, vehicular and pedestrian circulation, and open space uses. (8.) Full description as to how all necessary governmental services will be provided to the development including sanitary sewers, storm sewers, water systems, streets and other public utilities. (0.) An engineering report presenting results of soil boring tests and soil analysis of the site. (10.) A statement of the estimated total number of dwelling units or square feet of developed land use activities proposed for the POD and a tabulation of the proposed approximate allocations of land use expressed in acr , n d _ the total '"•• as a percent of project area, which shall l include at least the following as applicable: a. Area devoted to residential uses. b. Area devoted to residential use by building type. c. Area devoted to common open space. d. Area devoted to public open space. e. Approximate area devoted to streets. f. Approximate area devoted to, and number of, off - street parking and loading spaces and related access. g. Approximate area, and floor area, devoted to commercial uses. h. Approximate area, and floor area, devoted to industrial or office use. (11.) When the POD is to be constructed in stages • page ten during a period of time extending beyond a single construction season, a schedule for the development of such stages or units shall be submitted stating the approximate beginning and completion date for each such stage or unit and the proportion of the total PUD public or common open space and structures /units to be provided or constructed during each such stage and the overall chronology of development to be followed from stage to stage. (12.) When the proposed PUD includes provisions for public or common open space or service facilities, a statement describing the provision that is to be made for the care and maintenance of such open space or service facilities. (13.) General intents of any restrictive covenants that are to he recorded with respect to property included in the proposed PUU. (14.) Schematic utilities plans indicating placement of water, sanitary and storm sewers. (15.) Any additional information requested by the Planning and Zoning Commission and City Council that may be required for clarification of the proposed project. (16.) Twenty -five (25) copies of all required information shall be submitted. 55.04 PRELIMINARY PLAT SUBMITTAL, The applicant shall submit a preliminary plat and all the necessary documentation as required under Ordinance #8 of all or that portion of the project to be platted. For purposes of administrative simplifications, the public hearings required for the special use permit and preliminary plat may be combined into one (1) hearing or may be held concurrently. 55.05 ACTION BY COMMISSION. Within 30 days of the filing of the application, the Planning Commission shall hold a public hearing on the proposed PUD following written and published notice as required for amendments of the ordinance. Following such hearing and within 60 days of the filing of the application or at a later time agreed to by the • applicant, the Planning Commission shall recommend approval or disapproval of the preliminary proposal with such changes and conditions as it may suggest and shall transmit its recommendations to the City Council. In its recommendations the Commission shall determine whether the proposed PUD is consistent with the objectives for Planned Unit Developments specified in Section 51 and with the Comprehensive Land Use Plan of the City; and whether the benefits, combination of various land uses, if proposed, and the inter relationship with the land uses in the surrounding area justify the page eleven deviation from standard district regulations allowed by this ordinance for PUD"s. • 55.06 ACTION BY COUNCIL. Upon receipt of the recommendations of the Planning Commission, the Council shall consider the application and, after holding such public hearing as it deems desirable, shall approve or disapprove the application with such changes or conditions, it any, as it may deem appropriate. Refusal of any changes or conditions shall constitute denial of the plans by the City Council. Failure of the and owner to notify the City Council of his acceptance or refusal of the modification to the plan constitute acceptance of these conditions. No building permits may be issued on land within the PUD until final plans for the development have been approved by the City Council under the procedures provided in the following sections. 55.07 PUD AGREEMENT. The Zoning Administrator shall instruct the City Attorney to draw up a PUD Agreement which stipulates the specific terms and conditions approved by the City Council and accepted by the applicant. This Agreement shall be signed by the Mayor of the City of Centerville, • Clerk /Administrator and the applicant within thirty (30) days of City Council approval of the PUD application and final plat. Where the PUD application and /or final plat is to be resubmitted or denied approval, the City Council • action shall be by written report, setting forth the reasons for its action. 55.08 FINAL REVIEW AND APPROVAL. An application for review and approval of the final plat shall be filed by the applicant with the Planning and Zoning Commission within six months of the date nn which approval of the prclimina by the Council. If application for final1yappro was given pp made within the time required, the sa lovsl is not considered abandoned unless an extension period is re hall r ed and granted by the City Council. quested 55.08 -1 DOCUMENTATION REQUIRED. In addition to the requirements in Ordinance 08, Article 44, the final application shall be accompanied by the following supporting documentation: (1.) Proof of recording any easements and restrictive covenants prior to the sale of any land or dwelling unit within the PUD and of the establishment and activation of any entity that is to be responsible for the management and maintenance Of any public or common open space or service facility. (2.) All certificates, seals and signatures required • page twelve for the dedication of land and recordation of documents. (3•) Final architectural working drawings of all structures. (4.) A final plat and final engineering plans and specifications for streets, utilities and other public improvements, together with a signed Community /Developer Agreement for the installation of such improvements and financial guarantees for the completion of such improvements. (5.) The approximate date when construction will begin by stage of development and the area of open space to be provided at each stage. (6.) Agreements, provisions or covenants which govern the use, maintenance and continued protection of the development and any of its common open areas. (7.) Any other plan, agreements, or specifications necessary for the City staff to review the proposed construction. All work must be in conformance with the Minnesota State Uniform Building Code. (8.) Other conditions specifically required by the Commission and the Council for the particular POD. • 55.08 - REVIEW AND ACTION BY CITY STAFF AND PLANNING AND ZONING COMMISSION. Upon receipt of a completed final plat application, the Zoning Administrator shall refer such application to the following City staff and /or official bodies for the indicated action: (1.) The City Attorney for legal review of all documents. (2.) The City Engineer for review of all engineering data and the City /Developer Agreement. (3.) The City Building Official for review of all building plans. (4.) The Zoning Administrator for review of all plans for compliance with the intent, purpose and requirements of this Code and conformity with the General Concept Plan and Comprehensive Plan. (5.) The Planning and Zoning Commission for review and recommendation to the City Council. (6.) When appropriate, as determined by the Zoning Administrator to the Park and Recreation Committee for review and recommendations. (7.) When appropriate, as determined by the Zoning Administrator to other special review agencies such as the Watershed District, Soil Conservation Services, Highway Departments or other affected agencies. All staff designated in paragraphs a. through d. hereof • page thirteen shall submit their reports in writing to the Zoning Administrator for Planning and Zoning Commission review. 55.08 -3 FINAL PLAT. The Final Plat is to serve as complete, thorough and permanent public record of the PUD and the manner in which it is to be developed. It shall incorporate all prior approved plans and all approved modifications thereof resulting from the PUD process. • It shall serve in modifications thereof resulting from the PUD process. It shall serve in conjunction with other City codes as the land use regulation applicable to the PUD. 55.08 -4 NON - COMPLIANCE. In the event the plat submitted for final approval is not in substantial compliance with the preliminary development plan, the Planning and Zoning Commission shall notify the applicant within forty -five (45) days of the date of application, setting forth the ways in which the plan is not in substantial compliance. (1) The applicant may treat such notification as denial of preliminary approval; or (2) The applicant may refile his plan so that it does substantially comply with the outline development plan; or (3) The applicant may file a written request with the Planning and Zoning Commission that it hold a public hearing on his request for final approval. Any such hearing shall be held within thirty (30) days after the request for such hearing. Within forty -five (45) days of such hearing the Planning and Zoning Commission shall either grant or deny preliminary annroval to the plan. 55.08 -5 FINAL APPROVAL. The City Council shall review and approve the final plat if it is in substantial compliance with preliminary plat. Following this, the applicant shall record the final plat in the manner provided for recording subdivision plats. If the final plat is not in substantial compliance, the applicant shall be requested to repeat the procedures outlined for the preliminary plat. 56 SITE IMPROVEMENTS. At any time following the approval of a Development Stage Plan by the City Council, the applicant may, pursuant to the applicable codes of the City apply for, and the Zoning Administrator may issue, grading permits for the area within the PUD for which Development Stage Flan approval has been given. page fourteen ? o COMMON AREAS. 57.01 CONSTRUCTION. The construction and provisions of all of the common open spaces and public and recreational facilities which are shown on the final development plan must proceed at the same phase as the construction of dwelling units. At least once every six (6) months following the approval of the final development plan, the zoning administrator shall review all of the building permits issued for the planned development and examine the construction which has taken place on the site. If he shall find that the rate of construction of dwelling units is greater than the rate at Which common open spaces and public and recreational facilities have been constructed and provided, he shall forward this information to the city council, which may revoke the planned unit development permit. 57.02 CONVEYANCE AND MAINTENANCE OE COMMON OPEN SPACE. 57.02 -1 All land shown on the final development plan as common open space must be conveyed to homeowners association or similar organization provided in an indenture establishing an association or similar organization for the maintenance of the planned development, The common open space must be conveyed to the homeowners association or similar organization subject to covenants to be approved by the city council which restrict the common open space to the uses specified on the final development plan, and which provide for the maintenance of the common open space in a manner which assures its continuing use for its intended purpose. 57.01 -2 If a homeowners association is created, the applicant shall submit submjt plans at the time of final development and documents which explain: plan of (1.) Ownership and membership requirements. (2.) Articles of incorporation and bylaws. (3.) Time at which the developer turns the association over to the homeowners. ( Approximate monthly or yearly association fee for homeowners. (5.) Specific listing of items owned in common including such items as roads, recreation facilities, parking, common open space ground, and utilities. 56 REVIEW AND AMENDMENTS. page fifteen 5S The Zoning Administrator shall periodically review all PUD's and shall make a report to the City Council on the status of the development. If work on the PUD is not started within three months of the proposed schedule date after final approval has been granted, approval shall terminate unless an extension period is requested or granted by the City Council. Prior to cancellation or revocation of this permit, the City Council shall hold a public hearing at which time all interested parties will be given an opportunity to be heard. 58.02 For additional phases of the PUD, if within five (5) years the project has not progressed, the Zoning Administrator may recommend that the City Council determine what section will be taken with the remainder of the project. Prior to determining the outcome of the PUD, City Council shall hold a public hearing at which time all interested parties will be given an opportunity to be heard. 58.03 Minor changes in the location, placement, and heights of the buildings or structures may be authorized by t he Z onin g Administrator if required by engineering r circumstances not foreseen at the time the final plan was approved. 58.04 Approval of the Planning and Zoning Commission and City Council shall be required for other changes such as rearrangement of lots, blocks and building tracts. These changes shall be consistent with the purpose and intent of the approved final development plan. APPENDIX C - MULTIFAMILY DWELLINGS C -1 - 3pezial Use Permits. - Generally. All multi- family dwellings greater than two units, shall require a special use permit in districts subject to the procedures and standards in Article 6, Section 64 of this Ordinance. In addition, the following standards shall be applicable. C -2 - t - All requests for multi - family dwellings (greater than two units) or special use permit shall be accompanied by a series of site plans and data showing: (1.) Building locations, dimensions, and elevations, all signs, structures, entry areas, storage sites, and other structural improvements to the site. (2.) Circulation plans for both pedestrian and vehicular. (3.) Fences and screening devices. (4.) Solid waste disposal provisions and facilities. (5.) Storm drainage plans. (6.) Fire fighting and other public safety facilities and provisions such as fire lanes. (7.) Data pertaining to numbers of dwelling units, sizes, lot area, ratio, etc. (8.) Exterior wall materials and design information. (9.) A grading plan illustrating the proposed grade changes. All site area, when fully developed, shall be completely graded so as to adequately drain and dispose of all surface water, storm water and groundwater in such a manner as to preclude large scale erosion, unwanted ponding and surface chemical runoff. (10.) A recreation plan illustrating in detail all recreational facilities and structures. (11.) A landscape plan including number, species, and size (diameter) of all plantings. The landscape plan will also denote the location of all existing tree including number, species, size (diameter) and which tree will be removed. (12.) A soil erosion control plan for the construction period. Areas within the construction zone shall be fenced with construction limit fencing as per the plan to prohibit heavy machinery and /or material from being placed on areas not be disturbed during construction. This shall, at a minimum, include all slopes in excess of eighteen (18) percent. (13.) Park dedication. C -3 - Height, setback and land area requirements, (1.) Maximum height: Three (3) stories or forty (40) feet. (2.) Multi - family: a. Efficiency unit: Two thousand three hundred (2,300) square feet (maximum number of efficiency unit, no more than five (5) percent of the total number of units.) •