City of St. Robert, MO Chapter 405 Non-Conforming Situations

Editor's Note — See the Editor's Note at the beginning of Title IV.

Section 405.001 Purpose and Definitions.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. This Chapter shall delineate the requirements for which legal non-conforming situations within the City of St. Robert may be allowed to continue.

B. Unless otherwise specifically provided or unless clearly required by the context, the words and phrases defined in this Section shall have the meanings indicated when used in this Chapter.

DIMENSIONAL NON-CONFORMITY

A non-conforming situation that occurs when the height, size or minimum floor space of a structure or the relationship between an existing building or buildings and other buildings or lot lines does not conform to the regulations applicable to the district in which the property is located.

EFFECTIVE DATE OF THIS REGULATION

Whenever this Chapter refers to the effective date of this regulation, the reference shall be deemed to include the effective date of amendments to this regulation if the amendment, rather than the regulation as originally adopted, creates a non-conforming situation.

EXPENDITURE

A sum of money paid out in return for some benefit or to fulfill some obligation. The term also includes binding contractual commitments to make future expenditures, as well as any other substantial changes in position.

NON-CONFORMING LOT

A lot existing at the effective date of this regulation (and not created for the purposes of evading the restrictions of this regulation) that does not meet the minimum area requirement of the district in which the lot is located.

NON-CONFORMING PROJECT

Any structure, development or undertaking that is incomplete at the effective date of this regulation and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.

NON-CONFORMING SIGN

A sign that on the effective date of this regulation does not conform to one (1) or more of the guidelines set forth in this regulation.

NON-CONFORMING SITUATION

A situation that occurs when, on the effective date of this regulation, an existing lot or structure or use of an existing lot or structure does not conform to one (1) or more of the regulations applicable to the zoning district in which the lot or structure is located. Among other possibilities, a non-conforming situation may arise because a lot does not meet minimum area requirements, because structures exceed maximum height limitations, because the relationship between buildings and the land (in such matters as density and setback requirements) is not in conformity with this regulation or because land or buildings are used for purposes made unlawful by this regulation. Non-conforming signs shall not be regarded as non-conforming situations for purposes of this Chapter.

NON-CONFORMING USE

A non-conforming situation that occurs when property is used for a purpose or in a manner made incompatible by the permitted use regulations applicable to the zoning district in which the property is located (for example, a commercial office building in a residential district may be a non-conforming use). The term also refers to the activity that constitutes the use made of the property. (For example, all the activities associated with running a bakery in a residentially zoned area is a non-conforming use.)

REGULATION

St. Robert Land Development Regulations.

Section 405.003 Continuation of Non-Conforming Situations and Completion of Non-Conforming Projects.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. Except as otherwise provided herein, non-conforming situations that lawfully existed on the effective date of this regulation may be continued although such use does not conform to the provisions of the zoning district in which it is located. If no structural alterations are made, a non-conforming use of a building may be changed to another non-conforming use of the same or of a more restricted classification. Whenever a non-conforming use has been changed to a more restricted use or a conforming use, such use shall not thereafter be changed to a less restricted use. The non-conforming use of a building may be hereafter extended throughout those parts of a building which were lawfully and manifestly arranged or designed for such use at the time of the enactment of this regulation.

B. Non-conforming projects authorized prior to the adoption of this regulation may be completed as approved.

C. Non-conforming situations existing at the time of annexation to the City may be continued, subject to the provisions of this Chapter.

D. Whether a non-conforming use legally existed shall become a question of fact, the matter shall be decided by the Board of Adjustment in accordance with the guidelines set forth in this regulation.

E. Whenever the use of a building becomes non-conforming through a change in zoning district boundaries, such use may be continued subject to the limitations stated in Section 405.013 (Abandonment and Discontinuance of Non-Conforming Situations).

F. In the event an estate is filed in Probate Court, to which a legal non-conforming situation is a part of said estate, the non-conforming situation that existed on the effective date of this regulation may be continued upon final adjudication of the Probate Court proceedings under the following conditions:

1. No such non-conforming situation shall in any way be extended or enlarged either on the same or adjoining property.

2. Upon final adjudication by the Probate Court, a non-conforming situation shall not have remained vacant, unoccupied or abandoned for more than six (6) months after final disposition of the estate.

3. A building inspection shall be performed by the City Building Department to ensure that the non-conforming situation which involves any building or structure is structurally sound and safe for continued use.

G. Any mobile home court that lawfully existed on the effective date of this regulation may be continued, although such use does not conform to the provisions of the zoning district in which it is located, under the following conditions subject to the limitations stated in Section 405.013 (Abandonment and Discontinuance of Non-Conforming Situations):

1. No such non-conforming use of land shall in any way be extended or enlarged either on the same or adjoining property.

2. No such non-conforming use of land shall in any way have additional spaces or manufactured units added to it which did not previously exist thus creating an enlargement of the original non-conforming situation.

3. Existing manufactured units may be replaced with a similar structure of an equal size and newer model, so long as the replacement does not create new non-conformity or increase the extent of existing non-conformities with respect to such matters as setback and parking requirements and the replacement occurs within a period of ninety (90) days.

4. Existing spaces may be utilized if not left vacant, unoccupied or abandoned for a period of twelve (12) months. After which, said spaces shall thereafter remain vacant.

5. No existing manufactured units shall be moved in whole or part and relocated to any other location on the same lot.

6. If such non-conforming use of land or any portion thereof is discontinued or changed, any future use of such land or portion thereof shall be in conformity with the provisions of this regulation.

H. The non-conforming use of land existing at the time of the effective date of this regulation may be continued under the following conditions:

1. No such non-conforming use of land shall in any way be extended either on the same or adjoining property.

2. If such non-conforming use of land or any portion thereof is discontinued or changed, any future use of such land or portion thereof shall be in conformity with the provisions of this regulation.

Section 405.005 Non-Conforming Lots.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. In a "R" residential district, when a non-conforming lot can be used in conformity with all of the regulations applicable to the intended use, such as setbacks, except that the lot is smaller than the required minimums (minimum lot size), then the lot may be used for a single-family dwelling.

B. When the use proposed for a non-conforming lot is one that is conforming in all other respects but the applicable setback requirements cannot be reasonably complied with, then the entity authorized by this regulation to issue a permit for the proposed use (Board of Adjustment) may allow deviations from the applicable setback requirements if it finds that:

1. The property cannot reasonably be developed for the use proposed without such deviations,

2. These deviations are necessitated by the size or shape of the non-conforming lot, and

3. The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health or safety.

C. For purposes of Subsection (B), compliance with applicable building setback requirements is not reasonably possible if a building cannot practicably be constructed and located on the lot in conformity with such setback requirements. However, mere financial hardship does not constitute grounds for finding that compliance is not reasonably possible.

D. This Section applies only to undeveloped non-conforming lots in existence on the effective date of this regulation. A lot is undeveloped if it has no substantial structures upon it. A change in use of a developed non-conforming lot may be accomplished in accordance with Section 405.011.

E. Subject to the following sentence, if, on the date this Section becomes effective, an undeveloped non-conforming lot adjoins and has continuous frontage with one (1) or more other undeveloped lots under the same ownership, then neither the owner of the non-conforming lot nor his successors in interest may take advantage of the provisions of this Section. This Subsection shall not apply to a non-conforming lot if a majority of the developed lots located on either side of the street where such lot is located and within five hundred (500) feet of such lot are also non-conforming. The intent of this subsection is to require non-conforming lots so be combined with other undeveloped lots to create conforming lots under the circumstances specified herein, but not to require such combination when that would be out of character with the way the neighborhood has previously been developed.

Section 405.007 Extension or Enlargement of Non-Conforming Situations.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. Except as specifically provided in this Section, no person may engage in any activity that causes an increase in the extent of non-conformity of an existing non-conforming situation. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:

1. An increase in the total amount of land or floor space devoted to the original non-conforming use, or

2. Greater enlargement with respect to dimensional restrictions such as setback requirements, height limitations or density requirements or other requirements such as parking requirements.

B. Subject to Subsection (D), a non-conforming use may extend throughout any portion of a completed building that, when the use was made non-conforming by this regulation, was manifestly designed or arranged to accommodate such use. However, a non-conforming use may not be extended to additional buildings or to land outside the original building.

C. A non-conforming use of open land may not be extended to cover more land than was occupied by that use when it became non-conforming, except that a use that involves the removal of natural materials from the lot (e.g. a quarry operation) may be expanded to the boundaries of the lot where the use was established at the time it became non-conforming if ten percent (10%) or more of the earth products had already been removed on the effective date of this regulation.

D. The volume, intensity or frequency of use of property where a non-conforming situation exists may be increased and the equipment or processes used at a location where a non-conforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other paragraphs of this Section occur.

E. Notwithstanding Subsection (A), any manufactured home used for single-family residential purposes and maintained as a legal non-conforming use on an individually owned lot may be replaced with a similar structure under the following conditions subject to the limitations stated in Section 405.013 (Abandonment and Discontinuance of Non-Conforming Situations):

1. The owner referred to herein above shall have occupied the existing mobile home, prior to replacement, for a continuous period of no less than twelve (12) months.

2. The manufactured home which is intended to replace the existing manufactured home shall be replaced within ninety (90) days and with a newer model. The replacement shall not create new non-conformities or increase the extent of existing non-conformities with respect to such matters as setback and parking requirements.

3. No such non-conforming use of land shall in any way be extended or enlarged either on the same or adjoining property.

F. Whenever (i) there exists a lot with one (1) or more structures on it, and (ii) a change in use that does not involve any enlargement of a structure that is proposed for such lot, and (iii) the off-parking or loading requirements that would be applicable as a result of the proposed change cannot be satisfied on such lot because there is not sufficient area available on the lot that can practicably be used for parking or loading, the proposed use shall not be regarded as resulting in an impermissible extension or enlargement of a non-conforming situation. However, the applicant shall be required to comply with all applicable parking and loading requirements that can be satisfied without acquiring additional land and shall be required to obtain satellite parking in accordance with Section 417.019 if such satellite parking is reasonably available. If such satellite parking is not reasonably available at the time the zoning or conditional use permit is granted, the permit recipient shall be required to obtain it if and when it does become reasonably available. This requirement shall be a continuing condition of the permit.

Section 405.009 Repair, Maintenance and Reconstruction.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. Minor repairs to and routine maintenance of property where non-conforming situations exist are permitted and encouraged.

B. A legal pre-existing non-conforming residential dwelling which is damaged or partially destroyed by fire, flood, wind, explosion, earthquake or other calamity or act of God in excess of fifty percent (50%) of its replacement cost at that time may be repaired or reconstructed provided such work is started within six (6) months of the actual damages occurring, and the non-conforming use is used for residential purposes only. If after the six (6) month period no repairs or replacement have started, the non-conformity shall expire and use of the land can only be used for conforming land uses thereafter.

C. A legal pre-existing non-conforming non-residential building or structure which is damaged or partially destroyed by fire, flood, wind, explosion, earthquake or other calamity or act of God shall not be restored or used for such purpose if the expense of such restoration exceeds fifty percent (50%) of the replacement cost of the building or structure at the time such damage occurred. Any non-conforming building or structure partially destroyed may be restored provided restoration is started within six (6) months of the date of partial destruction and is diligently prosecuted to completion. Whenever a non-conforming building or structure is damaged in excess of fifty percent (50%) of its replacement cost at that time, the repair or reconstruction of such building or structure shall conform to all the regulations of the district in which it is located, and it shall be treated as a new building.

D. The City Building Department may issue a permit authorized by this Section if it is found that, in completing the renovation, repair or replacement work:

1. No violation of Section 405.007 or 405.009 will occur, and

2. The permittee will comply to the extent reasonably possible with all provisions of this regulation applicable to the existing use (except that the permittee shall not lose his right to continue a non-conforming use) and all Building Code requirements of the City are met.

E. Compliance with a requirement of this regulation is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible.

F. An existing structure housing a non-conforming use shall not be enlarged nor structurally altered except under the following conditions:

1. Alteration is for the express purpose of converting the structure to a conforming use upon issuance of an approved building permit.

2. Alteration will ensure compliance with the Building Code requirements of the City, but such alteration shall only be permitted to the extent minimally necessary to bring the structure into compliance with the Building Code regulations.

3. Repairs and non-structural alterations may be made to a non-conforming building upon issuance of an approved building permit.

4. Where there may be a change in tenancy, ownership or management of a structure which houses a non-conforming use upon final clearance of a change of occupancy inspection.

5. A parking area on a lot with a non-conforming building may be paved.

6. A fence may be erected in accordance with the provisions of this regulation on a lot with a non-conforming building.

7. Nothing contained in exceptions (1) through (6) above shall be construed to permit an enlargement of a non-conforming building.

G. No existing building devoted to a use not permitted by this regulation in the district in which such building is located, except when required to do so by law or order, shall be enlarged, extended, reconstructed or structurally altered, unless such use is changed to a use permitted in the district in which such building is located.

Section 405.011 Change in Use of Property Where a Non-Conforming Situation Exists.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. A change in use of property (where a non-conforming situation exists) that is sufficiently substantial to require a new zoning or conditional use permit in accordance with Chapter 406 may not be made except in accordance with Subsections (B) through (D).

B. If the intended change in use is to a principal use that is permissible in the district where the property is located and all of the other requirements of this regulation applicable to that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this regulation is achieved, the property may not revert to its non-conforming status.

C. If the intended change in use is to a principal use, but all the requirements of this regulation applicable to that principal use cannot reasonably be complied with, then the change may be allowed if the Land Use Administrator issues a permit authorizing the change. This permit may be issued if the Land Use Administrator finds, in addition to any other findings that may be required by this regulation, that:

1. The intended change will not result in a violation of Section 405.007, and

2. All of the applicable requirements of this regulation can reasonably be complied with. Compliance with a requirement of this regulation is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible, and in no case may an applicant be given permission pursuant to this Subsection to construct a building or add to an existing building if additional non-conformities would thereby be created.

D. Change To Another Non-Conforming Use. If the intended change in use is to another principal use that is also non-conforming, then the change is permissible if the permit issuing authority authorized by this regulation to issue a permit for the particular use (Board of Aldermen) issues a permit authorizing the change. The permit issuing authority may issue the permit if it finds that all of the following conditions are met:

1. The use requested is one that is permissible in the zoning district in which it is located with either a zoning or conditional use permit, and

2. All of the conditions applicable to the permit authorized in Subsection (C) above are satisfied, and

3. The proposed development will have less of an adverse impact on those most affected by it and will be more compatible with the surrounding neighborhood than the use in operation at the time the permit is applied for.

Section 405.013 Abandonment and Discontinuance of Non-Conforming Situations.

[Ord. No. 2118 §§1 — 3, 8-18-2008]

A. When a non-conforming use, building, structure or portion thereof which is or hereafter becomes vacant and remains unoccupied or is discontinued for a consecutive period of one hundred eighty (180) days, the property involved may thereafter be used only for conforming purposes and shall comply with all of the regulations applicable to the zoning district in which the property is located. Clear intent upon the part of the owner to abandon the non-conformity shall thereafter return the property to the regulations of the zoning district in which it is located.

B. For purposes of determining whether a right to continue a non-conforming situation is lost pursuant to this Section, all of the buildings, activities and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one (1) apartment in a non-conforming apartment building for one hundred eighty (180) days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as a whole is continuously maintained. But if a non-conforming use is maintained in conjunction with a conforming use, discontinuance of a non-conforming use for the required period shall terminate the right to maintain it thereafter.

C. When a structure or operation made non-conforming by this regulation is vacant or discontinued at the effective date of this regulation, the one hundred eighty (180) day period for purposes of this Section begins to run on the effective date of this regulation.

D. The casual, intermittent, temporary or illegal use of land or buildings shall not be sufficient to establish the existence of a non-conforming use. The existence of a non-conforming use on the part of a lot or tract shall not be construed to establish a non-conforming use on the entire lot or tract.