[Ord. No. 10702, 2-18-2021]
Within the districts established by this Code, some lots, uses
of lands or structures, or combinations thereof may exist that were
lawful prior to the effective date or amendment of this Code, but
that are prohibited, regulated, or restricted under the terms of this
Code. The legitimate interests of those who lawfully established these
nonconformities are herein recognized by providing for the continuance
of such uses, subject to regulations limiting their completion, restoration,
reconstruction, extension, and/or substitution. Nevertheless, while
it is the intent of this Code that such nonconformities be allowed
to continue until removed, they should not be encouraged to survive,
unless otherwise allowed in this chapter or specifically addressed
in this Code.
[Ord. No. 10702, 2-18-2021]
(a)
Any use, building, structure, land, or premises that existed at the
time of the effective date of this Code that was legally established
under a previous code amendment or versions may be continued even
if such use, building, structure, or use of land does not conform
to the provisions of this Code.
(b)
Passage of this Code in no way legalizes any illegal uses existing
at the time of its adoption.
(c)
An applicant for any development review procedure that deals with
nonconformity shall bear the burden of proof in demonstrating that
the use was a legal nonconformity on the effective date of this Code.
[Ord. No. 10702, 2-18-2021]
(a)
At the time of application for a building permit, or request for
variance regarding a nonconforming lot, building, structure, or use,
the property owner shall submit sufficient evidence for the Director
of Public Services or Board of Adjustment, as applicable, to determine
that such lot, building, structure, or use was lawfully created or
established in accordance with the code regulations in existence at
that time.
(b)
Such documentation shall be retained as part of the applicable building
permit or variance application, as applicable.
[Ord. No. 10702, 2-18-2021]
(a)
When a property owner or authorized agent is granted approval of
a variance or administrative waiver for a nonconformity that addresses
the nonconformity, the use, structure, or lot shall no longer be considered
nonconforming. In no case shall the resolved nonconformity be expanded
or altered to create further nonconformities.
(b)
If a property owner or authorized agent is granted approval of a
variance or administrative waiver for a nonconformity that addresses
some nonconformities but additional nonconformities continue, the
use shall still be subject to the provisions of this article.
[Ord. No. 10702, 2-18-2021]
Where, at the time of adoption of this Code, lawful uses of
land or structures exist that would not be permitted by the regulations
of this Code, the uses may be continued so long as they remain otherwise
lawful, and provided that:
(a)
No such nonconforming uses 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 Code unless it complies with the provisions of § 25-95(e).
(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 Code.
(c)
No additional structure shall be constructed on a lot with a nonconforming use unless it complies with the provisions of § 25-96.
(d)
Change or substitution to another nonconforming use.
(1)
The lawful nonconforming use of an existing building, structure,
or lot can be continued even if such use is not permitted in the applicable
district.
(2)
If no structural alterations are made that increase the nonconformity,
a nonconforming use of a building or structure, or lot, may be changed
to another, less intensive nonconforming use with approval from the
Director of Public Services. The determination of whether the proposed
use is less intensive shall be based on the following criteria:
(i)
The change of the use will have a less deleterious effect on
the neighboring properties than does the existing use;
(ii)
The proposed use is allowed in the City and is listed in Table 35-1;
(iii)
The change of the use shall not create any additional
burden on the neighboring properties;
(iv)
The change of the use shall not substantially increase traffic
hazards or congestion;
(v)
The change of the use shall not substantially increase fire
hazards;
(vi)
The change of the use shall not adversely affect the general
welfare of the community;
(vii)
The change of the use shall not overtax public
utilities; and
(viii)
The change of the use shall satisfy all other
site development regulations that are applicable.
(3)
A nonconforming use cannot be changed to a more intensive nonconforming
use.
(4)
In order to assure compliance with any provisions required for
approval of a change of use and to assure maintenance of buffers and
landscaping, which mitigates the effect of the nonconforming use,
adequate provisions may be made in covenants running with the land
or other instruments that empower the City to enforce the covenants
in the event of failure of compliance. Any approval of a change of
use provided for herein does not alter the nonconformity of the use
or any remaining nonconforming characteristics set forth above. Further,
any approval of alteration or change of the use does not obligate
the City to grant further approvals, and any additional change of
the use shall require a new application, which application may, in
the discretion of the City, be considered from the perspective of
the aggregate impact of any proposed change of use and any previous
change of use previously permitted under the provisions of this Code.
In permitting such change, the Director of Public Services may prescribe
appropriate conditions and safeguards in accordance with other provisions
of this Code and when made a part of the terms under which the change
is granted.
(5)
Whenever a nonconforming use is changed to a less intensive
nonconforming use, such use shall not thereafter be changed to a more
intensive nonconforming use.
(6)
Whenever a nonconforming use is changed to a use permitted in
the district in which the lot is located, it shall cease to be considered
a nonconforming use. Upon such compliance, no nonconforming use shall
be made, resumed, or reinstated.
(e)
Expansion or alteration of a nonconforming use.
(1)
A nonconforming use of land shall not be physically enlarged, increased, nor extended to occupy a greater area of land than was occupied by the use at the time it became nonconforming, unless approved as a special use (See § 25-20.) or otherwise specified.
(2)
A nonconforming use of an existing structure may be extended throughout any parts of a building that were manifestly arranged or designed for such use at the time of adoption or amendment to this Code. However, no such use shall be extended to occupy any land outside such building not previously occupied by such nonconforming use unless approved as a special use (See § 25-20.) or otherwise specified.
(3)
No such building shall be enlarged or expanded to increase the nonconforming use unless approved as a special use. (See § 25-20.) No additional structures shall be constructed in connection with such nonconforming use, except as follows:
(i)
The construction of a detached accessory structure related to
a nonconforming residential use shall be permitted subject to complying
with the accessory use lot coverage and setback regulations of the
zoning district in which the nonconforming residential use is located.
(ii)
For nonconforming residential uses, nonhabitable attached garages,
porches and decks, although requiring a building permit shall not
be considered expansions of nonconforming uses. Such additions to
nonconforming residential uses shall comply with the lot coverage
and setback requirements of the zoning district in which the nonconforming
residential use is located.
(4)
In order to assure compliance with any provisions required for
approval of an expansion or alteration of a nonconforming use and
to assure maintenance of buffers and landscaping, which mitigates
the effect of the nonconforming use, adequate provisions may be made
in covenants running with the land or other instruments that empower
the City to enforce the covenants in the event of failure of compliance.
Any approval of expansion, extension, enlargement or alteration of
the use provided for herein does not alter the nonconformity of the
use or any remaining nonconforming characteristics set forth above.
Further, any approval of alteration or change of the use does not
obligate the City to grant further approvals, and any additional change
of the use shall require a new application, which application may,
in the discretion of the City, be considered from the perspective
of the aggregate impact of any proposed change of use and any previous
change of use previously permitted under the provisions of this Code.
In permitting such change, the Planning and Zoning Commission and
City Council may prescribe appropriate conditions and safeguards in
accordance with other provisions of this Code and when made a part
of the terms under which the change is granted.
(f)
Termination of nonconforming uses.
(1)
Termination of use through discontinuance.
(i)
When any nonconforming use of a building, structure, or premises,
or part thereof, is discontinued or abandoned for more than 180 consecutive
days, such discontinuance shall constitute voluntary abandonment,
and any new use shall conform to the regulations of the district in
which it is located.
(ii)
When any nonconforming use of land that does not occur within
a structure is discontinued or abandoned for more than 30 consecutive
days, such discontinuance shall constitute voluntary abandonment,
and any new use shall conform to the regulations of the district in
which it is located.
(iii)
A nonconforming use may not resume after the
Director of Public Services has determined that the use has been discontinued
or abandoned in accordance with the above provisions.
(iv)
The intent to continue a nonconforming use shall not be evidence
of its continuance.
(2)
Termination of use by damage or destruction.
(i)
If a building or structure devoted to a nonconforming use is
damaged or destroyed to any extent by cause unrelated or unattributable
to the owner, such structure and use may be reestablished on the same
lot, provided that it meets the same size in height and footprint,
as well as complying with the same setbacks as previously existed.
(ii)
Such reestablishment of the use shall require the issuance of
a building permit, and construction shall be required to commence
within 18 months of the damage or destruction unless an alternative
time limit is approved by the Board of Adjustment. Failure to comply
with this time limit shall result in forfeiture of nonconforming status,
and any new use shall comply with this Code.
[Ord. No. 10702, 2-18-2021]
A nonconforming building, structure, or site may continue to
be used or occupied by a use permitted in the applicable zoning district
so long as it remains otherwise lawful and does not constitute a public
nuisance, subject to the following provisions:
(a)
Any nonconforming structure or site may be enlarged, moved, or altered;
provided, however, that no such enlargement, move, or alteration shall
either create an additional nonconformity or increase the degree of
the existing nonconformity of all or any part of such structure or
site, unless otherwise specified in this Code.
(b)
A nonconforming structure shall not be relocated in whole or in part
to any other location on the same or any other lot unless the entire
structure shall thereafter conform to the regulations of the applicable
zoning district after being relocated.
(c)
The principal use of a nonconforming building may be changed to any
other use permitted in the applicable zoning district as long as the
new use complies with all regulations of this Code specified for such
use, except the regulations to which the building did not conform
prior to the change in use.
(d)
The governmental acquisition of a portion of a lot for a public purpose
that results in reduction in a required yard or building setback below
that required in the applicable zoning district shall not render a
structure nonconforming.
(e)
Damage or destruction of a nonconforming structure containing a conforming
use.
(1)
If a nonconforming structure is damaged or destroyed to any
extent by cause unrelated or unattributable to the owner, such structure
may be reestablished on the same lot, provided that it meets the same
size in height and footprint, as well as complying with the same setbacks
as previously existed.
(2)
Such reestablishment of the structure shall require the issuance
of a building permit, and construction shall be required to commence
within 18 months of the damage or destruction unless an alternative
time limit is approved by the Board of Adjustment. Failure to comply
with this time limit shall result in forfeiture of nonconforming status,
and any new structure shall comply with this Code.
(3)
If the owner voluntarily removes the structure or reduces the
nonconformity that has not been damaged or destroyed, that owner shall
not be permitted to rebuild the structure to the original height,
size, or setback.
(f)
Nonconforming site conditions existing at the time of site plan review. If a nonconforming site condition exists when a site plan is required pursuant to § 25-19, then such site condition must be brought into compliance with district regulations, unless the Planning and Zoning Commission and City Council determine that such conformance cannot be reasonably achieved because of existing site conditions. In such case, the City Council may approve a site plan that reduces the existing nonconforming site condition to the maximum extent practicable.
[Ord. No. 10702, 2-18-2021]
A nonconforming lot of record may be used in accordance with
this section.
(a)
If an existing lot of record is occupied by conforming structures,
such structures shall be maintained and may be repaired, modernized
or altered, provided that:
(b)
In any residential zoning district, a single-family dwelling and
its customary accessory uses may be erected on a vacant single lot
of record if said lot meets the definition of a buildable lot.
(c)
A vacant nonconforming lot in all other districts may be used for
any use permitted in the district in which it is located when the
development of such lot meets all requirements of the district in
which it is located, including the maximum lot coverage and minimum
setback requirements, except for the minimum lot area and lot width
requirements. No use that requires a greater lot area than the established
minimum lot area for a particular district shall be permitted on a
nonconforming lot.
(d)
If a vacant nonconforming lot in any district adjoins one or more
lots in common ownership on the effective date of this Code, or applicable
amendment thereto, such lots shall be replatted to create lots of
greater conformity to the minimum lot area and lot width of the applicable
zoning districts.
[Ord. No. 10702, 2-18-2021]
(a)
Ordinary repairs, or repair or replacement of nonbearing walls, fixtures,
wiring, or plumbing may be performed on a nonconforming structure
or on any portion of a structure that contains a nonconforming use,
provided that the cubic content shall not be increased and no structural
parts shall be replaced except when required by law to restore such
building or structure to a safe condition or to make the building
or structure conform to the regulations of the district in which it
is located.
(b)
Nothing in this section shall be deemed to prevent the strengthening
or restoring to safe condition of any building, or part thereof, declared
to be unsafe by any official charged with protecting the public safety.
Where appropriate, a building permit for such activities shall be
required.
