A "nonconformance" is a building, structure,
sign or parcel of land, or use thereof, which was lawfully existing
at the time of the adoption or amendment of this chapter and not in
conformity with the provisions of such ordinance or amendment.
A building, structure, sign or parcel of land,
or use thereof, was lawfully existing or lawfully established if it
was in existence prior to October 21, 1966, or was established in
conformance with the zoning ordinance in effect at the time the use
was first established. For the purposes of this chapter, the placement
or use of a sign, with or without any other structure or use, is considered
a use of land. A lot was lawfully existing or lawfully established
if it was of record or shown on a recorded plat prior to October 21,
1966, and was separately owned. Any building, structure, sign or parcel
of land, or use thereof, that was not lawfully existing or established
at the time of the adoption or amendment of this chapter is not protected
by this section.
A lawfully established use of land, building or structure which is not a permitted use in the zoning district in which it is located, as set forth in Article II, is nonconforming by use.
A lawfully established building, structure or parcel of land not in compliance with the dimensional regulations of this chapter is nonconforming by dimension. Dimensional regulations include all regulations of this chapter, other than those pertaining to the permitted uses. A lawfully established building, structure, parcel of land, or use thereof, not in compliance with the parking regulations of this chapter, as set forth in Article IX, is also nonconforming by dimension. A lawfully existing or lawfully established lot that is not in compliance with the dimensional regulations of this chapter, including but not limited to those regulations for minimum lot size, lot width or lot frontage (also known as a "substandard lot of record"), is also nonconforming by dimension.
A building or structure containing more dwelling
units than are permitted by the use regulations of this chapter shall
be nonconforming by use. A building or structure containing a permitted
number of dwelling units by the use regulations of this chapter, but
not meeting the lot area per dwelling unit regulations, shall be nonconforming
by dimension.
A building, structure or parcel of land nonconforming
by more than one factor, such as by use, dimension, area or parking,
shall comply with all regulations of this Article. Where the regulations
conflict, the most restrictive regulations shall apply.
A nonconforming building, structure, sign or
parcel of land, or the use thereof, which exists by virtue of a variance
or a special use permit (or a special exception) granted by the Board,
shall not be considered a nonconformance for the purposes of this
article and shall not acquire the rights of this article. Rather,
such building, structure, sign or parcel of land, or use thereof,
shall be considered a use by variance or a use by special use permit
and any moving, addition, enlargement, expansion, intensification
or change of such building, structure, sign or parcel of land, or
use thereof, to any use other than a permitted use or other than in
complete conformance with this chapter, shall require a further variance
or special use permit from the Board.
Nonconforming uses are incompatible with and
detrimental to permitted uses in the zoning districts in which they
are located. Nonconforming uses cause disruption of the comprehensive
land use pattern of the City, inhibit present and future development
of nearby properties and confer upon their owners a position of unfair
advantage. It is intended that existing nonconforming uses shall not
justify further departures from this chapter for themselves or for
any other properties.
A.
Treatment in residential zones. Nonconforming uses
in residential zones are to be treated in a stricter fashion than
nonconforming uses located in nonresidential zones. Due to the disruption
which nonconforming uses cause to the peace and tranquillity of a
residential zone, nonconforming uses therein should be eventually
abolished or reduced to total conformity over time.
B.
Continuance of use. Nothing in this chapter shall
prevent or be construed to prevent the continuance of a nonconforming
use of any building or structure for any purpose to which such building
or structure was lawfully established.
C.
Maintenance and repair. A building or structure containing
a nonconforming use may be maintained and repaired except as otherwise
provided in this Article.
D.
Moving. A building or structure containing a nonconforming
use shall not be moved in whole or in part either on or off the lot
on which it is located unless the use contained within such building
or structure is made to conform to the use regulations of the zone
in which it is relocated.
E.
Addition and enlargement. A building or structure
containing a nonconforming use shall not be added to or enlarged in
any manner, including any addition or enlargement of floor area or
volume, unless the use contained within such building or structure,
including such addition and enlargement, is made to conform to the
use regulations of the zone in which it is located.
F.
Expansion. A nonconforming use of a building or structure
shall not be expanded into any other portion of the building or structure
which contains a conforming use or which is unoccupied or unused.
G.
Intensification. A nonconforming use of a building, structure or land shall not be intensified in any manner. Intensification shall include but not be limited to increasing hours of operation, increasing the number of dwelling units or increasing the seating capaCity of a place of assembly. However, this section shall not prohibit the reconfiguration of existing dwelling units within a building or structure so long as such reconfiguration complies with the requirements of Subsection F, above.
H.
Change of use.
[Amended 10-23-1997 by Ch. No. 2470]
(1)
Residential zones. Within any residential zone, a nonconforming use shall only be changed to a permitted use or within the same use group number listed under § 410-12, Table of Use Regulations. A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use.
(2)
Nonresidential zones. Within any nonresidential zone, a nonconforming use may be changed to a permitted use, within the same use group number listed under § 410-12, Table of Use Regulations, or may be changed to a different nonconforming use by special use permit in accordance with § 410-59C(1). A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use.
I.
Abandonment. If a nonconforming use is abandoned,
it may not be reestablished. Abandonment of a nonconforming use shall
consist of some overt act, or failure to act, which would lead one
to believe that the owner of the nonconforming use neither claims
nor retains any interest in continuing the nonconforming use unless
the owner can demonstrate an intent not to abandon the use. An involuntary
interruption of nonconforming use, such as by fire and natural catastrophe,
does not establish the intent to abandon the nonconforming use. However,
if any nonconforming use is halted for a period of one year or more,
the owner of the nonconforming use will be presumed to have abandoned
the nonconforming use, unless that presumption is rebutted by the
presentation of sufficient evidence of intent not to abandon the use.
Buildings or structures that are nonconforming
by dimension are likely to cause overcrowding and congestion in the
neighborhoods, contribute to unhealthy conditions and are contrary
to the purposes of this chapter. Buildings or structures that are
nonconforming by dimension cause disruption of the comprehensive land
use pattern of the City, inhibit present and future development of
nearby properties and confer upon their owners a position of unfair
advantage. It is intended that existing buildings or structures that
are nonconforming by dimension shall not justify further departures
from this chapter for themselves or for any other property.
A.
Continuance. Nothing in this chapter shall prevent
or be construed to prevent the continuance of the use of any building
or structure nonconforming by dimension for any purpose to which such
building or structure was lawfully established.
B.
Maintenance and repair. A building or structure nonconforming
by dimension may be maintained and repaired except as otherwise provided
in this article.
C.
Moving. A building or structure which is nonconforming
by dimension shall not be moved in whole or in part to any other location
on the lot in which it is located unless every portion of such building
or structure is made to conform to all of the dimensional requirements
of the zone in which it is located.
D.
Addition and enlargement. A building or structure
which is nonconforming by dimension shall not be added to or enlarged
in any manner, unless such addition or enlargement conforms to all
of the dimensional regulations of the zone in which the building or
structure is located or unless the addition or enlargement would result
in the squaring off of an existing building within an existing nonconforming
setback, provided that the existing nonconformity applies to more
than 50% of the structure.
[Amended 9-21-2006 by Ch. No. 2825]
E.
Expansion. A conforming use within a building or structure
which is nonconforming by dimension (other than by lot area per dwelling
unit) may be expanded into any other portion of the building or structure
which is unoccupied or unused.
F.
Intensification. A conforming use within a building
or structure which is nonconforming by dimension may be intensified,
provided that such intensification is in conformance with the use
and lot area per dwelling unit regulations, if applicable, for the
zone in which it is located.
G.
Change in use. A conforming use within a building
or structure which is nonconforming by dimension may be changed to
any other conforming use.
H.
Demolition. A building or structure nonconforming
by dimension, if voluntarily demolished, shall not be reconstructed,
unless it conforms with the dimensional regulations of the zone in
which it is located. Such voluntary demolition shall be deemed to
be an abandonment. If such building or structure is involuntarily
demolished, destroyed or damaged, it may be repaired or rebuilt to
the same size and dimension as previously existed.
A.
Continuance. The lawfully established nonconforming
use of land, where no building is involved, may be continued, provided
that no such nonconforming use of land shall in any way be expanded
or intensified either on the same or adjoining property.
B.
Change of use. The nonconforming use of land shall
not be changed to a different use, unless such use conforms to the
use regulations of the zone in which it is located.
C.
Abandonment. If a nonconforming use of land is abandoned,
it may not be reestablished. If any nonconforming use of land is halted
for a period of one year or more, the owner of the nonconforming use
will be presumed to have abandoned the nonconforming use, unless that
presumption is rebutted by the presentation of sufficient evidence
of intent not to abandon the use of land.
[Amended 10-23-1997 by Ch. No. 2470]
A.
Enlargement of undersized lots. Lawfully established
lots which have less than the minimum area requirements may be maintained
and may be changed by adding additional land to such lots without
prejudice to the rights of the owner of such lots pursuant to the
provisions of this article.
B.
Merger of substandard lots.
(1)
If two or more adjacent lots of record or combinations
of lots of record are in single or undivided ownership at the time
of the adoption of this chapter or future amendment, and if all or
part of such lots of record do not conform in the regulations for
street frontage or area in effect for the zone involved, such lots
of record shall be considered as a single lot for the purposes of
this chapter. No such lot shall be divided for use, sale or other
transfer of ownership without City Planning Commission approval or
Joint Planning Commission as appropriate approval. The merger of lots
shall not be required when the substandard lot of record has an area
equal to or greater than the area of 50% of the lots within 200 feet
of the subject lot, as confirmed by the Director.
[Amended 9-21-2006 by Ch. No. 2825; 12-20-2023 by Ch. No. 3287]
(2)
If two or more adjacent lots of record or combinations
of lots of record are in single or undivided ownership at the time
of the adoption of this chapter or future amendment, and if all or
part of such lots of record are improved and do not conform in the
regulations for street frontage or area in effect for the existing
use within the zone involved, such lots of record shall be considered
as a single lot for the purposes of this chapter. No such lot shall
be divided for use, sale or other transfer of ownership without City
Planning Commission or Joint Planning Commission as appropriate approval.
The merger of lots shall not be required when the substandard lot
of record has an area equal to or greater than the area of 50% of
the lots within 200 of the subject lot, as confirmed by the Director.
[1]
Editor's Note: This Ch. No. 2881 also renumbered
former Subsection B(2) as Subsection B(3).
(3)
However, any merged lot in the RS, RT and RM District
may be subdivided, with City Planning Commission approval, into as
many five-thousand-square-foot lots as possible, and if any merged
lot in the RL District may be subdivided, with City Planning Commission
approval, into as many nine-thousand-square-foot lots as possible.
Although the City Planning Commission shall have the power to approve
an equal number of lots as would be created by such mechanism above,
any and all lot area which remains after the subdivision of the merged
lot shall not be construed as an existing nonconforming lot of record
but, rather, such remaining lot area shall, without exception, be
distributed evenly over such newly created legal and conforming lots.
(4)
A substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. The setback, frontage, and/or lot width requirements for a structure under this section shall be reduced and the maximum building coverage requirements shall be increased by the same proportion as the lot area of the substandard lot is to the minimum lot area requirement of the zoning district in which the lot is located. All proposals exceeding such reduced requirement shall proceed with a modification request in accordance with § 410-97.1 or a variance request in accordance with Article XIII of this chapter.
[Added 12-20-2023 by Ch. No. 3287]
C.
Notwithstanding the failure of a single substandard lot of record or contiguous lots of record to meet the dimensional and/or quantitative requirements of this chapter, and/or frontage or other access requirements applicable to the district as stated in this chapter, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. The setback, frontage. and/or lot width requirements for a structure under this section shall be reduced and the maximum building coverage requirements shall be increased by the same proportion as the lot area of the substandard lot is to the minimum lot area requirement of the zoning district in which the lot is located. All proposals exceeding such reduced requirement shall proceed with a modification request under § 410-97.1 or a dimensional variance request under Article XII of this chapter, whichever is applicable.
[Added 12-20-2023 by Ch. No. 3287]
A building or structure is considered nonconforming by parking if the lawfully established use of the building or structure does not meet the parking requirements of Article IX.
A.
Addition, enlargement, expansion and intensification of nonresidential uses. A nonresidential building or structure or use of land nonconforming by parking may be added to, enlarged, expanded or intensified, provided that additional parking space is supplied to meet the requirements of Article IX for such addition, enlargement, expansion or intensification.
B.
Addition, enlargement, expansion and intensification of residential uses. Any residential building or structure nonconforming by parking may not be added to, enlarged, expanded or intensified unless brought into full compliance with the parking requirements of Article IX, such that sufficient parking is provided for the entire structure, including the original portion and the addition, enlargement, expansion or intensification.
C.
Change of use. A building or structure nonconforming
by parking may be changed to a different use, other than a residential
use, pursuant to all other provisions of this chapter, provided that
such new use meets the following parking requirements. The number
of additional parking spaces required shall be the difference between
the number of spaces required for the proposed use and the number
of spaces required for the previous use. In the event that the new
use requires less parking spaces than the previous use, no additional
parking spaces need be supplied. However, none of the existing parking
spaces shall be eliminated unless the total number of spaces required
by this chapter for the new use are provided.
