[Ord. No. 659 §1, 5-2-2011]
Unless otherwise specifically provided or unless clearly required
by the context, the words and phrases defined in this Section shall
have the meaning indicated when used in this Article.
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.
Whenever this Article refers to the effective date of this
Chapter, the reference shall be deemed to include the effective date
of any amendments to this Chapter if the amendment, rather than this
Chapter as originally adopted, creates a non-conforming situation.
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.
A legally existing building which fails to comply with the
regulations set forth in this Chapter applicable to the zone in which
this building is located.
A lot existing at the effective date of this Chapter (and
not created for the purposes of evading the restrictions of this Chapter)
that does not meet the minimum area requirement of the district in
which the lot is located.
Any structure, development, or undertaking that is incomplete
at the effective date of this Chapter and would be inconsistent with
any regulation applicable to the district in which it is located if
completed as proposed or planned.
A situation that occurs when, on the effective date of this Chapter, 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 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 acreage requirements, because structures exceed maximum height limitations, because the relationship between existing buildings and the land (in such matters as density and setback requirements) is not used for purposes made unlawful by this Chapter. Non-conforming signs shall not be regarded as non-conforming situations for purposes of this Article but shall be governed by the provisions of Article XIX, Section 400.835.
A non-conforming situation that occurs when property is used
for a purpose or in a manner made unlawful by the use regulations
applicable to the 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 activity
associated with running a bakery in a residentially zoned area is
a non-conforming use.)
[Ord. No. 659 §1, 5-2-2011]
[Ord. No. 659 §1, 5-2-2011]
A.
When a non-conforming lot can be used in conformance with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in Article XVII, Section 1, then the lot may be used as proposed just as if it were conforming. However, no use (e.g., a two-family residence) that requires a greater lot size than the established minimum lot size for a particular zone is permissible on a non-conforming lot.
B.
When the use proposed for a non-conforming lot is one that is conforming in all other respects but the applicable setback requirements (Article XVII, Section 4) cannot reasonably be complied with, then the entity authorized by this Chapter to issue a permit for the proposed use (the City Administrator or the Board of Aldermen) may allow deviations from the applicable setback requirements if it finds that:
1.
The proposed property cannot be reasonably 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 that serves the minimal needs of the use proposed for the non-conforming lot 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.
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 to 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.
[Ord. No. 659 §1, 5-2-2011]
A.
Except
as specifically provided in this Section, no person may engage in
an activity that causes an increase in the extent of non-conformity
of a 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:
B.
Subject to Subsection (D), a non-conforming use may be extended throughout any portion of a completed building that, when the use was made non-conforming by this Chapter, was manifestly designed or arranged to accommodate such use. However, subject to Article IX, Section 400.425 (Completion Of Non-Conforming Projects), a non-conforming use may not be extended to additional buildings or to land outside the original building.
C.
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 to only changes in the degree of
activity rather than changes in kind and no violations of other paragraphs
of this Section occur.
D.
Notwithstanding Subsection (A), any structure used for single-family residential purposes and maintained as a non-conforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new non-conformities or increase the extent of existing non-conformities with respect to such matter as setback and parking requirements. This paragraph is subject to the limitations stated in Article IX, Section 400.420 (Abandonment and Discontinuance of Non-Conforming Situations).
E.
Notwithstanding Subsection (A), whenever:
1.
There exists a lot with one (1) or more structures on it, and
2.
A change in use that involves any enlargement of a structure is proposed
for such lot, and
3.
The parking or loading requirements of Article XVII 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, then 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, then 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 additional land, and shall also be required to obtain satellite parking in accordance with Article XVII.
a.
Parking requirements cannot be satisfied on the lot with respect
to which the permit is required; and
b.
Such satellite parking is reasonably available.
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If such satellite parking is not reasonably available at the
time the zoning or conditional use approval is granted, then 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.
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[Ord. No. 659 §1, 5-2-2011]
A.
Minor
repairs to and routine maintenance of property where non-conforming
situations exist are permitted and encouraged. Major renovations,
i.e., work estimated to cost more than twenty-five percent (25%) of
the appraised valuation of the structure to be renovated may be done
only in accordance with a approved use permit issued pursuant to this
Section.
B.
If a structure located on a lot where a non-conforming situation exists is damaged to an extent that the costs of repair or replacement would exceed twenty-five percent (25%) of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a approved use permit issued pursuant to this Section. This Subsection does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to an approved use permit just as they may be enlarged or replaced as provided in Article IX, Section 400.405.
C.
1.
The "cost" of renovation or repair or replacement shall mean the
fair market value of the materials and services necessary to accomplish
such renovations, repair, or replacement.
3.
The "appraised valuation" shall mean either the
appraised valuation for property tax purposes, updated as necessary
by the increase in the consumer price index since the date of the
land valuation, or the valuation determined by a professionally recognized
property appraiser.
D.
The
City Administrator shall issue a permit authorized by this Section
if he finds that, in completing the renovation, repair or replacement
work:
2.
The permittee will comply to the extent reasonably possible with
all provisions of this Chapter applicable to the existing use (except
that the permittee shall not lose his right to continue a non-conforming
use).
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Compliance with a requirement of this Chapter 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 requirements,
as paved parking, does not constitute grounds for finding that compliance
is not reasonably possible.
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[Ord. No. 659 §1, 5-2-2011]
A.
A change in use of property (where a non-conforming situation exists) that is sufficiently substantial to require a new approved use, conditional use, or preliminary plat approval in accordance with Article IV, Section 400.145, may not be made except in accordance with Subsections (B) through (D). However, this requirement shall not apply if only a sign permit is needed.
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 Chapter 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 Chapter is achieved, the property may not revert to its
non-conforming status.
C.
If
the intended change in use is to a principal use that is permissible
in the district where the property is located, but all of the requirements
of this Chapter applicable to that use cannot reasonably be complied
with, then the change is permissible if the entity authorized by this
Chapter to issue a permit for that particular use (the City Administrator)
issues a permit authorizing the change. This permit may be issued
if the permit-issuing authority finds, in addition to any other findings
that may be required by this Chapter, that:
1.
The intended change will not result in violation of this Chapter,
and
2.
All of the applicable requirements of this Chapter, that can reasonably
be complied with, will be complied with. Compliance with a requirement
of this Chapter 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.
If
the intended change in use is to another principal use that is also
non-conforming, then the change is permissible if the entity authorized
by this Chapter to issue a permit for that particular use (City Administrator
or Board of Aldermen) issues a permit authorizing the change. The
permit-issuing authority may issue the permit if it finds, in addition
to other findings that may be required by this Chapter, that:
1.
The use requested is one that is permissible in some zoning district
with either an approved use or conditional use approval, and
2.
All of the conditions applicable to the permit authorized in Subsection (C) of this Section 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.
[Ord. No. 659 §1, 5-2-2011]
B.
If
the principal activity on property where a non-conforming situation
other than a non-conforming use exists is:
1.
Discontinued for a consecutive period of one hundred eighty (180)
days, or
2.
Discontinued for any period of time without a present intention of
resuming that activity, then that property may thereafter be used
only in conformity with all of the regulations applicable to the pre-existing
use unless the entity with authority to issue a permit for the intended
use issues a permit to allow the property to be used for this purpose
without correcting the non-conforming situations. This permit may
be issued if the permit-issuing authority finds that eliminating a
particular non-conformity is not reasonably possible (i.e. cannot
be accomplished 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). The permit shall specify which
non-conformities need not be corrected.
C.
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.
D.
When
a structure or operation made non-conforming by this Chapter is vacant
or discontinued at the effective date of this Chapter, the one hundred
eighty (180) day period for purposes of this Section begins to run
on the effective date of this Chapter.
[Ord. No. 659 §1, 5-2-2011]
A.
All
non-conforming projects approved before the effective date of this
Chapter can be continued. If a development is designed to be completed
in stages, this Subsection shall apply only to the particular phase
under construction.
B.
When it appears from the developer's plans that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under Subsection (B). The permit-issuing authority shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a non-conforming project, consider the following in addition to other relevant factors:
1.
Whether any plans prepared or approved regarding incomplete phases
constitute conceptual plans only or construction drawings based upon
detailed surveying, architectural, or engineering work.
2.
Whether any improvements, such as streets or utilities, have been
installed in phases not yet completed.
3.
Whether utilities and other facilities installed in completed phases
have been constructed in such a manner or location or with approved
but uncompleted phases, that the investment in such utilities or other
facilities cannot be recouped if such approved but uncompleted phases
are constructed in conformity with existing regulations.
