ARTICLE X Nonconformities

This Article X regulates and limits the continued existence of uses, structures, lots, and signs established prior to the effective date of this code that do not conform to the regulations of this code applicable in the zoning districts in which such uses, structures, lots, and signs are located.

The zoning districts established by this code are designed to guide the future use of land within the Village by encouraging the development or maintenance of desirable residential, business, and office areas with appropriate groupings of compatible and related uses and thus to promote and protect the public health, safety, and general welfare. The continued existence of nonconformities is frequently inconsistent with the purposes for which such districts are established and thus the gradual elimination of such nonconformities is generally desirable.

General scope and scheme of regulation.

Separate restrictions are established for nonconforming uses of land and nonconforming uses of structures designed for a permitted use, nonconforming uses of structures not designed for a permitted use, nonconforming structures, nonconforming lots of record, and nonconforming signs. The degree of restriction made applicable to each category of nonconformity is generally related to the degree of incompatibility with permitted uses and the amount of investment typically associated with nonconformities of that type. Pursuant to § 260-1153 of this code, provision is made for relief from some of the restrictions of this Article X when practical difficulties exist.

In the cases of nonconforming uses of land, nonconforming uses in structures designed for a permitted use, and nonconforming signs, the degree of incompatibility is frequently great, the investment is comparatively small, and the economic life is short. In these cases, elimination of the nonconformity is required after a relatively short, but reasonable, amortization period. In the case of nonconforming uses in structures not designed for any conforming use, the degree of incompatibility is also frequently great, but so too is the investment and economic life of the structure. In such cases, while eventual elimination is required, a more extended period is allowed in which to amortize the investment. While the regulations of this Article X related to all other nonconformities allow such nonconformities to continue without specific limitations of time, they restrict further investments that would make more permanent their location in inappropriate districts.

Exception for repairs pursuant to public order. Nothing in this Article X shall be deemed to prevent the strengthening or restoration to a safe condition of a structure in accordance with an order of a public official who is charged with protecting the public safety and who declares such structure to be unsafe and orders its restoration to a safe condition, provided such restoration is not otherwise in violation of the various provisions of this Article X prohibiting the repair or restoration of partially damaged or destroyed structures or signs.

Nonconforming accessory uses and structures. No use, structure, or sign that is accessory to a principal nonconforming use or structure shall continue after such principal use or structure shall have been terminated, unless it shall thereafter conform to all the regulations of the zoning district in which it is located.

Inventories and certificates of nonconformity.

Burden of owner to establish legality of nonconformity. The burden of establishing that any nonconformity is lawfully existing under the provisions of this Article X shall, in all cases, be upon the owner of such nonconformity and not upon the Village.

Inventory and notice of nonconforming uses and signs subject to termination. Within one year after the effective date of this code, or any amendment hereto creating new nonconformities, or such longer period as may be required, the Building Commissioner shall inventory all nonconforming uses and determine the names and addresses of the owners of record thereof and shall also inventory all nonconforming signs and determine the names and addresses of the owners thereof or, in any case where such a determination is impractical, the owner or lessee of the premises on which such sign is located. For each such nonconformity inventoried, the Building Commissioner shall determine the nature and extent of the nonconformity and the date, if any, on which such nonconformity is required to be terminated pursuant to the provisions of this Article X. Upon making such determination, the Building Commissioner shall notify the aforesaid owner or lessee in writing of his or her determination. Such inventory and notices shall be kept on file by the Building Commissioner and shall be a matter of public record.

Compilation of the inventory required pursuant to this paragraph and giving notice pursuant to this paragraph shall not be deemed conditions precedent to the running of any amortization period specified in this Article X, nor shall the failure of the Building Commissioner to carry out such tasks in any manner relieve the owner of a nonconformity of his or her duty to terminate such nonconformity in accordance with the provisions of this Article X.

The determinations of the Building Commissioner made pursuant to this paragraph shall be subject to appeal to the Zoning Board of Appeals in the same manner as other rulings and interpretations.

(3)

Certificate of occupancy for legal nonconformities. The owner of any nonconforming use, structure, lot, or sign may at any time apply to the Building Commissioner for a certificate of occupancy to establish the legality of such nonconformity as of a specified date. Such application shall be filed and processed pursuant to the provisions of § 260-1142 of this code.

Any person receiving a notice pursuant to Paragraph E(2) of this section shall be required, within 60 days of the receipt of such notice, to apply to the Building Commissioner for a certificate of occupancy with respect to the nonconformity identified in said notice. Unless an appeal from the determination of the Building Commissioner contained in said notice has been filed, such application shall be accompanied by an affidavit admitting such determination. Such affidavit shall be kept on file by the Building Commissioner and shall be a matter of public record.

§ 260-1002 Nonconforming uses of land and nonconforming uses in structures designed for permitted use.

If, upon reviewing an application for a certificate of occupancy for a nonconformity, the Building Commissioner shall determine that the use, structure, lot, or sign in question was lawfully existing at the time of the adoption of the provision creating the nonconformity in question and remains lawfully existing subject only to such nonconformity at the time of such application, and that any required affidavit is in order, the Building Commissioner shall issue a certificate of occupancy evidencing such facts and setting forth the nature and extent of the nonconformity and the date, if any, upon which such nonconformity is required to be terminated; otherwise, the Building Commissioner shall decline to issue such certificate and shall declare such building, structure, lot, or sign to be in violation of this code.

Authority to continue.

Except as provided in Subsection I of this section, any lawfully existing nonconforming use not involving the use of a structure, or involving only a structure that is accessory to a nonconforming use of land, or located in a structure designed for a use permitted in the district in which it is located may be continued so long as it remains otherwise lawful, subject to the regulations contained in Subsections B through H of this section and in Subsections D and E of § 260-1001 of this code.

For purposes of this section, any structure that is used in connection with a nonconforming use of land and that has an assessed value of less than $5,000 on the effective date of this code or any amendment hereto creating such nonconformity shall be considered to be a structure accessory to a nonconforming use of land.

Ordinary repair and maintenance. Normal maintenance and incidental repair or replacement, and installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring, or plumbing, may be performed on any structure that is accessory to a nonconforming use of land or that is designed for a permitted use but devoted in whole or in part to a nonconforming use; provided, however, that this subsection shall not be deemed to authorize any violation of Subsections C through I of this section.

Structural alteration. No structure that is accessory to a nonconforming use of land or that is designed for a permitted use and devoted in whole or in part to a nonconforming use shall be structurally altered unless the use thereof shall thereafter conform to the use regulations of the zoning district in which it is located. No such alteration shall create a new parking, loading, bulk, yard, or space nonconformity or increase the degree of any existing parking, loading, bulk, yard, or space nonconformity of such structure. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(1) and § 260-905B(1) of this code shall control.

Enlargement of structure. No structure that is accessory to a nonconforming use of land or that is designed for a permitted use and devoted in whole or in part to a nonconforming use shall be enlarged or added to in any manner, including the interior addition of floor area, unless the use of such structure shall thereafter conform to the use regulations of the district in which it is located. No such enlargement shall create any new parking, loading, bulk, yard, or space nonconformity or increase the degree of any existing parking, loading, bulk, yard, or space nonconformity of such structure. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(10 and § 260-905B(1) of this code shall control.

Extension of use. A nonconforming use of land or of a structure that is accessory to a nonconforming use of land or a nonconforming use in a structure designed for a permitted use shall not be extended, expanded, enlarged, or increased in intensity. Such prohibited activity shall include, without being limited to:

An extension of such use, including its accessory uses, to any structure or land area other than that occupied by such nonconforming use on the effective date of this code or any amendment hereto that causes such use to become nonconforming; and

An extension of such use, including its accessory uses, within a building or other structure to any portion of the floor area that was not occupied by such nonconforming use on the effective date of this code or any amendment hereto that causes such use to become nonconforming; and

(3)

An extension of the hours of operation of such use beyond the normal hours of operation on the effective date of this code or any amendment hereto that causes such use to become nonconforming.

Moving. No structure that is accessory to a nonconforming use of land or that is designed for a permitted use and devoted in whole or in part to a nonconforming use shall be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot, unless the entire structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located after being so moved. No nonconforming use of land shall be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot, unless such use shall thereafter conform to all regulations of the zoning district in which it is located after being so moved.

Change in use. A nonconforming use of land not involving a structure or involving only a structure that is accessory to the nonconforming use of land or a nonconforming use in a structure designed for a use permitted in the district in which it is located shall not be changed to any use other than a use permitted in the zoning district in which the use or structure is located. When such a nonconforming use has been changed to a permitted use, it shall not thereafter be changed back to any nonpermitted use. For purposes of this Subsection G, a use shall be deemed to have been so changed when an existing nonconforming use shall have been terminated and a permitted use shall have commenced and continued for a period of five days. Any change of use in violation of this subsection shall be deemed to be an abandonment of the lawfully existing nonconforming use.

Damage or destruction.

Any structure that is accessory to a nonconforming use of land or that is designed for a permitted use and devoted in whole or in part to a nonconforming use and that is damaged or destroyed, by any means, to the extent of more than 25% of the cost of replacement of such structure new shall not be restored unless the use of such structure shall thereafter conform to the use regulations of the zoning district in which it is located and unless such restoration is accomplished without creating any new parking, loading, bulk, yard, or space nonconformity or increasing the degree of any parking, loading, bulk, yard, or space nonconformity existing prior to such damage or destruction. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(1) and § 260-905B(1) of this code shall control.

When any such structure is damaged or destroyed by any means not within the control of the owner thereof to the extent of 25% or less of the cost of replacement of the structure new, repair or restoration of such structure may be made and the nonconforming use may continue, subject to the regulations of this § 260-1002; provided, however, that no repairs or restorations shall be made that would create any new parking, loading, bulk, yard, or space nonconformity or increase the degree of any parking, loading, bulk, yard, or space nonconformity existing prior to such damage or destruction, nor shall any repairs or restoration be made except in conformity with the applicable zoning district regulations unless a certificate of zoning compliance is obtained and restoration is actually begun within one year after the date of such partial damage or destruction and is diligently pursued to completion. In no event shall any damage or destruction to such a structure by means within the control of the owner be repaired or restored except in accordance with Subsections B, C, and D of this section.

Termination of certain uses.

Termination by abandonment.

When a nonconforming use of land not involving a structure or involving only a structure that is accessory to the nonconforming use of land or when a nonconforming use of part or all of a structure that was designed for a use that is permitted in the zoning district in which such structure is located is discontinued or abandoned for a period of three consecutive months, regardless of any intent to resume or not to abandon such use, such use shall not thereafter be reestablished or resumed. Any subsequent use or occupancy of such land or structure shall comply with the use regulations of the zoning district in which such land or structure is located.

Any period of such discontinuance caused by government action, strikes, material shortages, or acts of God, and without any contributing fault by the nonconforming user, shall not be considered in calculating the length of discontinuance for purposes of this paragraph.

§ 260-1003 Nonconforming uses in structures not designed for permitted use.

Termination by amortization. Any nonconforming use of land not involving a structure or involving only a structure that is accessory to the nonconforming use of land or any nonconforming use in a structure designed for a use permitted in that district that has not been terminated pursuant to any other provision of this code shall be terminated no later than five years after the effective date of this code, or any amendment hereto creating such nonconforming use, as the case may be.

Authority to continue. Except as provided in Subsection I of this section, any lawfully existing nonconforming use located in a structure not designed or intended, in whole or in part, for a use permitted in the district in which it is located may be continued so long as it remains otherwise lawful, subject to the regulations contained in Subsections B through H of this section and in Subsections D and E of § 260-1001 of this code.

Ordinary repair and maintenance. Normal maintenance and incidental repair or replacement, and installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring, or plumbing, may be performed on any structure devoted in whole or in part to a nonconforming use and not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located; provided, however, that this subsection shall not be deemed to authorize any violation of Subsections C through I of this section.

Structural alteration. No structure devoted in whole or in part to a nonconforming use and not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located shall be structurally altered unless the entire structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located. No such alteration shall create a new parking, loading, bulk, yard, or space nonconformity or increase the degree of any existing parking, loading, bulk, yard, or space nonconformity of such structure. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(1) and § 260-905B(1) of this code shall control.

Enlargement of structure. No structure devoted in whole or in part to a nonconforming use and not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located shall be enlarged or added to in any manner, including the interior addition of floor area, unless the entire structure and the use thereof shall thereafter conform to all the regulations of the district in which it is located. No such alteration shall create a new parking, loading, bulk, yard, or space nonconformity or increase the degree of any existing parking, loading, bulk, yard, or space nonconformity of such structure. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(1) and § 260-905B(1) of this code shall control.

Extension of use.

Prohibited extensions. A nonconforming use in a structure not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located shall not be extended, expanded, enlarged, or increased in intensity by:

An extension of such use to any structure or land area other than that occupied by such nonconforming use on the effective date of this code or any amendment to it that causes such use to become nonconforming; or

An extension of the hours of operation of such use beyond the normal hours of operation on the effective date of this code or any amendment to it that causes such use to become nonconforming.

Permitted extensions. A nonconforming use in a structure not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located may be extended throughout any part of such structure designed for such nonconforming use and not for any use permitted in the district and lawfully existing on the effective date of this code or any amendment to it that causes such use to become nonconforming; provided, however, that such extension shall not be allowed unless off-street parking and loading spaces required for such extension can be, and are, provided in accordance with the requirements and restrictions of §§ 260-904 and 260-905 of this code. No such extension shall be deemed to affect the duty to terminate such use pursuant to Subsection I of this section.

Moving. No structure devoted in whole or in part to a nonconforming use and not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located shall be moved, in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located after being so moved.

Change in use. A nonconforming use in a structure not designed or intended in whole or in part for a use permitted in the district in which such structure is located shall not be changed to any use other than a use permitted in the zoning district in which the structure is located. When a nonconforming use has been changed to a permitted use of the subject zoning district, it shall not thereafter be changed to any use other than a use permitted in the subject district. For purposes of this Subsection G, a use shall be deemed to have been so changed when an existing nonconforming use shall have been terminated and a permitted use of the subject district shall have commenced and continued for a period of five days. Any change of use in violation of this subsection shall be deemed to be an abandonment of the lawfully existing nonconforming use.

Damage or destruction. Any structure devoted in whole or in part to a nonconforming use and not designed or intended, in whole or in part, for a use permitted in the district in which such structure is located that is damaged or destroyed, by any means, to the extent of more than 50% of the cost of replacement of such structure new shall not be restored unless the entire structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located and unless such restoration is accomplished without creating any new parking, loading, bulk, yard, or space nonconformity or increasing the degree of any existing parking, loading, bulk, yard, or space nonconformity of such structure existing prior to such damage or destruction. In determining whether a parking or loading nonconformity has been created or increased, the provisions of § 260-904B(1) and § 260-905B(1) of this code shall control.

When any such structure is damaged or destroyed by any means not within the control of the owner thereof to the extent of 50% or less of the cost of replacement of the structure new, repair or restoration of such structure may be made and the nonconforming use may continue, subject to the regulations of this § 260-1003; provided, however, that no repairs or restorations shall be made that would create any new parking, loading, bulk, yard, or space nonconformity or increase the degree of any parking, loading, bulk, yard, or space nonconformity of such structure existing prior to such damage or destruction, nor shall any repairs or restoration be made except in conformity with the applicable zoning district regulations unless a certificate of zoning compliance is obtained and restoration is actually begun within one year after the date of such partial damage or destruction and is diligently pursued to completion.

In no event shall any damage or destruction to such a structure by means within the control of the owner be repaired or restored except in accordance with Subsections B, C, and D of this section.

Termination of certain uses.

Termination by abandonment.

When a nonconforming use of a part or all of a structure that was not designed or intended in whole or in part for a use permitted in the zoning district in which such structure is located is discontinued or abandoned for a period of six consecutive months, regardless of any intent to resume or not to abandon such use, such use shall not thereafter be reestablished or resumed. Any subsequent use or occupancy of such structure shall comply with the use regulations of the district in which such structure is located.

Any period of such discontinuance caused by government actions, strikes, material shortages, or acts of God, and without any contributing fault by the nonconforming user, shall not be considered in calculating the length of discontinuance for purposes of this paragraph.

§ 260-1004 Nonconforming structures other than signs.

Termination by amortization. Any structure devoted in whole or in part to a nonconforming use and not designed or intended for any use permitted in the district in which such structure is located that has not been terminated pursuant to any other provision of this code shall be either converted to a conforming use or shall be demolished and removed no later than the date provided in the following schedule:

Assessed Valuation on the Effective Date of this Code or any Amendment Hereto Creating Such Nonconformity			Conversion or Removal Within the Following Stated Period After Said Effective Date
(a)	Less than $5,000		5 years
(b)	$5,000 or more:
	[1]	Fireproof or noncombustible construction	25 years or 40 years from date of building permit, whichever is later
	[2]	Exterior masonry wall construction	20 years or 30 years from date of building permit, whichever is later
	[3]	Frame construction	10 years or 20 years from date of building permit, whichever is later

Authority to continue. Any nonconforming structure, other than a sign, that is devoted to a use that is permitted in the zoning district in which it is located may be continued so long as it remains otherwise lawful, subject to the restrictions in Subsections B through D of this section and Subsection D of § 260-1001 of this code.

Repair, maintenance, alterations, and enlargement. Any nonconforming structure, other than a sign, may be repaired, maintained, altered, or enlarged; provided, however, that no such repair, maintenance, alteration, or enlargement shall either create any new nonconformity or increase the degree of the existing nonconformity of all or any part of such structure.

Moving. No nonconforming structure shall be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being so moved.

Damage or destruction. Any nonconforming structure, other than a sign, that is damaged or destroyed, by any means not within the control of the owner thereof, to any extent, may be repaired or restored; provided, however, that no repair or restoration shall be made that would create any new nonconformity not existing prior to such damage or destruction, nor shall any repair or restoration be made except in conformity with the applicable district regulations unless a certificate of zoning compliance is obtained and restoration is actually begun within one year after the date of such damage or destruction and is diligently pursued to completion. In no event shall any damage or destruction to such a structure by means within the control of the owner be repaired or restored except in accordance with Subsection B of this section.

§ 260-1005 Legal nonconforming lots of record.

Definition.

A legal nonconforming lot of record is a lot that:

Is shown by a recorded plat or deed to have been a lot of record owned separately or individually from adjoining tracts of land at a time when the creation of a lot of such size, depth, and width at such location would not have been prohibited by any zoning or other ordinance or regulation; and

Has remained in separate or individual ownership from such adjoining tracts of land continuously during the entire time since such lot became nonconforming by reason of this code or any predecessor zoning or other ordinance or regulation.

For purposes of this section, a lot shall not be deemed to have been owned separately or individually unless the owner of such lot did not, directly or indirectly, have legal title to or a beneficial interest in the adjoining tracts of land at any relevant time.

Authority to use. In any zoning district, a legal nonconforming lot of record may be used for any use permitted in the district in which it is located if, but only if:

Such lot has a total lot area of at least 75% of the minimum lot area required in the district in which said lot is located; and

The development of such lot meets all other requirements of this code, including the floor area ratio and yard requirements of the district in which said lot is located.

§ 260-1006 Nonconforming signs.

Authority to continue. Except as provided in Subsection F of this section, any lawfully existing nonconforming sign may be continued so long as it otherwise remains lawful, subject to the regulations contained in Subsections B through E of this section and in Subsections D and E of § 260-1001 of this code.

Ordinary repair and maintenance. Normal maintenance and incidental repair or replacement of nonbearing sign elements and electrical wiring and fixtures may be performed on any sign; provided, however, that any repair or replacement shall, whenever possible, eliminate or reduce any nonconformity in the element being repaired or replaced; and provided further, however, that this Subsection B shall not be deemed to authorize any violation of Subsections C through F of this section.

Alteration; enlargement; moving. No nonconforming sign shall be changed or altered in any manner that would increase the degree of its nonconformity, be enlarged or expanded, be structurally altered to prolong its useful life, or be moved in whole or in part to any other location where it would remain nonconforming.

Change of sign. A nonconforming sign that has been changed to eliminate its nonconformity or any element of its nonconformity shall not thereafter be changed to restore such nonconformity or nonconforming element.

Damage or destruction. Any nonconforming sign, or any nonconforming element of a sign capable of change or discontinuance separate from other elements of the sign, damaged or destroyed by any means to the extent of 35% or more of its replacement cost new shall not be restored but shall be removed or brought into conformity with the provisions of this code.

Termination of certain signs.

Immediate termination. The following nonconforming signs or sign features shall be terminated within 30 days after the effective date of this code by removal of the sign or by alteration of the sign to eliminate the specified feature:

Attention-getting devices.

Moving or animated signs, except public service signs when expressly permitted by § 260-906 of this code.

(c)

Portable signs.

(d)

Temporary signs, except as expressly permitted by § 260-906 of this code.

(e)

Any sign that advertises, identifies, or pertains to a business no longer conducted, or a product no longer sold, on the premises where such sign is located.

(f)

Any sign on a tree or utility pole, whether on public or private property.

(g)

Any sign on public property, except governmental signs authorized in § 260-906 of this code.

(h)

Any sign that violates any provision or requirement of § 260-906D(3), D(4) or D(6) through D(9) of this code.

(i)

Any sign constructed or erected without a valid permit.

Termination by abandonment. Any nonconforming sign the use of which is discontinued for a period of 30 consecutive days, regardless of any intent to resume or not to abandon such use, shall be deemed to be abandoned and shall not thereafter be reestablished or resumed. Every such sign shall be immediately removed or brought into conformity with the provisions of this code. Any period of such discontinuance caused by government actions, strikes, material shortages, or acts of God, and without any contributing fault by the nonconforming user, shall not be considered in calculating the length of discontinuance for purposes of this paragraph.

(3)

Termination by change of business. Any nonconforming sign advertising, identifying, or pertaining to a business on the premises on which it is located shall be terminated upon any change in the ownership or control of such business.

(4)

Termination by amortization.

Any nonconforming sign in excess of four square feet in area or any nonconforming element of a sign capable of change or discontinuance separate from other elements of the sign that has not been terminated pursuant to any other provision of this code shall be terminated no later than the date provided in the following schedule:

Original Value of Sign or Sign Element, as Shown on, or Estimated from, Building Permit		Removal Required Within Stated Period After Effective Date of This Code
[1]	Less than $1,000	1 year
[2]	$1,000 to $4,000	2 years
[3]	$4,001 to $7,000	3 years
[4]	$7,001 to $10,000	4 years
[5]	More than $10,000	5 years