Upon the adoption of this ordinance or subsequent amendments,
there may exist lots, structures, and uses of land which were lawful
prior to the adoption of the ordinance, or amendment thereto, but
which are not in conformance with the provisions of this ordinance,
or amendment thereto. It is the intent of this ordinance to permit
these nonconforming lots, structures, and uses to continue, but not
to encourage their prolonged existence. Because nonconforming lots,
structures and uses, so long as they exist, prevent full realization
of the goals and objectives of the City of New Buffalo General Development
Plan, the spirit of this ordinance is to reduce, rather than increase,
such nonconformance.
A.
Existing lot of record. In any zoning district where an existing
lot of record which does not abut any lot or lots of record in the
same ownership, fails to meet the requirements for minimum lot area,
minimum lot width, or both, of the zoning district in which it is
located, such lot may be used for the permitted uses of the zoning
district, provided that all other dimensional requirements not involving
lot area and/or lot width of the zoning district in which such lot
is located are met.
B.
Abutting lots of record under single ownership. In any zoning district,
where two or more abutting lots of record in the same ownership and
with frontage on the same street do not, when considered individually,
meet the requirements for minimum lot area and/or minimum lot width
of the zoning district in which the lots are located, such lots shall
be combined to create one or more conforming lots for the purposes
of this ordinance.
The lawful use of any land, not involving a building or structure,
existing and lawful on the effective date of this ordinance, or amendment
thereto, may be continued, even though such use does not conform with
the provisions of this ordinance, or amendment thereto, subject to
the following provisions:
C.
Cessation. If any such nonconforming use of land ceases for any reason
for a period of more than one year, any subsequent use of such land
shall conform to the requirements of this ordinance. A nonconforming
use shall be determined to cease if one or more of the following conditions
exists, and which shall be deemed to constitute an intent on the part
of the property owner to cease and abandon the nonconforming use:
1.
Utilities, such as water, gas and electricity to the property, have
been disconnected;
2.
The property, buildings, and grounds, have fallen into disrepair;
3.
Signs or other indications of the existence of the nonconforming
use have been removed;
4.
Equipment or fixtures necessary for the operation of the nonconforming
use have been removed;
5.
Other actions, which in the opinion of the Zoning Administrator,
constitute an intention of the part of the property owner or lessee
to abandon the nonconforming use.
Structures which are existing and lawful on the effective date
of this ordinance, or amendment thereto, may be continued, even though
such structure does not conform with the provisions of this ordinance,
or amendment thereto, subject to the following provisions:
A.
Enlargement/alteration. Except as provided for, no nonconforming
structure may be enlarged or altered in a way which increases its
nonconformity with the provisions of this ordinance, unless authorized
by the Zoning Board of Appeals, following a public hearing. In authorizing
such enlargement or alteration, the Zoning Board of Appeals shall
consider and document all of the following:
1.
Whether the proposed enlargement or alteration will change the essential
character of the area.
2.
Whether the proposed enlargement or alteration will be contrary to
the general development plan.
3.
Whether the proposed enlargement or alteration will have adverse
impact on adjoining property or the general welfare of the City, by
reason of its nonconformity with the provisions of this ordinance.
4.
Whether there are reasonable and practical alternatives to achieving
the desired enlargement or alteration in a manner which does not increase
the degree of nonconformity of the structure with the provisions of
this ordinance.
B.
ZBA conditions pursuant to enlargement/alteration. In authorizing
approval to enlarge or alter a nonconforming structure, the Zoning
Board of Appeals may impose conditions including, but not limited
to: additional site landscaping, site buffers, fencing, facade design
requirements, additional on-premises parking, vehicular circulation
modifications, signage, exterior lighting, and related building and
site design modifications.
C.
Damage and reconstruction.
1.
Nonconforming structure. In the event that any nonconforming structure
shall be damaged by fire, wind, accident, Act of God, or other such
means or manner, to the extent that the cost of reconstruction or
restoration is equal to or less than 1/2 of the value of such structure
prior to the damaging occurrence, as determined by the most recent
assessment of the market value of the structure, exclusive of the
market value of land, such reconstruction or restoration shall be
permitted by right, subject to the provisions of this ordinance. Structures
damaged in excess of 1/2 of the fair market value of such structure
prior to the damaging occurrence, as determined by the Assessor, exclusive
of the market value of land, shall only be reconstructed subject to
compliance with underlying zone district standards.
2.
Building permit required. The above reconstruction or restoration
shall require the issuance of a building permit within one year of
the occurrence of such damage.
3.
Secured building requirement. A damaged structure awaiting reconstruction
or restoration shall be properly secured within 48 hours of the damaging
occurrence to prevent trespass, vandalism, and injury to the public.
D.
Decrease of nonconformity and re-establishment. If a nonconforming
structure is altered or modified so as to eliminate, remove, or lessen
any or all of its nonconforming characteristics, then such nonconforming
characteristics shall not be later re-established or increased.
The lawful use of any structure existing and lawful on the effective
date of this ordinance, or amendment thereto, may be continued, even
though such use does not conform with the provisions of this ordinance,
or amendment thereto, subject to the following provisions:
A.
Extending use within a structure. Any nonconforming use may be extended
throughout any parts of a building which were manifestly arranged
or designed for such use at the effective date of this ordinance,
or amendment thereto, but no such use shall be extended to occupy
any portion of a building which was not manifestly arranged or designed
for such use at the effective date of this ordinance, or amendment
thereto, nor shall such use be extended to occupy any land outside
such building.
B.
Alteration of structure possessing a nonconforming use. No existing
structure devoted to a nonconforming use shall be enlarged, extended,
constructed, reconstructed, moved or structurally altered except in
changing the use of the structure to a use permitted in the zoning
ordinance in which it is located.
C.
Reconstruction of structure occupied by a nonconforming use. If a
structure which conforms with the provisions of this ordinance, but
which is occupied by a nonconforming use, is damaged by any means
or in any manner to the extent that the cost of reconstruction or
restoration exceeds 1/2 the value of such structure prior to the damaging
occurrence, as determined by the most recent assessment of the market
value of the structure, excluding the value of land, such structure
may be reconstructed or restored only if its use conforms with the
provisions of this ordinance.
D.
Re-establishment of nonconforming use. If a nonconforming use of
any structure is terminated and replaced by a permitted use, such
nonconforming use shall not be later re-established.
E.
Abandonment. When a nonconforming use of a structure, or structure
and land in combination, is discontinued or abandoned for one year,
the structure, or structure and land in combination, shall not hereafter
be used except in conformance with the regulations of the zoning district
in which it is located. A nonconforming use shall be determined to
cease if one or more of the following conditions exists, and which
shall be deemed to constitute an intent on the part of the property
owner to cease and abandon the nonconforming use:
1.
Utilities, such as water, gas and electricity to the property, have
been disconnected;
2.
The property, buildings, and grounds, have fallen into disrepair;
3.
Signs or other indications of the existence of the nonconforming
use have been removed;
4.
Equipment or fixtures necessary for the operation of the nonconforming
use have been removed;
5.
Other actions, which in the opinion of the Zoning Administrator,
constitute an intention of the part of the property owner or lessee
to abandon the nonconforming use.
F.
Removal of nonconforming use status after removal or destruction
of building. Where nonconforming use status applies to a structure
and land in combination, removal or destruction of the structure shall
eliminate the nonconforming use status of the land.
G.
Change in use (substitution).
1.
A nonconforming use of a structure may be changed to another nonconforming
use, subject to prior approval of the Zoning Board of Appeals. The
Board may approve such change only if it complies with the following
standards:
a.
The proposed use does not increase the degree of nonconformity existing
prior to such change of use. Pursuant to this standard, the proposed
use shall not create, or result in, impacts which are considered more
objectionable than the use to be replaced. Such impacts shall include,
but are not limited to, increased traffic, truck deliveries, parking
requirements, hours of operation, noise, vibration, odors, litter,
outside storage, pedestrian movement, off-site drainage, and other
factors.
b.
No structural alteration of the existing structure will be required
to accommodate the new use, unless the alteration will render the
structure more conforming to the underlying zone district standards.
2.
In approving a change in use, the Zoning Board of Appeals may require
reasonable conditions in order to increase the degree of conformity.
Such conditions shall include, but are not limited to, buffers, landscaping,
on-premises parking, access controls, hours of operation, and other
such conditions to bring about a greater degree of conformity.
A.
Basic repairs and maintenance. On any structure devoted in whole
or in part to any nonconforming use, work may be done in any period
of 12 consecutive months on ordinary repairs, or on repair or replacement
of non-bearing walls, fixtures, wiring, mechanical equipment, or plumbing,
to an extent not exceeding 20% of the current replacement value of
the structure as based on the records of the City Assessor, provided
that the structure is not enlarged, extended, moved or structurally
altered.
B.
Safety improvements. Nothing in this ordinance shall be deemed to
prevent the strengthening or restoring to a safe condition of any
structure or part thereof declared to be unsafe by any official charged
with protecting the public health.
Any structure on which actual construction was lawfully begun
prior to the effective date of this ordinance, or amendment thereto,
but, which under this ordinance, or amendment thereto, is classified
as nonconforming, shall be considered existing and legally nonconforming
pursuant to construction purposes and the intended use. Nothing in
this ordinance shall be deemed to require any change in the plans,
construction or use of such structure. "Actual construction" is defined
to include the placing of construction materials in a permanent position
and fastened in a permanent manner, except that where demolition or
removal of an existing building has been substantially begun preparatory
to reconstruction such demolition or removal shall be deemed actual
construction.
[Added 11-23-2021 by Ord. No. 253]
A.
Nonconforming short-term rental units permitted. Short-term rental units that existed and were registered under Chapter 11 of the Code of Ordinances as of November 23, 2021, the effective date of the amendment creating this section, may be continued as nonconforming uses so long as they conform to the regulations provided herein.
B.
Regulations. Notwithstanding any other provision of this ordinance:
1.
The ability to operate a nonconforming short-term rental unit is not impaired by the making of modifications, improvements, or repairs to the structure or land where the use is located. However, if the underlying residential use is nonconforming, the underlying use may be impaired by such activities as provided in Section 20-5.
2.
The ability to operate a nonconforming short-term rental unit is not impaired by any transfer of ownership or control of the property, unless the right to continue operating a short-term rental unit is later deemed abandoned by the new owner as provided in Subsection B(3) below. New owners are responsible for obtaining renewal permits in accordance with the processes provided in Chapter 11 of the Code of Ordinances.
3.
A short-term rental unit shall be deemed abandoned if either of the
following transpires:
a.
The short-term rental unit is not rented for one or more short-term rental terms within a period of 12 months. The failure to submit a short-term rental reservation summary for the unit, as required by Section 11-4 of the City Code, for a period of one year or more shall constitute conclusive evidence of abandonment pursuant to this subsection.
b.
The short-term rental permit for the property expires, terminates, or becomes invalid and a new permit or renewal permit is not obtained within the later of: i) 12 months from the expiration, termination, or invalidation; or ii) in cases where the permit has been revoked pursuant to Chapter 11 of the Code, six months from the date when the period of ineligibility expires.
