A.
Purpose and Scope. It is the purpose of this Ordinance to establish
regulations governing uses, structures, signs and lots that were lawfully
established prior to this Ordinance but do not conform to one or more
existing requirements of this Ordinance. The intent of this Ordinance
is to regulate and limit these nonconformities until they are removed.
B.
Authority to Continue. Nonconforming uses, structures, signs and
lots that legally existed on October 18, 2005, or that become nonconforming
upon the adoption of any amendment to this Ordinance may be continued
only in accordance with the provisions of this chapter. Unless otherwise
expressly stated, any variation from these standards shall require
review and approval of a variance, in accordance with the procedures
and standards of § 8.3E: Variances.
C.
Determination of Nonconformity Status. The burden of establishing
that any nonconformity is a legal nonconformity shall in all cases
be upon the owner of the nonconformity.
D.
Repairs and Maintenance. Incidental repairs and normal maintenance
of nonconformities shall be permitted unless such repairs increase
the extent of nonconformity or are otherwise expressly prohibited
by this Ordinance. Nothing in this chapter shall be construed to prevent
structures from being structurally strengthened or restored to a safe
condition, in accordance with an official order of a public official.
E.
Change of Tenancy or Ownership. The status of nonconformity is not
affected by changes of tenancy, ownership or management.
Nonconforming uses are those uses that were legally established
but no longer comply with the use regulations of the zone district
in which they are located.
A.
Enlargement or Expansion. A nonconforming use shall not be enlarged
or expanded in area, except that a nonconforming use may be enlarged
in any area of the same structure that was manifestly designed for
such use prior to the date the use became a nonconformity. The structure
shall not be physically enlarged to accommodate a nonconforming use.
B.
Relocation. A nonconforming use shall not be moved in whole, or in
part, to another location on the parcel of land on which it is located,
unless the relocation of the nonconforming use decreases the nonconformity.
C.
Damage and Restoration of Structure Containing a Nonconforming Use.
If a conforming structure containing a nonconforming use is damaged
by any means to the extent of more than 50% of its actual cash value
at the time damage occurs as determined by the City Assessor, the
nonconforming use shall not be reestablished except in compliance
with all regulations applicable to the zone district in which it is
located. Any conforming structure that is damaged by any means to
a lesser extent may continue the nonconforming use if it is reconstructed
and used as before within one year of the damage.
D.
Change to Conforming Use. A nonconforming use may be changed to any
use that is permitted in the zone district in which it is located,
subject to the standards and requirements applicable to the new use.
E.
Conversion of Conforming Use. Once a nonconforming use is converted
to a conforming use it may not be changed back to a nonconforming
use.
F.
Change to Other Nonconforming Use. A nonconforming use may be changed
to another nonconforming use only if reviewed and approved by the
Zoning Board of Appeals. The Zoning Board of Appeals may approve such
change of nonconforming use only if it determines that the new nonconforming
use will not be more injurious to the surrounding area than the previous
nonconforming use. If a change in use is approved, the Zoning Board
of Appeals shall be authorized to impose conditions it deems necessary
to reduce or minimize any potentially adverse effect upon other property
in the neighborhood, and to carry out the general purpose and intent
of this Ordinance. Any condition imposed shall relate to a situation
created or aggravated by the proposed use and must be roughly proportional
to its impact.
G.
Loss of Nonconforming Status.
1.
Abandonment. Once abandoned, a nonconforming use shall not be reestablished
or resumed. Any subsequent use or occupancy of the structure or open
land must comply with the regulations of the zone district in which
it is located and all other applicable requirements of this Ordinance.
2.
Evidence of Abandonment. A nonconforming use shall be presumed abandoned
and its rights as a nonconforming use extinguished when any one of
the following has occurred:
a)
Intent to abandon. The owner has in writing or by public statement
indicated intent to abandon the use.
b)
Conforming use. A conforming use has replaced the nonconforming use.
c)
Building or structure removed. The building or structure housing
the nonconforming use has been removed.
d)
Building or equipment change indicates change in use. The owner has
physically changed the building or structure or its permanent equipment
in a manner that clearly indicates a change in use or activity to
something other than the nonconforming use.
e)
Use discontinued or inactive for one year. The use has been discontinued,
vacant or inactive for a continuous period of at least one year, regardless
of ownership.
3.
Overcoming Presumption of Abandonment. A presumption of abandonment
based on the evidence of abandonment stated in § 9.2G.2:
Evidence of Abandonment, may be rebutted upon a showing that the owner:
a)
Conforms with relevant regulations. Has been maintaining the land
and structure in accordance with all applicable regulations, including
the Building Code, and did not intend to discontinue the use.
b)
No intent of abandonment. Has been engaged in other activities that
would affirmatively prove there was not intent to abandon.
c)
Licenses. Has been maintaining all applicable licenses.
d)
Tax documents. Has filed all applicable tax documents.
Nonconforming structures are those structures that were legally
established but no longer comply with the intensity and dimensional
standards of the zone district in which they are located.
A.
Use. A nonconforming structure may be used for any use allowed in
the underlying zone district, subject to all applicable use standards.
B.
Expansion. A nonconforming structure may be enlarged or expanded
only if the expansion does not increase the extent of nonconformity.
C.
Moving. A nonconforming structure may be moved if the movement or
relocation eliminates the nonconformity.
D.
Loss of Nonconforming Status; Damage or Destruction.
1.
Principal Structures. Except for single-family dwellings existing
on October 18, 2005, any nonconforming principal structure that is
destroyed by any means to the extent of more than 50% of its actual
cash value at the time damage occurs as determined by the City Assessor,
shall not be reestablished except in compliance with all regulations
applicable to the zone district in which it is located. Any nonconforming
structure that is damaged to a lesser extent may continue if repairs
or reconstruction is undertaken within one year of the date of the
partial destruction and diligently carried on to its completion.
2.
Accessory Structures. Except for an accessory structure to a single-family
dwelling existing on October 18, 2005, no nonconforming structure
that is accessory to a principal structure shall continue after such
accessory structure has been destroyed by more than 50% of its actual
cash value at the time damage occurs as determined by the City Assessor,
unless the accessory structure complies with all applicable regulations
of this Ordinance. In the RD zones, nonconforming residential dwellings
containing two units can be rebuilt, regardless of the extent of the
damage, if: a) the rebuilding does not increase the nonconformity,
and b) if any of the units are renter-occupied, a valid Certificate
of Compliance issued by the City was in effect at the time of the
damage. If these two conditions are not met, the dwelling can only
be rebuilt in compliance with all regulations applicable to the zone
district. In the RM zones, nonconforming residential dwellings containing
two to four units can be rebuilt, regardless of the extent of the
damage, if: a) the rebuilding does not increase the nonconformity,
and b) if any of the units are renter-occupied, a valid Certificate
of Compliance issued by the City was in effect at the time of the
damage. If these two conditions are not met, the dwelling can only
be rebuilt in compliance with all regulations applicable to the zone
district. Any nonconforming accessory structure that is damaged to
a lesser extent may continue if repairs or reconstruction is undertaken
within one year of the date of the partial destruction and diligently
carried on to its completion.
[Amended 3-19-2007 by Ord. No. 1822]
[Amended 3-19-2007 by Ord. No. 1822]
Nonconforming lots are those lots that were legally established,
such as lots of record, but no longer comply with the minimum area
or width standards of the zone district in which they are located.
A.
Vacant Lots. If the nonconforming lot was vacant at the time it became
legally nonconforming, it may be used for any use allowed in the underlying
zone district. If one or more uses or intensities would comply with
applicable setback requirements of the underlying zone district while
others would not, then only the uses or intensities that would conform
to applicable setback requirements shall be permitted. Development
on nonconforming lots shall comply with the dimensional standards
of the underlying zone district, except as expressly stated in this
section.
B.
Developed Lots. If the nonconforming lot contained a building or
structure at the time it became nonconforming, then the building or
structure may be maintained or expanded in accordance with the standards
of § 9.3: Nonconforming Structures.
C.
Nonconformities Created by Government Action.
1.
General Provision. When the Michigan Department of Transportation,
the Kalamazoo County Road Commission, the City of Kalamazoo, or any
other governmental entity acquires additional right-of-way for the
purpose of street construction, street relocation, street widening,
or utilities, and the result of such acquisition is to create a nonconformity
with the minimum setback, lot width, lot area, parking requirements,
or any other requirement of this Ordinance, any existing lot, building,
or structure rendered nonconforming by such action shall thereafter
be permitted to be altered, enlarged, or rebuilt as set forth in Subsection
2 below. This provision shall apply regardless of whether the additional
right-of-way was acquired through the exercise of eminent domain powers,
or by transfer under the threat of eminent domain proceedings.
2.
Limitations. Any alteration, enlargement, or rebuilding of a lot,
building, or structure affected by government action as described
in Subsection 1 above, shall be limited to actions that do not increase
its nonconformity. As an example, a structure would be permitted to
be altered, enlarged, or rebuilt provided that such action would not
further reduce the setback distance to the front property line or
further reduce the number of permissible parking spaces. In addition,
any alteration, enlargement, or rebuilding shall comply with the following
provisions.
a)
Damages minimized. If the condemnation action has not been decided
by a court of law, the amount of severance and business damages resulting
from the eminent domain proceedings are substantial, and the loss
of business damages would be minimized by a determination for conformity;
b)
Site plan. A site plan can be designed for the land that is consistent
with the use requirements of this Ordinance, and minimizes to the
greatest degree practicable any nonconformities of parking, loading,
landscaping, lot size, and yard requirements; and
c)
Nonconformities minimized. The structure or lot can function adequately
for its designated land use pursuant to a proposed site plan that
minimizes nonconformities while ensuring compatibility.
A nonconforming sign is a sign that exceeds the surface and/or height limitations of Chapter 7: Signs, is a type of sign that is not permitted, or is placed in a location that is not permitted by this Ordinance.
A.
Continuation of Nonconforming Signs. A nonconforming sign shall not:
1.
Be changed to another nonconforming sign.
2.
Be structurally altered or changed in shape, size, location or design,
except to bring the sign into complete conformity with this Ordinance.
3.
Have any change made in the words or symbols used or the message
displayed on the sign.
4.
Be structurally altered so as to prolong the life of the sign or
change the shape, size, type or design of the sign.
5.
Be re-established after the business, service, or activity to which
it relates is discontinued for 30 days or longer (and the nonconforming
sign and all supporting structures shall be removed).
6.
Be re-established after damage caused by accident, natural causes,
or vandalism, if the damage is in excess of 50% of its actual cash
value at the time damage occurs as determined by the City Assessor.
B.
Normal Maintenance of Nonconforming Signs. Subject to the other provisions
of this section, nonconforming signs may have normal maintenance performed.
C.
Change to Face of Nonconforming Sign. The owner of a nonconforming
sign may change the face of a nonconforming sign if the owner enters
into an agreement with the City that complies with the following requirements.
For the purposes of this subsection, the "face of a nonconforming
sign" is defined as the area of the sign that displays the name, identification,
description, illustration, business or solicitation (it does not include
any portion of the structural support of the sign or changeable copy
area):
1.
Removal of sign within five years. That states that in exchange for
the opportunity to change the face of the sign, the entire nonconforming
sign, which includes the face and structure, shall be removed within
five years of entering into the agreement.
2.
Owner(s) pay for removal. The owner of the sign and/or the owner
of the land on which the sign is located will pay for removal of the
sign.
3.
No variance. The owner of the sign and the owner of the land on which
the sign is located waives the right to request a variance from the
Zoning Board of Appeals so that the sign can remain after five years.
4.
Agreement runs with land. The agreement shall run with the land and
become binding on any subsequent owners of the sign or owners of the
land on which the sign is located.
5.
Future sign comply with this Ordinance Any future sign constructed to replace the sign (if it is appropriate), shall comply with the requirements of Chapter 7: Signs
6.
Recording. The agreement shall be recorded with the Register of Deeds
by the owner of the sign within 30 days of the execution of the agreement,
or the agreement shall be null and void.
7.
Lien. A lien in the amount of 150% of the estimated cost of removing
the sign shall be placed against the land on which the sign is located
and any structure on the land on which the sign is located five years
from the date of the execution of the agreement, and shall remain
effective until the sign is removed.
Pursuant to Public Act 207 of 1921 (MCLA § 125.583a,
as amended), the City Commission may, from to time, acquire properties
on which nonconforming uses or structures are located, by condemnation
or otherwise, and may remove such uses or structures and lease or
sell the property for a conforming use or develop it for a public
use, other than public housing. The net cost of such acquisition may
be assessed against a benefit district or may be paid from other sources
of revenue.
