The purpose of this article is to protect the rights of property owners who have lawfully established, and continuously maintained in a lawful manner, a use prior to the adoption of this chapter or prior to any amendment to this chapter which would otherwise render such use unlawful.
(Ordinance 1230, § 3, adopted 10/3/2022[1])
[1]
Editor's note—This ordinance also provided for the renumbering of former § 53-1138 as § 53-1139.
The general public, the city council and the planning and zoning commission are directed to take note that nonconformities in the use and development of land and buildings are to be avoided, or eliminated where now existing, whenever and wherever possible, except:
(1) 
When necessary to preserve property rights established prior to the date the ordinance from which this chapter is derived become effective as to the property in question; and
(2) 
When necessary to promote the general welfare and to protect the character of the surrounding property.
(Ordinance 438, § 64(a), adopted 11/24/2003; Ordinance 1230, § 3, adopted 10/3/2022)
(a) 
Limitations on nonconforming uses.
(1) 
Nonconforming uses.
The lawful use of land existing as of the effective date of this chapter, or a lawful use which becomes nonconforming because of an amendment to this chapter, may be continued, although such use does not conform to the provisions of this chapter, subject to the terms, conditions, and limitations as provided in this section.
(2) 
Abandonment.
A nonconforming use that has been discontinued may be resumed only if there has been no other use of the premises or structure since the nonconforming use was discontinued, and such use was not discontinued for a period of 90 days or more; provided that if a use is discontinued temporarily for remodeling of a building and a building permit for the remodeling is taken out within 60 days from the date the use is discontinued the period shall be 180 days from the from the date the use is discontinued.
(3) 
Enlargement of use.
a. 
No existing nonconforming use shall be enlarged, increased, extended to occupy a greater area of land or surface area than was originally occupied, including the enlargement, extension, construction or reconstruction of a structure devoted to such nonconforming use, provided that the use of a nonconforming single-family property and structure that is enlarged as permitted by section 53-1141(a)(2) may extend into the permitted addition.
b. 
Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to any land outside such building.
(4) 
Change in use.
The use of the structure shall only be changed to a use permitted in the district in which it is located.
(5) 
Conditions.
The right of nonconforming uses to continue shall be subject to such regulations as to the maintenance of the premises and conditions of operation as may, in the judgment of the city, be reasonably required for the protection of adjacent property.
(b) 
Termination of nonconforming uses.
Termination of nonconforming rights under subsections (1) and (2) of this subsection shall provide for notice and hearing as provided in section 53-1143.
(1) 
By violation of chapter.
The violation of this chapter shall terminate immediately the right to operate a nonconforming use.
(2) 
By specific acts of termination.
Any one of the following specific acts of termination shall terminate immediately the right to operate a nonconforming use:
a. 
Changing a nonconforming use to a conforming use;
b. 
Nonoperation or non-use of a nonconforming use for a period of 12 or more successive calendar months;
c. 
Vacancy for a period of 12 or more successive calendar months of the structure or that part of a structure occupied by a nonconforming use.
(3) 
Removal or destruction of structure.
Except as provided in this subsection 53-1140(b)(3), the right to operate and maintain any nonconforming use shall terminate and shall cease to exist whenever the structure or structures in which the nonconforming use is operated and maintained is damaged or destroyed from any cause whatsoever, and the cost of repairing such damage or destruction exceeds 50 percent of the replacement cost of such structure on the date of such damage or destruction. A nonconforming single-family dwelling unit which is destroyed or damaged more than 50 percent of the replacement cost may be rebuilt provided a building permit is issued within one year of the date of such damage or destruction. The director of planning and development services may require the submission of necessary evidence to verify the date of damage or destruction.
(Ordinance 438, § 64(c), (d), adopted 11/24/2003; Ordinance 875, § 1(Exh. A), adopted 10/20/2015; Ordinance 1230, § 3, adopted 10/3/2022)
(a) 
Limitations on nonconforming structures.
(1) 
Continuance of nonconforming structures.
Subject to all limitations herein set forth, any nonconforming structure may be occupied and operated and maintained in a state of good repair, subject to the terms, conditions, and limitations of this section.
(2) 
Enlargement.
No such nonconforming structure may be enlarged or altered in a way which increases its structural nonconformity, but any structure or portion thereof may be altered to decrease its structural nonconformity; provided that a nonconforming single-family residential structure may be enlarged up to 15 percent of the structure's total square footage a long as impervious cover restrictions are not exceeded.
(b) 
Termination of nonconforming structures.
(1) 
Movement of structure.
Should a nonconforming structure be moved for any reason for any distance whatsoever, it shall thereafter conform to the regulations of the district in which it is located after it is moved.
(2) 
Damage to structures.
The right to operate and maintain any nonconforming structure shall terminate and shall cease to exist whenever the nonconforming structure is damaged in any manner and from any cause whatsoever and the cost of repairing such damage exceeds 50 percent of the replacement cost of such structure on the date of such damage, except as provided in section 53-1140(b)(3) or section 53-1141(d).
(3) 
Obsolescence of structure.
The right to operate and maintain any nonconforming structure shall terminate and shall cease to exist whenever the nonconforming structure becomes obsolete or substandard under any applicable ordinance of the municipality and the cost of placing such structure in lawful compliance with the applicable ordinance exceeds 50 percent of the replacement cost of such structure on the date that the proper official of the municipality determines that such structure is obsolete or substandard.
(c) 
Continuation of construction.
A nonconforming building, structure, or part thereof for which construction has begun prior to a change in regulations, which change would make the structure, once completed, a nonconforming structure, may be completed in accordance with the approved building permit and plans, provided that the work is implemented continuously and without delay. Such structure shall be deemed to be a previously conforming structure and shall, thereafter, be subject to the regulations set forth herein.
(d) 
Nonconforming manufactured home.
A manufactured home that is a nonconforming structure may be replaced one time by a newer manufactured home that is at least as large in living space as the manufactured home that is being replaced, provided that replacement of a nonconforming manufactured home because of fire or other natural disaster shall not count towards the single replacement limitation.
(Ordinance 1230, § 3, adopted 10/3/2022)
(a) 
General.
On any nonconforming structure, or nonconforming portion of a structure, containing a nonconforming use, repairs and maintenance shall be performed to maintain the structure in compliance with the electrical, plumbing and building codes; provided that such repairs and maintenance shall be subject to the following conditions and limitations:
(1) 
No work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of non-load-bearing walls, fixtures, wiring or plumbing, to an extent exceeding 25 percent of the current replacement cost of such structure or nonconforming portion of such structure.
(2) 
If 50 percent or more of the nonconforming structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs or maintenance, and is declared by a duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.
(b) 
Determination of replacement cost.
In determining the replacement cost of any nonconforming structure under this Article there shall not be included therein the cost of land or any factors other than the nonconforming structure itself.
(Ordinance 1230, § 3, adopted 10/3/2022)
Nonconforming rights may be granted to newly annexed areas in accordance with the following provisions and upon payment of the applicable fees. All applications for nonconforming rights must be filed within 60 days of the effective date of annexation.
(a) 
Incomplete construction.
Construction may be completed on any structure legally under construction upon annexation provided:
(1) 
The owner or his designated representative applies to the director of planning and development services for a permit to authorize further work on the structure stating the proposed use of the structure and attaching thereto the plans and specifications relating to the construction; and
(2) 
The construction is completed within two years of the effective date of annexation. Action on the permits shall be taken by the director of planning and development services within 15 days from the date of application. The director shall deny the permit if he finds that the construction will not meet the requirements of the building, fire protection, or minimum housing codes and other applicable ordinances and codes of the city. If the permit is refused, the construction work shall cease until necessary corrections are made.
(b) 
Proposed construction.
Proposed construction may be completed upon a finding by the zoning commission that sufficient evidence exists that planning for the proposed use was in progress prior to annexation. Within 15 days from the date of such filing, the director shall present the evidence to the zoning commission for their determination, unless the applicant agrees to a longer period. The applicant shall have 12 months from the date of the zoning commission's favorable determination to secure all building permits. After that time, the nonconforming rights shall expire.
(Ordinance 1230, § 3, adopted 10/3/2022)
The city shall investigate alleged violations of imposed condition or conditions. The results of any investigation shall be brought to the attention of the director of development services who shall make a determination whether or not to terminate or suspend (for a specific period) the permit. The director shall provide the permit holder notice of his intent to suspend or revoke a permit for a chapter violation. The notice may specify a reasonable time for compliance with this chapter. If time for compliance is specified in the notice, the director may not suspend or revoke the permit before the time for compliance has expired. No further action shall be taken should the permit holder comply. Should the director determine that the violation has not been abated, the director may revoke the permit by providing the permit holder a notice of termination. This notice shall provide the permit holder with the reason(s) for termination or suspension of the permit(s), at which time the permit holder shall surrender the permit to the director or his/her designee.
(Ordinance 1230, § 3, adopted 10/3/2022)