The purpose of this article is to regulate nonconforming
uses, structures, lots and signs as per the following:
A.
The zoning districts established by this chapter are
designed to guide the future use of the City's land by encouraging
the development of desirable residential, commercial and industrial
areas with appropriate groupings of compatible and related uses and
thus to promote and protect the public health, safety and general
welfare.
B.
The continued existence of certain nonconformities
is frequently inconsistent with the Comprehensive Plan and thus the
gradual elimination of such nonconformities is often desirable. Other
nonconformities may continue to exist and afford adaptive reuse opportunities
that can contribute to neighborhood character, diversity and services.
C.
The regulations of this article are intended to restrict
further investments that would make nonconformities more permanent
in their location in inappropriate districts as well as to afford
opportunities for creative use and reuse of those other nonconformities
that contribute to a neighborhood and are consistent with the goals
of the Comprehensive Plan.
D.
Restrictions and standards are established for nonconforming
uses of land and 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.
E.
In the cases of nonconforming signs, where the degree
of incompatibility is frequently great, the investment comparatively
small, and the economic life short, elimination of the nonconformity
is required after a period of discontinuance, change of business or
substantial damage. In the case of advertising signs, a reasonable
amortization period is allowed.
A.
Continuance. Any lawfully existing nonconforming use
may be continued so long as it remains otherwise lawful, subject to
the regulations contained in this section. Ordinary repair and maintenance
or replacement, and installation or relocation of nonbearing walls,
nonbearing partitions, fixtures, wiring or plumbing, may be performed.
B.
Structural alteration or enlargement. No structure
containing a nonconforming use shall be structurally altered or enlarged
unless the use thereof shall thereafter conform to the regulations
of the zoning district in which it is located. No parking, yard, space
or bulk nonconformity may be created or increased.
C.
Damage or destruction.
(1)
When a structure is damaged or destroyed by any means
not within the control of the owner, to the extent of more than 60%
of the cost of replacement of the structure new, the structure shall
not be restored unless its use thereafter conforms to the use regulations
of the zoning district in which it is located. No parking, yard, space
or bulk nonconformity may be created or increased.
(2)
When a structure is damaged or destroyed by any means
not within the control of the owner thereof to the extent of 60% or
less of the cost of replacement of the structure new, repair or restoration
of such structure may be made; provided, however, that:
(3)
In no event shall any damage or destruction to such
a structure by any means within the control of the owner be repaired
or restored, except in accordance with this section.
(4)
In the event a nonconforming building or use, which
is allocated the low-income housing tax credit pursuant to the Internal
Revenue Code of 1986, as amended, shall be damaged or destroyed, such
nonconforming building or use shall be able to be rebuilt or continued,
as applicable, maintaining, but not increasing, any nonconformities
relating to parking, yard, space or any other bulk requirements.
D.
Moving. No nonconforming structure, structure containing
a nonconforming use or 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 the entire nonconforming structure,
structure containing a nonconforming use or nonconforming use of land
shall conform to all regulations of the zoning district in which the
structure or use is located.
E.
Expansion of use. No use shall be expanded, enlarged
or increased in intensity. Such prohibited activity shall include,
but shall not be limited to:
(1)
Expansion of such use to any structure or land area
other than that occupied by such nonconforming use on the effective
date of this chapter, or any amendment hereto which causes such use
to become nonconforming.
(2)
Expansion of such use 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 chapter, or any amendment to this chapter which causes such use to become nonconforming. Except a nonconforming use located in a structure not designed for any use permitted in the district in which such structure is located may be extended throughout any part of such structure; provided, however, that such expansion shall not be allowed unless off-street parking and loading spaces required for such expansion can be, and are, provided in accordance with the requirements and restrictions of Article XX of this chapter.
(3)
An extension of the hours of operation of such use
beyond the normal or previously approved or permitted hours of operation.
F.
Change in use.
(1)
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 property is located.
(2)
A nonconforming use in a structure not designed for
a use permitted in the district in which it is located shall not be
changed to any use other than a nonconforming use of the same or a
more restricted classification and of the same or lesser level of
intensity and impact or to a use permitted in the zoning district
in which the structure is located.
(3)
Once changed to a permitted use or to a more restrictive and less intensive use in accordance with Subsection F(1) and (2) above, the use shall not be changed back to the prior nonconforming use. The use is deemed changed when an existing nonconforming use is terminated and a new use commences and continues for a period of seven consecutive days, including any change of use in violation of this subsection.
G.
Abandonment or discontinuance.
(1)
When the active operation of all or a portion of a
nonconforming use is discontinued or abandoned for a period of nine
consecutive months, regardless of any intent to resume or not to abandon
the use, the use or portion thereof shall not be reestablished or
resumed. The active operation of a use shall be the typical or normal
activities associated with the use. In the case of abandonment or
discontinuance of all of a nonconforming use, any subsequent use or
occupancy of such land or structure shall comply with the use regulations
of the zoning district in which such structure is located. In the
case of abandonment or discontinuance of a portion of a nonconforming
use, the remaining occupied portion of the nonconforming use may continue
subject to the provisions of this subsection.
[Amended 9-19-2012 by Ord. No. 2012-363; 8-9-2016 by Ord. No. 2016-263]
(2)
Any period of discontinuance caused by government
actions, strikes, material shortages or forces of nature, and without
any contributing fault by the nonconforming user, shall not be considered
in calculating the length of discontinuance for purposes of this subsection,
except that any period of discontinuance ordered by the City or a
court of law because of Municipal Code violations or failure to act
shall be included in calculating the length of discontinuance of this
subsection.
(3)
Prior to the expiration of a period of abandonment
or discontinuance, the owner of any nonconformity may apply to the
Manager of Zoning for a certificate of nonconformity to document the
intent to discontinue a nonconforming use for a period in excess of
the period of abandonment or discontinuance. Such application shall
be based on one or more of the following circumstances and shall include
a plan and timetable for reuse or reoccupancy:
[Amended 7-27-2004 by Ord. No. 2004-240; 6-16-2009 by Ord. No. 2009-179; 9-19-2012 by Ord. No. 2012-363; 6-20-2017 by Ord. No. 2017-170]
(a)
Extensive rehabilitation of property.
(b)
Unique circumstances associated with repairs
and alterations on designated landmarks or designated buildings of
historic value.
(c)
Transfer of title delays caused by estate or
probate issues.
(d)
Delay caused by serious illness or injury of
any owner that may warrant special consideration on the basis of personal
hardship.
(e)
Current and expected market conditions that
impact the ability to reoccupy within the reoccupancy period for built-as
nonresidential buildings.
(4)
Upon the expiration of a period of abandonment or discontinuance, the owner of any nonconformity may apply for a certificate of nonconformity, which, upon denial by the Manager of Zoning, may be appealed to the Zoning Board of Appeals. The Zoning Board of Appeals may extend the period of abandonment or discontinuance if sufficient evidence is provided substantiating that the personal and/or property circumstances set forth in § 120-199G(3) significantly affected the ability to reoccupy the property.
[Added 7-27-2004 by Ord. No. 2004-240;[1] amended 6-16-2009 by Ord. No. 2009-179; 9-19-2012 by Ord. No.
2012-363; 6-20-2017 by Ord. No. 2017-170]
[1]
Editor's Note: This ordinance also renumbered
former § 120-199G(4) and (5) as (5) and (6), respectively.
(5)
The owner of any nonconformity may apply to the Manager
of Zoning for a certificate of nonconformity to establish by relevant
and credible evidence that the use has not been discontinued or abandoned.
For the purpose of this section, the Manager of Zoning shall consider
the following circumstances, which shall not be exclusive, which shall
contribute towards evidence of discontinuance or abandonment of a
use:
[Amended 6-17-2003 by Ord. No. 2003-183; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]
(a)
Failure to maintain regular business hours,
typical or normal for the use (past operations of the use and/or industry
standards may be used to determine typical or normal hours); or
(b)
Failure to maintain equipment, supplies or stock-in-trade
which would be used for the active operation of the use; or
(c)
Failure to maintain utilities which would be
used for the active operation of the use; or
(d)
Failure to pay taxes, including but not limited
to sales taxes, workers' compensation taxes, corporate taxes, etc.,
that would be required for the active operation of the use; or
(e)
Failure to maintain required local, state or
federal licenses or other approvals that would be required for the
active operation of the use.
(6)
The legality of one or more nonconforming uses located
within a property shall not affect the determination that another
nonconforming use on the same property has been discontinued or abandoned.[2]
[2]
Editor's Note: Former Subsection G(5), regarding
application for a certificate of nonconformity, was repealed 6-17-2003
by Ord. No. 2003-183 and former Subsection G(6) was renumbered as
(5).
H.
Nonconforming accessory uses, structures and signs.
No use, structure or sign that is accessory to a principal nonconforming
use or structure shall continue after such principal use or structure
has been abandoned or removed, unless it shall thereafter conform
to all the regulations of the zoning district in which it is located.
[Amended 6-17-2003 by Ord. No. 2003-183]
I.
Outdoor activities and operations. All business operations
and all manufacturing or processing activities other than those conducted
by a use that is nonconforming on the effective date of this chapter
or which is rendered nonconforming by any amendment to this chapter
shall be conducted within a completely enclosed building.
A.
Continuance. Any nonconforming structure which is
devoted to a use which 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 this section.
B.
Enlargement, repair or alterations. Any nonconforming
structure may be enlarged, maintained, repaired or altered, provided
no additional nonconformity is created nor is the degree of the existing
nonconformity increased.
C.
Damage or destruction.
(1)
In the event that any part of a nonconforming structure
which contributed to its nonconformity is damaged or destroyed, by
any means, to the extent of more than 75% of the cost of replacement
of said part new, such part shall not be restored unless it shall
thereafter conform to the regulations of the zoning district in which
it is located.
(2)
When any part of a nonconforming structure is damaged
or destroyed, by any means, to the extent of 75% or less of the cost
of replacement of such part new, no repairs or restoration, except
in conformity with the applicable zoning district regulations, shall
be made unless a certificate of zoning compliance or certificate of
nonconformity is obtained and restoration is actually begun within
one year after the date of such partial destruction and is diligently
pursued to completion.
(3)
In the event a nonconforming structure which is allocated
the low-income housing tax credit pursuant to the Internal Revenue
Code of 1986, as amended, shall be damaged or destroyed, such nonconforming
structure shall be able to be rebuilt or continued, as applicable,
maintaining, but not increasing, any nonconformities relating to parking,
yard, space or any other bulk requirements.
D.
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 moved.
[Amended 6-17-2003 by Ord. No. 2003-183]
A.
In any district in which single-family dwellings are
a permitted use, notwithstanding the regulations imposed by any other
provisions of this chapter, a single-family detached dwelling which
complies with the yard, space and bulk requirements of the district
in which it is located may be erected on a nonconforming lot.
A.
Continuance. Subject to the limitations and termination
provisions hereinafter set forth, any lawfully existing nonconforming
sign may be continued so long as it otherwise remains lawful after
the effective date of this chapter.
B.
Alteration, expansion or moving. No nonconforming
sign shall be:
C.
Termination of nonconforming signs.
(1)
Termination by abandonment. Any nonconforming sign,
the use of which is discontinued for a period of 90 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. Any period
of such discontinuance caused by government actions, strikes, material
shortages or forces of nature, and without any contributing fault
by the nonconforming user, shall not be considered in calculating
the length of discontinuance for purposes of this subsection.
(2)
Termination by damage or destruction. Any nonconforming
sign damaged or destroyed, by any means, to the extent of 35% of its
replacement cost new shall not be restored but shall be terminated.
(3)
Termination by change of business. Any nonconforming
sign advertising or relating to a business on the premises on which
it is located shall be terminated upon any change of such business
necessitating any change in the sign.
