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The purpose of this Section 14-16-6-8 is to regulate land uses, buildings, lots, signs, and site features that were legally established, but that do not conform to the requirements of this IDO due to some action of the government (collectively “nonconformities”). These regulations are intended to reduce or eliminate over time any nonconformity that does not meet the regulatory standards of the IDO and/or the goals of the ABC Comp Plan, as amended, and that creates adverse impacts on the surrounding area or the city.
6-8(B)(1) General Applicability
The regulations in this Section 14-16-6-8 apply to land uses, buildings, lots, signs, and site features, including:
6-8(B)(1)(a) Those that were legally established prior to the effective date of this IDO but that become nonconforming due to the adoption of this IDO.
6-8(B)(1)(b) Those that were legally established after the effective date of this IDO but that become nonconforming due to the adoption of a future amendment to this IDO.
6-8(B)(2) Authority to Continue
6-8(B)(2)(a) General Nonconformities
Nonconformities that in general do no harm to the surrounding area may be allowed to continue or expand based on the regulations and criteria of this Section 14-16-6-8 in order to preserve the integrity of a neighborhood and prevent adverse impacts resulting from unused buildings or vacant lots.
6-8(B)(2)(b) Timeframes for Compliance
Where the IDO establishes timeframes for compliance, the effective date of this IDO shall mark the beginning of the timeframe unless specified otherwise in this IDO or another adopted City Ordinance in ROA 1994.
6-8(B)(2)(c) Nonconforming Use of Land or a Structure in the APO Zone
Notwithstanding Subsections (a) and (b) above, the City shall not grant any permit or approval under this IDO that would allow a nonconforming use of a lot or structure to become a greater hazard or obstruction to air navigation than it was on the effective date of this IDO or any relevant amendments to this IDO.
6-8(C) NONCONFORMING USES
6-8(C)(1) Authority to Continue
Unless specified otherwise in this Section 14-16-6-8 or elsewhere in this IDO, the nonconforming use of land or a structure shall be allowed to continue regardless of any change in ownership or occupancy of the use, until that use is discontinued or another provision of this Section 14-16-6-8 requires the termination of the use.
6-8(C)(2) Repair and Maintenance
A structure containing a nonconforming use may be maintained, repaired, or altered, with limits on expansion pursuant to Subsection 14-16-6-8(C)(4) (Expansion of Nonconforming Use).
6-8(C)(3) Discontinuance of Nonconforming Use
6-8(C)(3)(a) Except as noted in Subsection (b) below, when a nonconforming use of land or a structure is discontinued for a period of 2 years, any later use shall only be an allowable use as indicated in Table 4-2-1 for the zone district in which the property is located.
6-8(C)(3)(b) When a nonconforming residential use of a single-family detached dwelling located in any Mixed-use or Non-residential zone district is discontinued for 5 years, any later use shall only be an allowable use as indicated in Table 4-2-1 for the zone district in which the property is located.
6-8(C)(3)(c) Neither the intention of the owner nor that of anybody else to use a lot or part of a lot for any nonconforming use, nor the fact that the lot or part of a lot may have been used by a makeshift nonconforming use shall prevent the ZEO from determining that the use has been discontinued for the purposes of this Subsection 14-16-6-8(C)(3).
6-8(C)(4) Expansion of Nonconforming Use
A nonconforming use of land or a structure shall not be expanded, except that the portion of a structure or land containing a nonconforming use may be expanded in size if approved by the ZHE pursuant to Subsection 14-16-6-6(C).
6-8(C)(5) Change in Nonconforming Use
A nonconforming use of land or a structure may be changed to another use equally or more restrictive than the immediately preceding nonconforming use, as determined by the ZEO.
A helipad shown on a Site Plan approved by the EPC prior to March 5, 2000, shall be deemed conforming.
6-8(C)(7) Mobile Home Dwellings
6-8(C)(7)(a) A single mobile home dwelling on an individual lot outside of the R-MC zone district is a nonconforming use and shall be removed within 5 years.
6-8(C)(7)(b) A nonconforming use of land and incidental structures consisting of a mobile home development may remain for the life of the structures, which shall never be more than 30 years, but only if all of the following provisions apply:
1. This use does not cease operation for a period of 1 year.
2. Any private street system servicing the mobile home dwellings is paved at least to a standard approved by the City Engineer according to the applicable standards of this IDO and related DPM standards and criteria, even though there may be no new subdivision.
3. Mobile home dwellings are skirted with materials similar in appearance and durability to the siding of the mobile home, or the unit is situated at ground level, within 2 years of the use becoming nonconforming.
6-8(C)(7)(c) Any additional development on a lot that includes 1 or more mobile home dwellings shall conform to the regulations in this IDO.
6-8(C)(7)(d) For changes of use or rezoning of developments that include mobile homes that will result in expiration or termination of resident occupancy, the standards in Subsection 14-16-2-3(C)(3)(g) (R-MC Zone District Standards) apply, regardless of the zone district the development is in.
6-8(D) NONCONFORMING STRUCTURES
6-8(D)(1) Authority to Continue
Unless specified otherwise in this Section 14-16-6-8, a nonconforming structure shall be allowed to continue to be used, regardless of any change in ownership or occupancy of the structure, until the structure is vacant for a period of 2 years, or until another provision of this Section 14-16-6-8 requires the termination of the use. Mobile home dwellings are subject to provisions in Subsection 14-16-6-8(C)(7) (Mobile Home Dwellings). Signs are subject to provisions in Subsection 14-16-6-8(F) (Nonconforming Signs).
6-8(D)(2) Repair and Maintenance
A nonconforming structure may be maintained, repaired, or altered, but no maintenance, repair, or alteration may increase the extent of nonconformance.
6-8(D)(3) Height Nonconformance
A structure nonconforming as to height regulations cannot be added to or enlarged unless the addition or enlargement conforms to all the regulations of the zone district in which it is located.
6-8(D)(4) Setback Nonconformance
A structure nonconforming as to setback regulations cannot be added to or enlarged unless the addition conforms to all the regulations of the zone district in which the structure is located.
6-8(D)(5) Expansion of Nonconforming Structure
A nonconforming structure may be expanded in size, provided that the expansion will not increase an existing nonconformity or create a new nonconformity, if approved by the ZHE pursuant to Subsection 14-16-6-6(C).
6-8(D)(6) Relocation of Nonconforming Structure
A nonconforming structure may be moved in whole or in part to another location on the lot, provided that the moving will make it nonconforming to a lesser extent.
A nonconforming structure that is damaged through natural or other causes may be restored, provided that the restoration is started within 6 months of the damage and is continued diligently to completion, unless the ZEO determines that the continued use of the structure creates a significant threat to public health or safety, even after repairs that meet the requirements in Articles 14-1. 14-2, and 14-3 of ROA 1994 (Uniform Administrative Code and Technical Codes, Fire Code, and Uniform Housing Code) are made.
6-8(D)(8) Walls and Fences
6-8(D)(8)(a) A nonconforming wall or fence may remain for the life of the structure, except that a wall or fence nonconforming because it is in a clear sight triangle may remain only if the City Engineer gives and does not withdraw a written opinion that the wall or fence is not a traffic hazard.
6-8(D)(8)(b) Walls or fences partially or completely constructed of barbed tape, barbed wire, razor wire, or similar materials where these materials are not allowed pursuant to Subsection 14-16-5-7(E)(1)(c) are considered illegal and must be removed within the following timeframes:
1. For Residential and Non-residential zone districts, as specified by the Code Enforcement Division of the City Planning Department in notice provided to the property owner.
2. For Mixed-use zone districts, by January 1st, 2023.
6-8(D)(9) Airport Protection Overlay (APO) Zone
6-8(D)(9)(a) Whenever the ZEO determines that a nonconforming structure located in the APO has been abandoned or that more than 80 percent of the structure has physically deteriorated, decayed, or demolished, such structure or obstruction shall be discontinued, demolished, and removed by the owner.
6-8(D)(9)(b) No permit shall be granted that would allow a permanent or temporary nonconforming structure to exceed the applicable height limit or otherwise deviate from standards in Section 14-16-3-3 (Airport Protection Overlay Zone) or any other applicable standards of this IDO.
6-8(E) NONCONFORMING LOTS
A lot that does not meet minimum lot size or width requirements for the zone district where it is located, particularly Subsection 14-16-5-1(C)(2) (Contextual Residential Development in Areas of Consistency), may be used without a Variance if the lot was legally created and placed on the records of the County and the use of the property is permissive, has an approved conditional use, or is legally nonconforming. At least 1 of the following must also apply:
6-8(E)(1) The existing structure(s) on the property is allowed or legally nonconforming.
6-8(E)(2) Any new structure or outdoor use proposed for the lot meets all of the following conditions:
6-8(E)(2)(a) Complies with the dimensional standards for the zone district where the lot is located to the maximum extent practicable.
6-8(E)(2)(b) Does not exceed the maximum building height allowed in the zone district where the lot is located.
6-8(E)(2)(c) Does not include any encroachments that would not be allowed pursuant to Table 5-1-4.
6-8(E)(3) Lots legally nonconforming to minimum lot width or minimum lot size requirements in the R-MH zone district shall be developed governed by the R-ML zone district standards in all respects; no Variance is required for such development.
6-8(F) NONCONFORMING SIGNS
6-8(F)(1) Authority to Continue
6-8(F)(1)(a) A nonconforming sign shall be allowed to continue in use, regardless of any change in ownership or occupancy of the structure, for the life of the physical sign structure in the size, height, lighting/illumination type, and configuration that existed at the time it became nonconforming, unless Subsection (b) below applies.
6-8(F)(1)(b) If 1 or more of the signatories to a Joint Sign Premises agreement withdraws from the agreement, the sign automatically becomes illegal and is subject to the provisions of Subsection 14-16-6-9(C) (Enforcement).
6-8(F)(2) Repair and Maintenance
A nonconforming sign may be maintained, repaired, or altered, but no maintenance, repair, or alteration may increase the extent of nonconformance.
6-8(F)(3)(a) Any modification of size, height, lighting/illumination type, or configuration or any replacement of the sign face shall conform to all requirements of Section 14-16-5-12 (Signs) and all other applicable requirements of this IDO.
6-8(F)(3)(b) Conversion of a non-electronic nonconforming sign to an electronic sign is prohibited unless the erection of a new electronic sign with the same size, height, and configuration as the nonconforming sign in that location would be allowed under Subsection 14-16-5-12(H) (Electronic Signs).
6-8(G) NONCONFORMING SITE FEATURES
6-8(G)(1) Authority to Continue
Except for property acquired by government entities (addressed in Subsection 14-16-6-8(H)), a lot that does not comply with the standards of this IDO in Sections 14-16-4-3 (Use-specific Standards); 14-16-5-3 (Access and Connectivity); 14-16-5-5 (Parking and Loading); 14-16-5-6 (Landscaping, Buffering, and Screening); 14-16-5-7 (Walls and Fences); 14-16-5-8 (Outdoor and Site Lighting); or 14-16-5-9 (Neighborhood Edges), except for the Building Height Stepdown provision, may continue to be used and occupied, and uses may be changed or expanded as allowed by other provisions of this Section 14-16-6-8, notwithstanding those nonconformities, unless and until the gross floor area of the primary building on the lot is expanded pursuant to the criteria in Subsection 14-16-6-6(C) (Expansion of Nonconforming Use or Structure), at which time any portion of the lot affected by the expansion shall be brought into compliance with any relevant standards in the Sections listed above in this provision.
6-8(G)(2) Landscaping in the APO Zone
No native vegetation or landscaping in the APO zone shall be allowed to exceed the applicable height limit or otherwise deviate from standards in Section 14-16-3-3 (Airport Protection Overlay Zone) or any other applicable standards of this IDO.
6-8(G)(3) Front Yard Parking
Parking on areas other than allowed pursuant to Subsection 14-16-5-5(F)(1)(a)6 is illegal, and such parking must be discontinued within the timeframe specified by Code Enforcement in notice provided to the property owner, with the following exceptions:
6-8(G)(3)(a) Front Yard Parking Areas in Existence Prior to June 17, 2007
1. Front yard parking areas that do not satisfy the requirements of this IDO that were improved for and specifically dedicated to use as a front yard parking area prior to June 17, 2007 (when City Council adopted O-07-61, which first regulated front yard parking), and that otherwise satisfied the requirements of all applicable regulations in place at the time of their installation, may continue to be used as front yard parking areas pursuant to the provisions of this IDO governing nonconforming uses and structures. 309
a. For the purposes of this Subsection 14-16-6-8(G)(3), “improvements” include only impervious surfaces, including but not limited to concrete, asphalt, or all-weather pervious services surfaces such as recycled asphalt or driveway gravel (as distinguishable from landscape gravel). In order to enjoy non-conforming status under this Section 14-16-6-8, any such improvements must have been installed for and be suitable for the specific purpose of front yard parking and maneuvering.
b. Where low-density residential development has an existing, improved front yard parking area, parking on unimproved surfaces such as dirt, grass, or landscape areas, or on surfaces that were improved for any purpose other than front yard parking, including but not limited to decorative gravel areas, patios, or pedestrian walkways, must be discontinued regardless of the year of development of the property or improvement.
2. Where any existing low-density residential development lacks an improved front yard parking area, and improved front yard parking areas were not required at the time of the unit’s initial development, such residential unit may continue to use a portion of the front yard for parking subject to the size and area limitations in Subsection 14-16-5-5(F)(2)(a)1.
6-8(G)(3)(b) Lawful Improvements Installed between June 17, 2007 and the Effective Date of this IDO
Front yard parking areas that do not satisfy the requirements of this IDO but that satisfied the requirements of all applicable regulations in place between June 17, 2007 and the effective date of this IDO may continue to be used for front yard parking pursuant to this Section 14-16-6-8.
6-8(H) PROPERTY ACQUISITION BY GOVERNMENT ENTITIES
No property shall be considered nonconforming solely because it fails to meet applicable lot size or dimensional standards if the reason for those failures is the acquisition of part of the property by an exercise of eminent domain or a transfer to a governmental body as an alternative to an exercise of eminent domain.
309 2020 IDO Annual Update – Citywide Text Amendment – COUNCIL REVIEW. Revised editorially to fix grammatical error.