Within the districts established by this code, some lots, uses of lands or structures, or combinations thereof may exist which were lawful prior to the effective date or amendment of this code, but that are prohibited, regulated or restricted under the terms of this code. The legitimate interests of those who lawfully established these nonconformities, especially when dealing with a person’s residence, are herein recognized by providing for the continuance of such uses, subject to regulations limiting their completion, restoration, reconstruction, extension and/or substitution. Nevertheless, while it is the intent of this code that such nonconformities be allowed to continue until removed, they should not be encouraged to survive, unless otherwise allowed in this chapter or specifically addressed in this code.
(Ord. 21-161, passed 12-13-2021)
(a) Any structure, land or use of land or a structure that existed at the time of the effective date of this code that was legally established under a previous code amendment or versions may be continued even if such use, building, structure or use of land does not conform to the provisions of this code.
(b) Passage of this code in no way legalizes any illegal uses existing at the time of its adoption.
(c) An applicant for any development review procedure (e.g., zoning permit, site plan review, variance and the like) that deals with a nonconformity shall bear the burden of proof in demonstrating that the use was a legal nonconformity on the effective date of this code.
(Ord. 21-161, passed 12-13-2021)
(a) At the time of application for a zoning permit, or request for variance regarding a nonconforming lot, building, structure or use, the property owner shall submit sufficient evidence for the Code Administrator or ZBA, as applicable, to determine that such lot, building, structure, or use was lawfully created or established in accordance with the code regulations in existence at that time.
(b) If the evidence submitted indicates the lot, building, structure or use was legally established and has since become nonconforming because of the establishment of, or amendment to, this code, the Code Administrator shall issue a zoning permit identifying it as a legal nonconformity. A copy of such certificate shall be kept on file in the offices of the Code Administrator.
(Ord. 21-161, passed 12-13-2021)
(a) Whenever any nonconformity has been changed so that the use, structure or condition conforms to the requirements of this code, such use, structure or condition shall no longer be defined as a nonconformity, nor shall the property or structure be returned to the former nonconformity.
(b) When a property owner or authorized agent is granted a variance for a nonconformity that addresses the nonconformity, the structure or lot shall no longer be considered nonconforming. In no case shall the resolved nonconformity be expanded or altered to create further nonconformities.
(c) If a property owner or authorized agent is granted a variance for a nonconformity that addresses some nonconformities but additional nonconformities continue, the structure or condition that remains a nonconformity shall still be subject to the provisions of this chapter.
(Ord. 21-161, passed 12-13-2021)
Where, at the time of adoption of this code, lawful uses of land or structures exist that would not be permitted by the regulations of this code, the uses may be continued so long as they remain otherwise lawful and provided:
(a) Enlarging or increasing. No such nonconforming uses shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this code unless it complies with the provisions of division (d) of this section;
(b) Moving. No such nonconforming use shall be moved, in whole or in part, to any portion of the lot or parcel other than that occupied by such uses at the effective date of adoption or amendment of this code;
(c) Additional structures. No additional structures shall be constructed on a lot with a nonconforming use unless such new structure complies with the requirements of this code and the applicable zoning district;
(d) Change or substitution of nonconforming use.
(1) If no structural alterations are made that increase the nonconformity, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more restricted use, as determined by the Planning Commission. Such determination shall be made at a public hearing held in the same manner as a conditional use (see § 1214.03: Conditional Uses), including notice, but the conditional use review criteria of § 1214.03(d) shall not apply. At the hearing, the Planning Commission shall make a determination if the proposed use, which must be a permitted use in the applicable zoning district, is similar in nature and intensity, or is a more restricted use, allowable as a change or substitution under this section.
(2) Whenever a nonconforming use is changed to a less intensive nonconforming use, such use shall not thereafter be changed to a more intensive nonconforming use.
(3) Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the applicable zoning district in which such structure is located, and the nonconforming use may not thereafter be resumed.
(e) Expansion of a nonconforming use.
(1) Notwithstanding the foregoing provisions to the contrary, a structure containing a nonconforming residential use (not including mixed use buildings) may be increased or improved, regardless of the applicable zoning district, provided the structure continues thereafter to be used for residential purposes only and meets all required setbacks.
(2) Notwithstanding the foregoing provisions to the contrary, a structure containing a nonconforming, nonresidential use, may be increased or improved, regardless of the applicable zoning district, where the owner of such use can demonstrate through application to the Planning Commission (in the same manner as division (d) of this section) that the manner in which the useable area of the nonconforming use will be increased or improved will have minimal adverse impact upon adjacent properties and other permitted land uses in the surrounding neighborhood or can be made compatible with the adjacent properties and the uses in the surrounding neighborhood upon compliance with specified conditions.
(3) Factors that may be considered in determining an adverse impact include, but are not limited to:
A. Noise, odor and/or vibrations;
B. Traffic;
C. Visual impacts;
D. Access to light and air from adjoining properties;
E. Existence of screening;
F. The hours of operation;
G. The effect on the access to the property by fire, police or other public services; and
H. The predominant or prevailing land use, building and structure patterns of the surrounding neighborhoods.
(4) Variances to expand a nonconforming use into a required setback or to otherwise vary a regulation that applies to the subject site shall be prohibited.
(f) Existing use reclassified as a conditional use. In the event an existing use that was permitted by right at the time the use was established is thereafter reclassified as a conditional use in the applicable district due to a zoning text amendment, such use shall be considered to be an approved conditional use without any further action. However, any subsequent change to such use shall require review and approval in accordance with § 1214.03: Conditional Uses. Such use, provided it is conditionally permitted in the applicable district, shall not be considered a nonconforming use.
(g) Termination of nonconforming uses.
(1) Termination of use through discontinuance.
A. When any nonconforming use is discontinued or abandoned for more than six months in residential zoning districts and one year in nonresidential zoning districts, any new use shall conform to the regulations of the district in which it is located, and the nonconforming use may not thereafter be resumed. The intent to continue a nonconforming use shall not be evidence of its continuance.
B. There may be cases when a structure, or structure and premises in combination, may not be converted to a conforming use because of the original floor plan and design (e.g., townhouses in a single-family residentially zoned area). In these cases, the Planning Commission may determine that the nonconforming use may continue if the nonconforming use is the original use of the structure and/or premises. Appropriate safeguards, conditions and design standards may be required by the Planning Commission so as to minimize the impact of such continuance on the area.
(2) Termination of use by damage or destruction.
A. If a nonconforming single-family dwelling use, in any district, is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot provided it meets the same size in height and footprint, as well as complying with the same setbacks as previously existed.
B. If any nonconforming use, other than a single-family dwelling, is damaged, but not to an extent greater than 50% of the principal structure’s market value according to the Lorain County Auditor, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit, which must be issued within six months of the damage or the use shall not be reestablished.
C. If any nonconforming use, other than a single-family dwelling, is damaged beyond 50% of the principal structure’s market value according to the Lorain County Auditor, such structure and use may only be reestablished with approval by the Planning Commission after consideration of surrounding uses and the impact of the nonconforming use.
D. If the city and the owner cannot agree as to the market value of the building or structure, the market value shall be determined by a panel of three appraisers, one of which is selected by the city, one by the owner and, the third by agreement of the other two appraisers.
(Ord. 21-161, passed 12-13-2021)
A nonconforming structure or site may continue to be used or occupied by a use permitted in the applicable zoning district so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following provisions.
(a) Any nonconforming structure or site may be enlarged, maintained, repaired or altered provided, however, no such enlargement, maintenance, repair or alteration shall either create an additional nonconformity or increase the degree of the existing nonconformity of all or any part of such structure or site, unless otherwise specified in this code.
(b) A nonconforming structure shall not be relocated in whole or in part to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the applicable zoning district after being relocated.
(c) The principal use of a nonconforming building may be changed to any other use permitted in the applicable zoning district as long as the new use complies with all regulations of this code specified for such use, except the regulations to which the building did not conform prior to the change in use.
(d) The governmental acquisition of a portion of a lot for a public purpose that results in reduction in a required yard or building setback below that required in the applicable zoning district shall not render a structure nonconforming.
(e) Damage or destruction of a nonconforming structure containing a conforming use.
(1) If a nonconforming structure is damaged, but not to an extent greater than 50% of the structure’s reproduction value, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit within one year of the initial damage. If an owner rebuilds a legally nonconforming structure under this provision, they may expand the structure provided any expansion or change does not increase the nonconformity that existed prior to the damage.
(2) If a nonconforming structure is damaged beyond 50% of the structure’s reproduction value, such structure shall only be rebuilt in compliance with the requirements of this code. Such reconstruction shall require the application and issuance of all necessary zoning and building permits.
(3) If the owner voluntarily removes the structure or reduces the nonconformity, that has not been damaged or destroyed, that owner shall not be permitted to rebuild the structure to the original height, size or setback.
(4) The determination of the reproduction value shall be made by three practicing building construction contractors, one to be appointed by the owner, one to be appointed by the city and the third to be selected by the mutual consent of the two parties.
(Ord. 21-161, passed 12-13-2021)
(a) In any R-1A, R-1B, R-1C or R-1D zoning district, a single-family dwelling and customary accessory uses may be erected on any single lot of record that was legally created on or before the effective date of this code, or as amended, notwithstanding limitations imposed by other provisions of this code. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. Such lot shall also have frontage on a public street or on a private street in an approved subdivision. These provisions shall apply even though such lot fails to meet the requirements for area or width, or both, generally applicable in the district, provided that yard dimensions and requirements, other than those applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. A request to vary the site development standards shall only be allowed through the issuance of a variance.
(b) Vacant single nonconforming lot of record on improved street: when a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimum lot area and/or lot width set forth in the district regulations and that the lot is located on a street in an existing platted subdivision where all improvements on the street have been completed and accepted by the city as of January 1, 2004, then the lot may be used as proposed just as if it were conforming, provided each of the following lot conditions are met:
(1) Identified with a separate permanent parcel number as of January 1, 2004;
(2) Has never been combined with another lot;
(3) Has a minimum street frontage of 35 feet;
(4) Does not contain any primary or accessory structure as of January 1, 2004; and
(5) Is not in an R-1A zoning district.
(c) Vacant single nonconforming lot of record on unimproved street: when a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimum lot area and/or lot width set forth in the district regulations and that the lot is located on a street in an existing platted subdivision where no improvements on the street have been completed and/or accepted by the city as of January 1, 2004, then the lot may be used as proposed just as if it were conforming, provided each of the following lot conditions are met:
(1) The lot was of record on or before September 14, 1953 and the owner thereof at that time did not own any adjoining lot;
(2) No adjoining lot or adjoining parcel of land with continuous frontage was in the same ownership on the effective date of this code, being Ordinance 52-99, passed 3-22-1999;
(3) No adjoining lot or adjoining parcel of land with continuous frontage is in the same ownership as a result of acquisition after the effective date of this revision of Ordinance 52-99, passed 3-22-1999; and
(4) Is not in an R-1A, R-1B, R-1C, or R-1D Zoning District.
(d) If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this code, and if all or part of the lots do not meet the requirements established for lot frontage and area, the lands involved shall be considered to be an undivided parcel for purposes of this code and shall be legally combined prior to the issuance of any permits in accordance with the zoning lot provisions of § 1226.01(b)(2). No portion of such parcel shall be used or sold in a manner which diminishes compliance with lot frontage and area requirements established by this code, nor shall any division of any parcel be made which creates a lot frontage or area below the requirements stated in this code.
(Ord. 21-161, passed 12-13-2021)
See § 1236.12: Nonconforming Signs for the regulation of nonconforming signs.
(Ord. 21-161, passed 12-13-2021)
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