§ 21.504  NONCONFORMITY.
   (a)   Purpose and intent. It is the purpose and intent of this section to:
      (1)   Allow nonconforming structures, uses, site characteristics and lots to continue to exist and be put to reasonable and productive use;
      (2)   Encourage such nonconformities to be brought into compliance when reasonable to do so;
      (3)   Establish the requirements under which nonconformities may be operated and maintained;
      (4)   Diminish the impacts of nonconformities on adjacent properties by limiting the expansion of nonconformities;
      (5)   Clarify the level of site modifications that may occur before nonconformities are required to be brought into compliance with current standards; and
      (6)   Comply with M.S. § 462.357, subd. 1e, as it may be amended from time to time.
   (b)   Definitions. The following terms and accompanying definitions are used in the context of nonconformities. Where the terms are used elsewhere in the code outside of the context of nonconformities, their meaning may have an alternate definition as otherwise defined in their respective section of the code.
      DESTROYED STRUCTURES. For the purposes of nonconformities, a structure is destroyed if its total assessed market value (including structures and land) is diminished by greater than 50% as determined by the most recent valuation of the City Assessor.
      DISCONTINUED. For the purposes of nonconformities, the cessation of a use, or removal of a structure or site characteristic for a continuous period of more than one year.
      EXPANSION OF A NONCONFORMITY. Includes:
         (A)   For nonconforming uses, an increase in the site or floor area devoted to the use; an increase in the site area devoted to parking, open storage or outdoor display; an increase in the number of dwelling units or hotel rooms; or a relocation of the use to a structure or portion of the site not previously occupied by the use.
         (B)   For nonconforming lots, a change to the lot size, lot width or other lot feature that would increase the level of lot nonconformity.
         (C)   For nonconforming structures, a change to the structure dimension, size, area, volume, height, floor area or other structure feature that would increase the level of structure nonconformity.
         (D)   For nonconforming site characteristics, a change to site characteristics including size, height, area, opacity, coverage or other feature that would increase the level of site characteristic nonconformity.
      IMPROVEMENT. Where a nonconforming use is made more compatible with the use of adjacent properties, efficient, and/or more aesthetically pleasing. For the purposes of nonconformities, an IMPROVEMENT does not include an expansion.
      LEGALLY CONFORMING. The status of any land use, structure, physical form of land development, parcel or sign that complies with the current city code and received any required approvals.
      MAINTENANCE. Normal repair, restoration and improvement including cosmetic changes. For the purposes of nonconformities, MAINTENANCE does not include new construction or expansion of a use or structure.
      NONCONFORMING LOT. A lot lawfully established prior to the effective date of the city code, or subsequent amendments to it, which fails to meet requirements for lot area, and/or width, depth, lot frontage or other requirement of the existing city code.
      NONCONFORMING SITE. A site lawfully established prior to the effective date of the city code, or subsequent amendments to it, which fails to meet requirements of the existing city code.
      NONCONFORMING SITE CHARACTERISTICS. A site characteristic lawfully established prior to the effective date of the code, or subsequent amendments to it, which fails to meet requirements of the existing city code. For the purposes of nonconformities, SITE CHARACTERISTICS are physical improvements to the site beyond structures, and may include, but are not limited to: impervious surface coverage, storm water facilities, parking and parking lots, driveway surfaces, screening, fences, landscaping, sidewalks, patios, human-made water features such as ponds or swimming pools and similar features.
      NONCONFORMING STRUCTURE. A structure that was legally conforming at the time it was constructed but which does not comply with the current city code.
      NONCONFORMING USE. A use that was legally conforming at the time it was established but which does not comply with the current city code.
      NONCONFORMITY. Any use, structure, site characteristic or parcel of land which existed lawfully at the effective date of a zoning ordinance or subdivision ordinance, has been continued since that time but which would not have been permitted to become established under the terms of the city code as now written.
      NONCONFORMITY, LEGAL. A nonconformity that was legally conforming at the time it was established and received all required approvals.
      NONCONFORMITY, ILLEGAL. A nonconformity that was not legal at the time it was established or did not receive all required approvals.
      OPERATIONAL CHARACTERISTICS. Include, but are not limited to, hours of operation, where a vehicle may park, electronic sign operating characteristics, use of outdoor loud speakers, auto dealer test drive routes, unloading of auto dealer vehicles, noise, traffic generation, exterior storage, odors, lighting operation and similar operational activities.
      REPAIR. For the purposes of nonconformities, REPAIR means to restore to good condition by replacing or reassembling broken, worn out or malfunctioning components. REPAIR does not include expansion.
      REPLACEMENT. Construction that provides a substitute substantially equivalent to the pre-existing conditions that preceded damage or destruction.
      RESTORATION. For the purposes of nonconformities, RESTORATION means to restore or repair to good condition by replacing or reassembling broken, worn out or malfunctioning components. RESTORATION does not include expansion.
   (c)   Standards.
      (1)   Rights. Pursuant to M.S. § 462.357, subd. 1e, as it may be amended from time to time, any nonconformity, including the lawful use or occupation of land or premises existing at the time a city code amendment created the nonconformity, may be continued with any necessary approvals, including through repair, replacement, restoration, maintenance or improvement, but not including expansion, unless authorized by this section.
      (2)   Expansion prohibited. Nonconformities may not be expanded, unless expressly permitted as discussed below.
         (A)   Nonconforming uses may expand upon issuance of a conditional use permit only when such expansion is expressly listed as a conditional use within the applicable zoning district.
         (B)   Nonconforming lots may expand only upon approval of a variance or planned development zoning that allows the proposed level of nonconformity.
         (C)   Nonconforming structures may expand only upon approval of a variance or planned development zoning that allows the proposed level of nonconformity, except as provided in § 21.208.02(e)(1)(A)(i)(cc).
         (D)   Nonconforming site characteristics may expand only upon approval of a variance or planned development zoning that allows the proposed level of nonconformity.
      (3)   Termination of rights.
         (A)   A legal nonconforming use must not resume where:
            (i)   The use is discontinued for a period of more than one year; or
            (ii)   The use is destroyed by fire or other peril to the extent of greater than 50% of its market value and no building permit has been applied for within 180 days of when the property is damaged. The assessed market value (including buildings and land) must be determined by the most recent valuation of the City Assessor.
         (B)   Where any right to continue the nonconformity is terminated, any future use of land must comply fully with the city code.
         (C)   Where nonconforming uses are removed or otherwise discontinued, requirements providing for expiration of variances, interim use permits and conditional use permits are set forth in § 19.23.01.
      (4)   Conformance triggers. Nonconformities must be brought into conformance upon the following events.
         (A)   Nonconforming uses. Nonconforming uses must be brought into conformance with current requirements of the city code upon:
            (i)   Change of the use;
            (ii)   Discontinuance of the use; or
            (iii)   Destruction of the use, provided no building permit is applied for within 180 days of the date of destruction. The city may impose reasonable conditions on the building permit to mitigate newly created impacts on adjacent properties.
         (B)   Nonconforming lots. Nonconforming lots must be brought into conformance with current lot requirements of the city code upon:
            (i)   Subdivision or replatting of the lot.
         (C)   Nonconforming structures. Nonconforming structures must be brought into conformance with current structure requirements of the city code upon:
            (i)   Destruction or removal of the structure; or
            (ii)   Relocating the structure.
         (D)   Nonconforming site characteristics. Nonconforming site characteristics must be brought into conformance with current site characteristic requirements of the city code upon:
            (i)   Redevelopment of the site or expansion of total floor area on the site by 25% or greater;
            (ii)   Destruction or removal of the site characteristic;
            (iii)   Issuance of a permit for a related site characteristic, if conformance is stipulated as a condition of permit approval;
            (iv)   Change of use of the site (only for use generated requirements, including, but not limited to, the number of parking spaces and trash storage requirements);
            (v)   Other events listed as specific triggers in the various city code sections on site characteristic standards; or
            (vi)   A determination by the issuing authority that the site characteristic must be brought into conformance to protect the public health, safety and welfare.
         (E)   Operational characteristics. Operational characteristics must be brought into conformance immediately upon a change in city code unless otherwise specified in the city code.
      (5)   Nonconforming signs. Nonconforming signs are regulated as specified in Chapter 19, Article X, Sign Regulations.
      (6)   Unsafe situations. Nothing in this section should be construed to permit the continued use of a structure or site found to be in violation of building, basic life safety or health codes of the city.
(Ord. 2008-1, passed 1-14-2008; Ord. 2008-13, passed 4-21-2008; Ord. 2009-1, passed 1-26-2009; Ord. 2011-6, passed 2-28-2011; Ord. 2015-3, passed 1-26-2015; Ord. 2020-19, passed 6-1-2020)