ARTICLE 5:  NONCONFORMITIES
Section
5.1   General applicability
5.2   Nonconforming uses
5.3   Nonconforming structures
5.4   Nonconforming lots of record
5.5   Nonconforming signs
5.6   Nonconforming manufactured homes
5.7   Nonconforming religious and civic institutional uses in the Highway Business, Light Industrial, or Heavy Industrial Zoning Districts
§ 5.1  GENERAL APPLICABILITY.
   5.1.1   Purpose and scope.
   (A)   General. In the provisions established by this ordinance, there exist uses of land, structures, lots of record, and signs that were lawfully established before this ordinance was adopted or amended, that now do not conform to its terms and requirements. The purpose and intent of this article is to regulate and limit the continued existence of those uses, structures, lots of record, and signs that do not conform to the provisions of this ordinance, or any subsequent amendments.
   (B)   Permit, but not encourage nonconformities to continue. It is the intent of this ordinance to permit most of these nonconformities to continue until they are removed, but not to encourage their continuance except under the limited circumstances established in this article. The provisions of this article are designed to curtail substantial investment in nonconformities.
   5.1.2   Authority to continue. Nonconformities are allowed to continue in accordance with the requirements of this article, and are encouraged to receive routine maintenance as a means of preserving safety and appearance.
   5.1.3   Determination of nonconforming status. In all cases, the burden of establishing that a nonconformity lawfully exists shall be the responsibility of the owner of the land on which the alleged nonconformity is located.
   5.1.4   Minor repairs and maintenance. Minor repairs and normal maintenance that are required to keep nonconforming uses, structures, lots of record, and signs in a safe condition are permitted, provided the minor repair or maintenance does not extend, expand, or enlarge the nonconforming use, structure, lot of record, or sign. For the purposes of this section, MINOR REPAIR OR NORMAL MAINTENANCE shall mean:
   (A)   Maintenance of safe condition. Repairs that are necessary to maintain a nonconforming use, structure, lot of record, or sign in a safe condition; and
   (B)   Maintenance of land for safety. Maintenance of land areas to protect against health hazards and promote the safety of surrounding land, structures, and uses.
§ 5.2  NONCONFORMING USES.
   5.2.1   General. Nonconforming uses are declared generally incompatible with the permitted uses in the district in which they are located and with the provisions of this ordinance. Nonconforming uses shall be subject to the standards in this section.
   5.2.2   Change of use. A nonconforming use shall not be changed to any other nonconforming use. Once a nonconforming use has ceased operation or has been discontinued for a period of 180 days or longer, it shall only be replaced with a conforming use.
   5.2.3   Expansion and enlargement. Except in accordance with this division, a nonconforming use shall not be enlarged, expanded in area occupied, or intensified. An existing nonconforming use may be enlarged into any portion of the structure where it is located, provided the area proposed for expansion was designed and intended for such use prior to the date the use became a nonconformity.
   5.2.4   Discontinuance. A nonconforming use shall not be reestablished after discontinuance for a period of 180 consecutive calendar days or more. An effort to renovate the structure housing the use is not considered a vacancy, abandonment, or discontinuance, provided all appropriate development approvals are obtained, and provided the renovation is completed within 180 days from its commencement, and the use is re-established within 30 days from the time the renovation is completed. Failure to complete the renovation within 180 days or reestablish the use within 30 days following renovation shall constitute discontinuance, and a nonconforming use shall not be reestablished in the structure.
   5.2.5   Accessory uses. Once a nonconforming principal use is discontinued, all associated accessory uses shall cease operation within 30 days.
   5.2.6   Reconstruction after casualty damage.
   (A)   Destruction or damage beyond 50% of value.
      (1)   In the event a structure housing a nonconforming use is damaged or destroyed, by any means, to an extent of more than 50% of its structural replacement cost at the time of damage or destruction, the nonconforming use may not be reestablished following reconstruction.
   (B)   Damage of 50% or less of value.
      (1)   In the event a structure housing a nonconforming use is damaged, by any means, to an extent of 50% or less of its structural replacement cost at the time of damage, it may be repaired to its previous form, and the nonconforming use reestablished, if a building permit for such repair or restoration is obtained within 180 days of the casualty damage, and the repair or restoration is completed within one year of obtaining the building permit.
      (2)   In no case shall a different nonconforming use be established in the place of the nonconforming use that was housed in the structure at the time of casualty damage.
§ 5.3  NONCONFORMING STRUCTURES.
   5.3.1   Continuation. Normal repair and maintenance may be performed to allow the continued use of nonconforming structures.
   5.3.2   Enlargement. A nonconforming structure shall not be enlarged or expanded in any way that increases the degree of nonconformity. (For example, a structure that has a five-foot side yard setback where the ordinance requires a ten-foot side yard setback cannot be enlarged so as to further encroach into the side yard setback.) Expansion of the structure in a way that complies with applicable dimensional standards or that decreases the degree of nonconformity is permitted.
   5.3.3   Relocation. A nonconforming structure shall not be moved, in whole or in part, to another location within the town’s jurisdiction, on or off the parcel of land on which it is presently located, unless upon relocation it conforms to the requirements of this ordinance.
   5.3.4   Reconstruction after casualty damage.
   (A)   Destruction or damage beyond 50% of value.
      (1)   In the event a nonconforming structure (or portion of a structure) is damaged or destroyed, by any means, to an extent more than 50% of its structural replacement cost at the time of damage or destruction, it shall only be restored in a manner that conforms with the provisions of this ordinance.
      (2)   New construction (including the establishment of off-street parking, landscaping, signage, and other site features) shall be in accordance with the requirements of this ordinance.
   (B)   Damage of 50% or less of value.
      (1)   In the event a nonconforming structure is damaged, by any means, to an extent of 50% or less of its structural replacement cost at the time of damage or destruction, it may be rebuilt to its previous form if a building permit for such repair or restoration is obtained within 180 days of the casualty damage, and repair or restoration is completed within one year of obtaining the building permit.
      (2)   In no event shall the repair or restoration increase the degree of nonconformity.
§ 5.4  NONCONFORMING LOTS OF RECORD.
   No use or structure shall be established on a nonconforming lot of record except in accordance with the standards in this section.
   5.4.1   Status of nonconforming lots.
   (A)   Conforming structures legally established on nonconforming lots of record prior to the effective date of this ordinance may be continued, enlarged, extended, reconstructed, or structurally altered in any way that is in conformance with the standards of this ordinance.
   (B)   Nonconforming structures legally established on a nonconforming lot prior to the effective date of this ordinance may be continued, enlarged, or redeveloped only in accordance with the standards in § 5.3, Nonconforming Structures.
   5.4.2   Development of unimproved lots.
   (A)   Residential districts. In the residential zoning districts, notwithstanding limitations imposed by other provisions of this ordinance, a single-family detached dwelling and customary accessory structures may be developed on any single lot of record existing on October 1, 2008. This provision applies even if the lot of record fails to comply with the standards for area or width in § 6.7, Dimensional Standards. Development of a single-family detached dwelling on the lot of record shall comply with the other standards in § 6.7, Dimensional Standards, to the maximum extent practicable.
   (B)   Nonresidential districts. In the nonresidential zoning districts, notwithstanding limitations imposed by other provisions of this ordinance, a permitted use may be developed on any single nonconforming lot of record existing on October 1, 2008, or the date the lot of record became nonconforming, subject to review and approval of a special use permit. This provision shall apply even though the lot of record fails to comply with the standards for lot area that are applicable in the zoning district. In considering the application for a special use permit, the Board of Adjustment shall ensure the design and location of the proposed use is compatible with surrounding uses. Development of the permitted use on the lot of record shall comply with the other standards in § 6.7, Dimensional Standards, to the maximum extent practicable.
   (C)   Recombination required. In the event that a vacant nonconforming lot is located adjacent to a lot under common ownership, and the adjacent lot has sufficient size to allow for a lot line adjustment as a means of bringing the vacant lot closer into conformity with the requirements of the zoning district where its located, then such lot line adjustment shall be required as a condition of approval for development on the vacant nonconforming lot.
   5.4.3   Redevelopment of improved lots in residential districts after casualty. If a legally established single-family attached or detached use is destroyed by casualty on a nonconforming lot in a residential zoning district that was part of a subdivision or division of land evidenced by plat or deed, or both, recorded prior to October 1, 2008, an identical replacement structure may be reconstructed within the same footprint as the use destroyed by casualty even though the lot does not meet the minimum lot area or lot width requirements.
   5.4.4   Government acquisition of land in a residential district. Governmental acquisition of a portion of a lot for a public purpose that results in a reduction in lot width and/or lot area below that required in § 6.6, Dimensional Standards, shall not render the lot nonconforming.
   5.4.5   Change of nonconforming lots. A nonconforming lot may be increased in area, width, or both, through a lot line adjustment in accordance with the requirements of the recombination plat procedures, to make the lot less nonconforming.
§ 5.5  NONCONFORMING SIGNS.
   5.5.1   General standards. No nonconforming sign shall be used, erected, altered, repaired, or relocated except in accordance with the standards of this section.
   5.5.2   Nonconforming signs protected.
   (A)   Any sign that was lawfully erected prior to October 1, 2008, but that does not conform in one or more respects with the requirements of this ordinance may remain in use, subject to the requirements of this section and other applicable requirements of this ordinance. No activity that increases the amount of nonconformity shall be permitted.
   (B)   A nonconforming sign may not be moved or replaced except to bring the sign into complete conformity with this ordinance. Once a nonconforming sign is removed from the premises or otherwise taken down or moved, the sign may only be replaced with a sign which is in conformance with this ordinance.
   5.5.3   Routine repairs and maintenance.
   (A)   Repairs and maintenance of nonconforming signs, such as repainting and electrical repairs, shall be permitted, provided such activities are completed in accordance with the requirements in Article 12, Sign Regulations, and provided that the cost of repairs do not exceed 50% of the replacement value of the sign.
   (B)   Nonconforming signs representing a danger to the public health or safety as determined by the Ordinance Administrator shall be immediately replaced or removed, and replacement signage shall comply with all requirements of this ordinance.
   5.5.4   Replacement required.
   (A)   Single tenant buildings. In the event there is a change in use to an existing single tenant building, and there are one or more on-premises nonconforming signs which advertised the business or use which changed, the owner or new occupant shall replace all existing nonconforming signs with new signs or new sign faces that meet all sign requirements for the district as set forth in Article 12, Sign Regulations.
   (B)   Multi-tenant buildings. In the event there is a change in use to an existing multi-tenant building, and there are one or more on-premises nonconforming signs which advertised the business or use which changed, the owner or new tenant shall replace all nonconforming signs which pertain specifically to the new tenant with new signs or new sign faces that meet all sign requirements for the district as set forth in Article 12, Sign Regulations. Common signage on the property (those signs advertising more than one tenant) may not be changed or altered when a change in use occurs, except in order to bring the sign(s) into conformance with the requirements of Article 12.
   5.5.5   Damage or destruction beyond 50% of value. In the event that a nonconforming sign is damaged or destroyed from natural causes to an extent that exceeds 50% of the sign’s value, then the sign shall only be restored, repaired, or reconstructed in accordance with the standards of Article 12, Sign Regulations. In no instance shall any remnants of the former nonconforming sign structure remain on the site. In the event a nonconforming sign is damaged to an extent less than 50% of the sign’s value, the sign may be repaired in accordance with division 5.5.3, Routine Repairs and Maintenance.
   5.5.6   Abandonment.
   (A)   If a nonconforming on-premises sign which advertises a business, service, commodity, accommodation, attraction, or other enterprise or activity that has for a period of at least 180 days not been operated, conducted, or offered, that sign shall be deemed abandoned and shall be removed or brought into compliance by the sign owner, landowner, or other person having control over the sign within 30 days.
   (B)   If a nonconforming sign remains blank for a continuous period of 180 days, that sign shall be deemed abandoned and shall, within 30 days after such abandonment, be brought into compliance with this ordinance or be removed by the sign owner, owner of the land where the sign is located, or other person having control over the sign. For purposes of this ordinance, a sign shall be deemed “blank” if:
      (1)   It advertises a business, commodity, accommodation, attraction, service, or other enterprise or activity that is no longer operating or being offered or conducted in that location;
      (2)   The advertising message it displays becomes illegible in whole or substantial part; or
      (3)   It does not contain an advertising message. (For such purposes, the terms “Sign For Rent”, “Sign For Lease”, “Building For Rent”, “Building For Lease”, “Building for Sale”, and the like shall not be deemed to be an advertising message.)
   (C)   Signs advertising a use or structure that has been demolished or moved to another site shall be removed within 60 days following demolition or relocation. In the event an existing use or structure has been demolished or moved to facilitate new construction, all signage associated with the new construction shall comply with the standards in Article 12, Sign Regulations.
§ 5.6  NONCONFORMING MANUFACTURED HOMES.
   5.6.1   General. A preexisting nonconforming manufactured home located on an individual lot or within a nonconforming manufactured home park may only be replaced or relocated in accordance with the terms of this section.
   5.6.2   Removal and replacement. When a preexisting nonconforming manufactured home is removed from an individual lot or a nonconforming manufactured home park, it may only be replaced on a one-for-one basis. No increase in the number of manufactured homes on an individual lot or within a nonconforming manufactured home park is allowed under any circumstances.
   5.6.3   Standards for replacement. All manufactured homes installed to replace a preexisting nonconforming manufactured home on an individual lot or in a nonconforming manufactured home park must be constructed to the National Manufactured Housing Construction and Safety Standards of July 1, 1976 (HUD Code) and other subsequent regulations enacted by the U.S. Department of Housing and Urban Development that were in place at the time of its construction.
   5.6.4   Relocation. Manufactured homes which are located within the jurisdiction of this ordinance prior to October 1, 2008 may, without regard to their date of manufacture, be relocated to another individual lot or manufactured home park located within the town’s jurisdiction that is within a zoning district that allows manufactured homes on individual lots.
   5.6.5   Continuation. Preexisting nonconforming manufactured homes on individual lots and in nonconforming manufactured home parks which are located within a residential zoning district may continue in existence indefinitely and may be replaced in conformance with the provisions of this section.
   5.6.6   Amortization. Manufactured homes in nonconforming manufactured home parks which are located within a nonresidential zoning district must be removed from the nonconforming manufactured home park by October 1, 2023. Replacement of individual manufactured homes within these nonconforming manufactured home parks shall be allowed in conformance with the provisions of this division until October 1, 2018. Following that date, no manufactured home which is removed may be replaced.
§ 5.7  NONCONFORMING RELIGIOUS AND CIVIC INSTITUTIONAL USES IN THE HIGHWAY BUSINESS, LIGHT INDUSTRIAL, OR HEAVY INDUSTRIAL ZONING DISTRICTS.
   5.7.1   General. A preexisting nonconforming religious or civic institutional use in the Highway Business (HB), Light Industrial (LI), or Heavy Industrial (HI) Zoning Districts may only be expanded, repaired, reconstructed, or restored in accordance with the terms of this section. This division only applies to the HB, LI, or HI Zoning Districts.
   5.7.2   Change of use. A nonconforming religious or civic institutional use shall not be changed to any other nonconforming use. Once a nonconforming religious or civic institutional use in the HB, LI, or HI Zoning District has ceased operation or has been discontinued for a period of 12 months or longer, it shall only be replaced with a conforming use.
   5.7.3   Expansion and enlargement. Except in accordance with this division, a nonconforming use shall not be enlarged, intensified, or expanded in area occupied. An existing nonconforming religious or civic institutional use may be enlarged or expanded into any portion of the structure in which it is located. An existing nonconforming religious or civic institutional use in the HB, LI, or HI Zoning District may expand or enlarge an existing structure, or add new structures on the property.
   5.7.4   Continuation. Preexisting nonconforming religious or civic institutional uses in the HB, LI, or HI Zoning Districts may continue in existence indefinitely and such nonconforming uses may be expanded and the structures housing such uses may be expanded, repaired, reconstructed, or restored in conformance with the provisions of this section. Nonconforming structures may not be expanded.
   5.7.5   Discontinuance.
   A nonconforming religious or civic institutional use in the HB, LI, or HI Zoning District shall not be reestablished after the use is discontinued on the property for a period of 12 months or more. An effort to renovate the structure housing the use is not considered a vacancy, abandonment, or discontinuance, provided all appropriate development approvals are obtained prior to the use being interrupted on the property and provided the renovation is completed within 12 months from its commencement and the use is re-established within 30 days from the time the renovation is completed as evidenced by a certificate of occupancy. Failure to either complete the renovation within 12 months from its commencement or reestablish the use within 30 days following renovation shall constitute discontinuance, and a nonconforming use shall not be reestablished.
   If a nonconforming religious or civic institutional use ceases using the property, a different religious or civic institution may resume the use on the property and operate as a nonconforming use, provided such new nonconforming activity is commenced within 12 months of the discontinuance of the use by the prior nonconforming religious or civic institutional use.
   5.7.6   Accessory uses or structures.
   A preexisting nonconforming religious or civic institutional use in the HB, LI, or HI Zoning District may add accessory uses or structures, provided such uses or structures comply with the ordinance and all appropriate state and local laws and regulations and are appropriately permitted.
   New cemeteries are not permitted as accessory uses for nonconforming religious or civic institutional uses in the HB, LI, or HI zoning district.
   5.7.7   Repair. Minor repairs and normal maintenance as described in division 5.1.4 are permitted.
   5.7.8   Reconstruction or restoration after casualty damage. In the event a structure housing a nonconforming religious or civic institutional use in the HB, LI, or HI Zoning Districts is damaged or destroyed by any means, the nonconforming use may be reestablished provided a building permit for such repair or restoration is obtained within one year of the damage or destruction, and repair or restoration is completed within one year of obtaining the building permit.