(A) Applicability
(1) Enlargement, expansion, alteration, or major repair of a nonconforming structure or nonconforming use shall be deemed a "special use" and shall occur only if approved by the Zoning Board of Adjustment in accordance with the procedures and standards set forth in Section 3.8 of this Ordinance and also the requirements of this section.
(2) However, the re-use or redevelopment of a nonconforming structure or nonconforming site that houses a conforming use shall not be required to obtain a special use permit or undergo development plan review if the requirements of Section 3.11 are met.
(B) Development Plans
Development plans, which shall be reviewed concurrently with the application for a special use, shall be required for the following activities under this section:
(1) Re-establishment of a nonconforming use following abandonment of a previous non-conforming use.
(2) Any enlargement, expansion, alteration or major repair of a nonconforming structure or a conforming structure on a nonconforming site when such structure houses a nonconforming use, or when such structure houses a conforming use and the provisions of Section 3.11 are not applicable.
(3) Establishment of a nonconforming use with a greater intensity (based on the Tables of Permitted Uses in Section 5.1 of this Ordinance) subsequent to an existing non-conforming use, whether cessation occurred or not.
(C) Findings
After holding the hearing on the special use, the Zoning Board of Adjustment shall determine whether to approve the proposed enlargement, expansion, alteration, or major repair. The Zoning Board of Adjustment shall not approve the proposed activity unless and until it finds, based on the evidence and testimony received at the hearing or otherwise appearing in the record of the case, that the proposed enlargement, expansion, alteration, or major repair meets the standards of review set forth in Section 3.8.3, Approval Criteria, of this Ordinance, as well as the following:
(1) The nonconforming use allowed to continue remains compatible with adjacent land uses and the Comprehensive Plan;
(2) That all access roads and entrance or exit drives to the nonconformity will be adequate with respect to automotive and pedestrian safety and convenience, traffic flow, and control and access in the case of fire or other emergency;
(3) That all off-street parking, loading, refuse collection, and other service areas will be adequate with respect to automotive and pedestrian safety and convenience, traffic flow, and economic, noise, glare, odor, and other impacts on adjoining properties;
(4) That all water, wastewater treatment, schools, fire and police protection, and other necessary public and private utilities and services will be adequate with respect to their location, availability, and compatibility with adjoining properties;
(5) That all landscaping, screening, and fencing will be adequate, with respect to the effectiveness of their type, dimensions, and character, will be adequate with respect to minimizing the economic, noise, glare, odor, and other impacts of the nonconformity on adjoining properties and other properties in the neighborhood;
(6) That the type, size, and intensity of the proposed special use, including such considerations as storage of items and arrangement, the size of the site and the location of the use upon it, and the hours of operation and numbers of people who are likely to utilize or be attached to the use, will be adequate with respect to minimizing the impact of the nonconformity upon adjoining properties, other properties in the neighborhood, and the purposes of the zoning district in which the property is located; and
(7) Surface drainage will be adequate with respect to on-site and off-site erosion, siltation, pollution, flooding, or other detrimental effects of the nonconformity.
(D) Other Considerations
In determining whether the proposed extension, alteration, or major repair will substantially injure the value, use, and enjoyment of other properties, the Zoning Board of Adjustment shall also consider and balance:
(1) The possible detriment or benefit to the owner of the nonconformity resulting from denying the approval, from approving the request but requiring that the nonconformity be brought wholly or partially into compliance, or from approving the request;
(2) The possible detriment or benefit to the owners of nearby properties resulting from denying the approval, from approving the request but requiring that the nonconformity be brought wholly or partially into compliance, or from approving the request; and
(3) The possible detriment or benefit to the general public resulting from denying the approval, from approving the request but requiring that the nonconformity be brought wholly or partially into compliance, or from approving the request.
(E) Conditions
The Zoning Board of Adjustment may impose any conditions on approval of the request, including appropriate time limits for meeting those conditions, as it deems necessary to mitigate any potential hazards or problems, or to bring the nonconformity into compliance to the extent necessary to protect the rights and interests of nearby property owners and the general public.
(F) Limits on Expansion
If the Zoning Board of Adjustment permits a non-conforming use to expand, then the following shall apply:
(1) The area of such expansion shall not exceed twenty-five (25) percent of the area of the existing non-conforming use, unless otherwise allowable in this Section;
(2) Radio, TV, and telecommunication towers may be expanded by more than twenty-five (25) percent to permit the co-location of a second or subsequent user or communications sending or receiving device so that the need for an additional tower is eliminated. Only the Zoning Board of Adjustment may permit the expansion of a non-conforming communication tower in a residential or non-residential zoning district, and then only by approving a Special Use Permit (see Section 3.8);
(3) Land uses listed in Table 5.1-2 in a use category of "Vehicles and Equipment" or "Warehouse and Freight Movement" legally-established prior to July 1, 2003 located on parcels within the HMXD (High Intensity Mixed Use) and MXD (Mixed Use) subdistricts of the Town Center (TC) District (see Section 4.2) shall not be considered as nonconforming uses, and as such may be allowed to expand beyond twenty-five (25) percent without a Special Use Permit (see Section 3.8).
(G) Limits on Requirements
In acting upon applications for such special uses, the Zoning Board of Adjustment shall not order the discontinuation or termination of nonconformity. If an application is denied, then the continuation, maintenance, and minor repair of the nonconformity shall still be allowed in accordance with the terms of this chapter.
(H) Exception for Setbacks for Detached Dwellings
(1) Detached dwellings with nonconforming setbacks are exempt from the requirements of this section if the following findings can be made:
(a) The proposed addition or alteration will either meet current setback requirements or will not encroach any further into the required setback than the existing structure; and
(b) If the proposed alteration or addition is located on the side of the existing dwelling, there is a minimum distance of fifteen (15) feet between the side of the existing structure and the nearest dwelling on the adjoining property.
(2) Detached dwellings with setbacks made nonconforming by the installation of roadways or other easements/property line adjustments created or enacted by a governmental entity are also exempt from the requirements of this Section, and shall not be required to address the findings in (H)(1) above.
(I) Nonconforming Buffers or Streetscapes
(1) In situations where existing buffers or streetscapes are made nonconforming through the actions of a governmental entity (i.e. road- widening projects) such actions shall not render an existing lot nonconforming.
(2) In certain situations, the Planning Director may require the governmental entity whose actions affected an existing buffer or streetscape to mitigate for the removal of existing vegetation on a case-by-case basis.