(A) Intent.
(1) Within the districts established by this chapter or amendments that may later be adopted there exist lots, structures, and uses of land and structures which were lawful before this chapter was passed or amended, but which would be prohibited, regulated or restricted under the terms of this chapter or future amendment.
(2) It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this chapter to be incompatible with permitted uses in the districts involved. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.
(3) A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land shall not be extended or enlarged after passage of this chapter by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited generally in the district involved.
(4) It is further recognized that certain nonconforming uses and structures do not significantly depress the value of nearby properties and are not contrary to the public health, safety and welfare and that such use or structure was lawful at the time of its inception and that no useful purpose would be served by the strict applications of requirements for nonconformities under this chapter and, therefore, 2 classes of nonconforming use and structure are designated, being class A and class B.
(5) To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been diligently carried on. Actual construction is defined to include the placing of construction materials in permanent position and fastened in a permanent manner; except that where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved and provided further that all work shall be done pursuant to a valid permit.
(B) Class A nonconforming uses or structures. Those nonconforming uses or structures which have been designated by the Planning Commission, after hearing, as class A, providing findings that the following conditions exist with respect to the use or structure.
(1) The use or structure was lawful at its inception.
(2) Continuance of the use or structure does not significantly depress property values of nearby properties.
(3) Continuance of the use or structure would not be contrary to the public health, safety or welfare or the spirit of this chapter.
(4) An improvement to an existing nonconforming condition will result.
(5) No useful purpose would be served by strict application of the provisions of this chapter with which the use or structure does not conform.
(C) Class A conditions. The decision to grant a class A designation shall be made in writing, setting forth the findings and reasons on which it is based. Conditions may be attached, including time limits where deemed necessary to assure the use or structure does not become contrary to the public health, safety or welfare or the spirit and purpose of this chapter and further to assure that at least the following standards are met.
(1) Screening and landscaping should be provided in keeping with community standards to provide compatibility with adjacent uses.
(2) Effects which may have a negative impact such as lighting, noise or visual impact should be minimized.
(3) Where such use is in close proximity to homes, parking should not be permitted to utilize curb side parking to an extent greater than the immediate property frontage of the nonconforming use.
(4) New signage should meet zoning district requirements. Existing nonconforming signs may be required to be eliminated or reduced in size and number as the Commission may, in its judgment, determine.
(5) The exterior building materials utilized in any alteration to the building shall be harmonious with materials on abutting properties whenever practical.
(6) Enlargement of a building may be allowed provided such enlargement does not create a more nonconforming yard setback condition which would impact on conforming properties in the immediate vicinity.
(7) The Commission may require such other safeguards and improvements as it may deem necessary to protect conforming uses in the surrounding area.
No class A nonconforming use or structure shall be resumed if it has been discontinued for 6 consecutive months or 18 months in any 3-year period. No class A nonconforming use or structure shall be used, altered or enlarged in violation of any condition imposed in its designation.
(D) Revocation of class A designation. Any class A designation shall be revoked, following the same procedure required for designation, upon a finding that as a result of any change of conditions or circumstances the use or structure no longer qualifies for class A designation.
(E) Class B nonconforming uses or structures. All nonconforming uses or structures, not designated class A, shall be class B nonconforming uses or structures. Class B nonconforming uses and structures shall comply with all the provisions of this chapter relative to nonconforming uses and structures. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been diligently carried on. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner; except that where demolition or removal of an existing building has been substantially begun preparatory to rebuilding such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved.
(F) Reactivation of discontinued nonconforming use or structure. A nonconforming use of land or structure which is discontinued or ceases to exist as specified in subsections (H)(3) and (J)(5) of this section may be reinstated as a class A nonconforming use or structure by the Planning Commission after hearing and after finding that the following conditions exist or will be met with respect to the use or structure.
(1) The proposed use will be the same type of use as the previous use which occupied the property or a new use which is no more intensive than the previous use. Example: In a residential zone a business use allowed in a B-1 Local Business District exists, such use may be replaced by another B-1 use or a higher use such as an OS-1 or RM use but shall not be replaced by a more intense use such as those allowed in a B-2, B-3, CBD or Industrial District.
(2) That conditions specified in subsections (B)(2) through (4) of this section will be complied with.
(3) A determination shall be made by the Planning Commission that the use or structure will be a blighting influence on the neighborhood if not allowed to be occupied.
(G) Nonconforming lots. In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this chapter, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this chapter. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district; provided that yard dimensions and other requirements not involving area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance to yard requirements may be obtained through the Board of Appeals.
(H) Non conforming uses of land. Where, at the effective date of adoption or amendment of this chapter, lawful use of land exists that is made no longer permissible under the terms of this chapter as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions.
(1) No such nonconforming use 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 chapter.
(2) No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this chapter.
(3) If such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specified by this chapter for the district in which such land is located.
(I) Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions.
(1) No such structure may be enlarged or altered in a way which increases its nonconformity. Such structure may be enlarged or altered in a way which does not increase its nonconformity.
(2) Should such structure be destroyed by any means to an extent of more than 50% of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this chapter.
(3) Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.
(4) Should such structure be a pre-existing porch or deck, and provided that the structure's footprint remains the same or is made smaller, it may be replaced due to age or structural issues.
(J) Nonconforming uses of structures and land. If a lawful use of a structure, or of structure and land in combination, exists at the effective date of adoption or amendment of this chapter, that would not be allowed in the district under the terms of this chapter, the lawful use may be continued as long as it remains otherwise lawful, subject to the following provisions.
(1) No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.
(2) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use, and which existed at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such building.
(3) If no structural alterations are made, any nonconforming use of a structure, or structure and land in combination, may be changed to another nonconforming use of the same or a more restricted classification, provided the use is equally appropriate or more appropriate to the district than the existing nonconforming use. Where a nonconforming use of a structure, land, or structure and land in combination is changed to a more conforming use, it shall not thereafter be changed to a less conforming use.
(4) 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 district in which such structure is located, and the nonconforming use may not thereafter be resumed.
(5) When a nonconforming use of a structure, or structure and premises in combination, is discontinued or ceases to exist for 6 consecutive months or for 18 months during any 3 year period, the structure, or structure and land in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. Structures occupied by seasonal uses shall be excepted from this provision.
(6) Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.
(K) Repairs and maintenance. On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding 50% of the assessed value of the building, provided that the cubic content of the building as it existed at the time of passage or amendment of this chapter shall not be increased. Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by an official charged with protecting the public safety, upon order of such official.
(1) Uses under exception provisions not nonconforming uses. Any use for which a general exception or conditional use approval is required as provided in this chapter shall not be deemed a nonconforming use, but shall without further action be deemed a conforming use in such district.
(M) Change of tenancy or ownership. There may be a change of tenancy, ownership or management of any existing nonconforming uses of land, structures or structures and land in combination.
(N) Applications for temporary use permits. Businesses located in OS-1, B-l, B-2, B-3 and CBD Districts and churches, wherever located, within the corporate limits of the city, may make applications for temporary use permits where they desire to promote business sales which would normally be prohibited in their zoning district. Such application may only be made where the sales promotion bears a reasonable relationship to the business normally permitted in that district. The Planning Commission shall determine whether the lawful business bears a reasonable relationship to the prohibited business for which a special use permit is sought. Where the Planning Commission decides that such a reasonable relationship exists, it may grant a temporary use permit, provided:
(1) The principal use has previously been granted site plan approval;
(2) The principal use is in compliance with all current city zoning regulations;
(3) The temporary use does not create a public safety problem as determined by the Police Department;
(4) The temporary use does not exceed 30 days;
(5) Commitment is made to restore any lawn areas where temporary use may have taken place;
(6) Adequate parking would remain available for the building for the principal use;
(7) A zoning officer finds the application would not impair the health, safety, and welfare of the general public.
In conjunction with a temporary use permit, 1 sign not to exceed 20 square feet will be allowed and may be placed on the front or side yard setback, provided that it does not interfere with public safety as determined by the Police Department. Upon approval of the Planning Commission and the applicant meeting all of the conditions of approval, the Building Official is authorized to execute a temporary use permit.
(1993 Code, § 82-453) (Ord. passed 10-12-1992; Ord. passed 1-11-1999(1); Ord. passed 4-9-2007(1))