A. Scope of provisions: The provisions of this chapter shall apply to all nonconforming uses, lands, and structures. A nonconforming land use or structure is one which existed lawfully, whether by variance or otherwise, on the date this zoning ordinance or any amendment thereto became effective, and which fails to conform to one or more of the applicable regulations of the zoning ordinance or such amendment thereto. Such nonconformities may be incompatible with and detrimental to permitted land uses and structures and may inhibit present and fixture development of nearby properties; and they confer upon their owners and users a position of unfair advantage.
B. Statement of intent: Existing nonconformities are not to be extended expanded or changed; however, their continued, lawful existence, within the requirements of this ordinance, is expressly acknowledged.
C. Nonconforming uses of lots: When, on the date of adoption or amendment of this ordinance, an existing nonconforming use of a parcel or lot may be continued so long as it remains otherwise lawful but shall be subject to the following provisions:
1. Enlargement: No such nonconforming use of parcel or lot shall be enlarged, expanded, or extended to occupy a greater area of land than was occupied on the date of adoption or amendment of this ordinance and no additional accessory use, building, or structure shall be established thereon.
2. Relocation: No such nonconforming use of a parcel or lot shall be moved in whole or in part to any other portion of such parcel or lot not so occupied on the date of adoption of this ordinance or to a parcel or lot not in conformance with this ordinance.
3. Discontinuance: If cessation of such nonconforming use exceeds more than 180 consecutive days, except where government action causes such cessation, the subsequent use of such parcel or lot shall conform to the regulation and provisions set by this ordinance for the district in which such parcel or lot is located. The Board of Zoning Appeals may grant an extension of up to another 180 days as a special exception for the continuance of a nonconforming use. For the purposes of the ordinance, cessation of the nonconforming use shall mean no further active use of the property in the principle nonconforming manner. Continued simple ownership or use of the property for some clearly secondary purpose, such as storage, shall be considered a continuance of the nonconforming use.
4. Change: An existing nonconforming use of land shall not cause further departures from the zoning ordinance. Although an existing nonconforming use may continue, except as hereinafter limited, it may not be changed to another use, except to a use permitted in the district in which it is situated and provided it complies with all other requirements of this ordinance.
D. Nonconforming buildings and structures: Where, on the date of adoption or amendment of this ordinance, a lawful building or structure exists that could not be built under the regulations of this ordinance by reasons of restrictions upon lot area, lot width, lot coverage, height, open spaces, off-street parking, loading spaces and setbacks, or other characteristics, such building or structure may be continued, so long as it remains otherwise lawful, subject to the following provisions:
1. Enlargement: Such building or structure may be enlarged, expanded, extended, or altered only if the nonconformity is removed, except as otherwise provided herein. A building or structure may be improved to the extent that the proposed improvement does not increase the nonconformity of the particular setback or create a new and different nonconformity such as a different yard setback, parking, or so forth.
2. Destruction: Should any such building or 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 ordinance.
3. Relocation: Should any such building or structure be moved for any reason for any distance, it shall thereafter conform to the regulations of the district in which it is located after it is moved.
E. Nonconforming uses of buildings and structures: Where, on the date of adoption or amendment of this ordinance, a lawful use of a building or structure exists that is no longer permissible under the regulations of this ordinance, such use may be continued so long as it remains otherwise lawful subject to the following provisions:
1. Enlargement: No existing building or structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, constructed, reconstructed, moved, or structurally extended or altered except in changing the use of such building or structure to a use permitted in the district in which such building or structure is located.
2. Change in use not permitted: An existing nonconforming land use or structure shall not cause further departures from the zoning ordinance. Although an existing nonconforming use may continue, except as hereinafter limited, it may not be changed to another use, except a use permitted in the district in which it is situated and provided it complies with the requirements of that district.
3. Discontinuance: When a nonconforming use of a building or structure is discontinued or abandoned for more than 180 consecutive days (except where government action prevents access to the premises) the building or structure shall not thereafter be used except in conformance with the regulations of the district in which it is located.
F. Repairs and maintenance: Nothing in this ordinance shall be deemed to prohibit the restoration of any structure and its use where such structure has been destroyed by any means out of the control of the owner to an extent less than 50% of its replacement value (excluding the value of the land, the cost of preparation of land, and the value of any foundation adaptable to a conforming use) at the time of destruction, provided the restoration of such structure and its use in no way increases any former nonconformity, and provided further that restoration of such structure is begun within six months of such destruction and diligently prosecuted to completion within one year following such destruction. Whenever such structure has been destroyed by any means out of the control of the owner to an extent of more than 50% of its replacement value (excluding the value of the land, the cost of land and the value of any foundation adaptable to a conforming use) at the time of destruction, as determined by the Building Inspector by any means within the control of the owner to any extent whatsoever, the structure shall not be restored except in full conformity with all regulations of the district in which such structure is situated. When a structure is determined to be substandard by the proper administrative official of the city under any applicable ordinance of the city, and the cost of placing the structure in condition to satisfy the standards under such ordinance shall exceed 50% of the reconstruction cost of the entire structure, such nonconforming structure shall not be restored for the purpose of continuing a nonconforming use.
G. Change in ownership or tenancy: There may be a change of tenancy, ownership, or management of an existing nonconforming use, building, or structure, provided there is no change in the nature or character, extent, or intensity of such nonconforming use, building, or structure.
H. Completion of pending construction and building permits: To avoid undue hardships, nothing in this ordinance shall be deemed to require a change in 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 ordinance and upon which actual building construction has been carried on diligently. Nothing herein contained shall require any change in the plans or designated use of a building for which a building permit had been heretofore issued, or the plans or final subdivision plats which have been approved by the Board at the time of the passage of this ordinance.
I. Substandard nonconforming lots-of-record: In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this ordinance, a single-family dwelling and customary accessory buildings or structures may be erected on any single lot of record at the effective date of adoption or amendment of this ordinance. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership as of the date of adoption of this ordinance. 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. 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. 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 ordinance and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, no portion of said parcel or lot shall be used or sold which does not meet lot width and area requirements established by this ordinance, nor shall any division of the parcel or lot be made which leaves remaining any parcel or lot with width or area below the requirements stated in the ordinance.
J. Existence of a nonconforming use or structure:
A nonconformity shall not be deemed to have existed on the date this zoning ordinance, or any amendment thereto, became effective; unless:
1. It was in being on a continuous basis and to its fullest extent on such date.
2. If such nonconformity is a use, such use had not been abandoned as herein defined.
3. If such use existed lawfully under the previous zoning ordinance.
In cases of doubt, and on specific questions raised, whether a nonconforming use exists shall be a question of fact and shall be decided by the Board of Zoning Appeals after notice, a public hearing, and receipt of a report and recommendation of the Planning Department.
K. Nonconforming uses not validated: A use in violation of a provision of the ordinance which this repeals shall not be validated as a nonconforming use by this ordinance and it shall conform to the provisions of this ordinance.
L. Non-Conformity as Basis for Variance: The existence of any present nonconformity anywhere in the city or its jurisdictional area, shall not itself be considered grounds for the issuance of a variance for other property.
M. Eventual conformance with environmental performance standards: Within five years of the date of the adoption of this ordinance or the date of adoption of any applicable amendments to this ordinance, any use which is or becomes a nonconforming use, shall be brought into conformance with the environmental performance standards established in § 2.10, environmental performance standard regulations, of this chapter.
(1980 Code, Ch. 156, § 2.11) (Ord. 1995-7, passed 6-5-1995)