A. Purposes:
1. A nonconforming use is a use of a structure or land which was lawfully established and maintained prior to the adoption of this code, but which, under this code, does not conform with the use regulations for the district in which it is located. This section is intended to limit the number and extent of nonconforming uses by prohibiting their enlargement and their reestablishment after abandonment and by prohibiting the alteration of the structures they occupy and their restoration after destruction, within a reasonable period of time.
2. A nonconforming structure is a structure which was lawfully erected prior to the adoption of this Title, but which, under this Title, does not conform with the standards of coverage, yard space, height of structures or distance between structures prescribed in the regulations for the district in which the structure is located. While permitting the use and maintenance of nonconforming structures, this Section is intended to limit the number and extent of nonconforming structures by prohibiting their being moved, altered or enlarged so as to increase the discrepancy between existing conditions and the standards prescribed in this Code and by prohibiting their restoration after destruction, within a reasonable period of time.
3. Priorities for enforcement under this Section shall be as follows, in descending order of importance:
a. Uses listed under subsection G1 of this Section.
b. Nonconforming uses.
B. Continuation And Maintenance:
1. A use lawfully occupying a structure or a site on the effective date of this Code or of amendments thereto which does not conform with the use regulations for the district in which the use is located shall be deemed to be a nonconforming use and may be continued, except as otherwise provided in this Section.
2. A structure lawfully occupying a site on the effective date of this Code or of amendments thereto, which does not conform with the standards of coverage, front yard, side yards, rear yard or distances between structures prescribed in the regulations for the district in which the structure is located, shall be deemed to be a nonconforming structure and may be used and maintained except as otherwise provided in this Section.
3. A sign or outdoor advertising display of any character lawfully occupying a site on the effective date of this Code or amendments thereto, which does not conform with the standards for subject matter, location, size, lighting, or movement prescribed for the district in which it is located, shall be deemed to be a nonconforming sign or outdoor advertising structure, and may be displayed and maintained except as otherwise provided in this Section.
4. Routine maintenance and repairs may be performed on a structure or site, the use of which is nonconforming, on a nonconforming structure, and on a nonconforming sign or outdoor advertising structure.
C. Alterations And Additions To Nonconforming Uses And Signs: Except as provided in Section 11-16-9D of this Title, no structure, the use of which is nonconforming, and no nonconforming sign shall be moved, altered, or enlarged unless required by law or unless the moving, alteration or enlargement will result in the elimination of the nonconforming use. No structure partially occupied by a nonconforming use shall be moved, altered or enlarged in such a way as to permit the enlargement of the space occupied by the nonconforming use. Exceptions to these regulations are permitted only for the minor expansion of a nonconforming use or structure under conditional use procedures of this Code.
D. Alterations And Additions To Nonconforming Structures: No nonconforming structure shall be altered or reconstructed so as to increase the amount of floor space or the discrepancy between existing conditions and the standards of coverage, front yards, side yards, rear yards, heights of structures or distances between structures prescribed for the district in which the structure is located, except as may be permitted through the granting of a conditional use permit under the provisions of Chapter 19 of this Title. The modest expansion of a nonconforming use which may be allowed within any zoning district under Chapter 19 of this Title shall not exceed fifty percent (50%) of the existing floor area of the structure.
E. Abandonment Of Nonconforming Use: Whenever a nonconforming use has been abandoned, discontinued or changed to a conforming use for a continuous period of six (6) months, the nonconforming use shall not be reestablished, and the use of the structure or site thereafter shall be in conformity with the regulations for the district in which it is located.
F. Restoration Of Damaged Structure:
1. Whenever a nonconforming use, or a nonconforming structure shall be destroyed by fire or other calamity, or by an act of God or by the public enemy to the extent of less than seventy five percent (75%), the structure may be restored and the nonconforming use may be resumed, provided that restoration is started within one year and diligently pursued to completion. The extent of damage to any structure shall be determined by the Building Official, and shall be based upon the ratio of the estimated cost of restoring the use or structure to its condition prior to such damage to the estimated cost of duplicating the entire structure as it existed prior thereto.
2. Whenever a nonconforming use or a nonconforming structure shall be destroyed by fire or other calamity, or by an act of God or by the public enemy to the extent of seventy five percent (75%) or more, or shall be voluntarily razed or shall be required by law to be razed, the structure shall not be restored except in full conformity with the regulations for the district in which it is located, and the nonconforming use shall not be resumed.
G. Elimination Of Nonconforming Uses And Structures:
1. The following nonconforming uses and structures shall be discontinued and completely removed or altered and converted to a conforming status within five (5) years after the effective date of this Code:
a. A nonconforming use which does not occupy a structure.
b. A nonconforming use occupying a structure having an assessed valuation of less than one hundred dollars ($100.00).
c. A nonconforming outdoor advertising structure.
d. A nonconforming sign within a C District.
e. Abandoned or dilapidated signs in accordance with the provisions of Chapter 16 of this Title.
2. A nonconforming home occupation shall be discontinued within one year.
3. Uses permitted only within an RA, R, or RM District which are located in a C or MI District, and uses permitted only in a C or M District which are located in an RA, R or RM District shall be completely removed or altered and converted to a conforming status upon abandonment for six (6) months or more.
4. The period of amortization shall begin on the date the use first became nonconforming on or after the effective date of this Code. The time schedule is deemed to provide for the amortization of the affected use. When a nonconforming use is removed, every future use shall be in conformity with the provisions of this Code. Repairs necessary to maintain a nonconforming use and other maintenance, not exceeding an assessed valuation of two thousand five hundred dollars ($2,500.00), shall not be construed as lengthening the useful life of the nonconforming use, except in the case of repairs and maintenance to uses listed under subsection G1 of this Section.
5. Fences, walls and hedges which do not conform to the provisions of this Code governing the erection of fences, walls and hedges in relation to street intersections shall, within one month of receipt of written notification by the Planning Director, be removed or made to conform.
H. Time When Use, Structure Or Sign Becomes Nonconforming: Whenever a use or structure becomes nonconforming because of a change of zoning district boundaries or a change of regulations for the district in which the site is located, the period of time prescribed in this Section for the elimination of the use shall be computed from the effective date of the change of district or regulations, and the Building Official shall carry out the provisions of subsection I of this Section, in respect thereto.
I. Records And Notification Of Nonconforming Status Of A Use, Structure Or Sign: Within one hundred eighty (180) days after the effective date of this Title, and amendments thereto, the Planning Director shall compile a list of all structures or uses which shall have become nonconforming by the adoption of this Title under the provisions of subsection H of this Section, together with a description of their locations and the names and addresses of all persons whose names appear on the latest adopted tax roll of Kings County as owning such nonconforming structures, uses or signs, which list shall be recorded in the office of the Kings County Recorder with copies placed on file with each title company operating within Kings County.
Within one year after the effective date of this Title, the Planning Director shall notify, in writing, the owners of all nonconforming structures, uses signs and fences, walls and hedges of the nonconforming status of their property and the date when such structure or use shall be removed or made conforming by said owners, if such removal or conformance is required by the provisions of this Title. An excerpt of this Title will be attached to said notice which excerpt shall include all of the provisions of this Section.
J. Effect Of Eminent Domain: If any land, right-of-way easement be taken by eminent domain, or be granted to the condemnor under actual threat of suit in eminent domain, the following provisions and exceptions shall apply:
1. If the area of a lot is reduced below the minimum requirement thereby, such lot shall be deemed to be a legal substandard lot under the provisions of Section 11-17-2 of this Chapter, and any existing building or structure thereon shall be deemed to be nonconforming.
2. If a required yard is reduced or eliminated thereby, any affected building or structure shall be deemed nonconforming; provided, however that such building or structure may be structurally altered or enlarged as long as such alterations or enlargements comply with all other requirements of the Zoning District.
3. If any required parking space on a lot is reduced or eliminated thereby, the provisions of Chapter 14 of this Title shall not be construed to require the replacement of the required parking space.
K. Change Of Nonconforming Use: Except as otherwise set forth in this Section, the nonconforming use of a structure or site may be changed to another nonconforming use provided the change of use is approved by the Commission in accordance with the following procedure:
1. An application for a change of use shall be made to the Commission on a form prescribed by the Commission, which form shall include the following data:
a. The name and address of the applicant;
b. A statement that the applicant is the owner of the property or is the authorized agent of the owner;
c. The address or description of the property; and
d. A statement of the precise nature of the existing or preexisting nonconforming use and the proposed nonconforming use and any other data pertinent to the findings prerequisite to the granting of the application as set forth in subsection K4 of this Section.
The application shall be filed with the Planning Director. Notice shall be given to the applicant of the time when the application will be considered by the Commission, and notice may be given of the time to any other interested party.
2. The Commission shall hold a public hearing on an application for a change of use. Notice of the hearing shall be given not less than ten (10) days, nor more than thirty (30) days, prior to the date of the hearing in the manner set forth in Chapter 19 of this Title.
3. The Planning Director shall make an investigation of the application and shall prepare a written report thereon, which report shall be submitted to the Commission. The Commission shall consider the report of the Planning Director before action on the application.
4. The Commission may grant an application for a change of use if, on the basis of the application and the evidence submitted, the Commission makes the following findings:
a. That the proposed use is classified in a more restricted category than the existing or preexisting use by the district regulations of this Chapter. The classification of a nonconforming use shall be determined on the basis of the district in which it is first permitted; provided, however, a conditional use shall be deemed to be in a less restrictive category than a permitted use in the same district;
b. That the proposed use will not more adversely affect the character of the district in which it is proposed to be located than the existing or preexisting use;
c. That the proposed use will not create more vehicular or rail traffic than the volumes created by the existing or preexisting use;
d. That the proposed use will not create more odor, dust, dirt, smoke, noise, vibration, illumination, glare, unsightliness, or any other objectionable influence than the amount created by the existing or preexisting use; and
e. That the proposed use will not be detrimental to the public health, safety or welfare or materially injurious to properties or improvements in the vicinity.
5. The Commission may grant an application for a change of use for a limited time period or subject to such conditions as the commission may prescribe. The commission may deny an application for a change of use.
6. An action of the commission granting an application for a change of use shall become null and void six (6) months following the date of the action unless, prior to the expiration of six (6) months, a building permit is issued by the building official and construction is commenced and diligently pursued toward completion on the site which was the subject of the application. The action of the commission may be made effective for an additional six (6) months if, within six (6) months of the original application, an application to continue the action in effect is made to the commission. The commission may grant or deny an application to continue its action in effect.
7. An action of the commission granting an application for a change of use subject to conditions shall be revoked by the commission if the conditions are not complied with.
8. Following the date of denial of an application for a change of use or the revocation of an action of the commission granting an application, no application for the same, or substantially the same, structure on the same, or substantially the same, site shall be filed within six (6) months of the denial of the application or the revocation of the action of the commission. (Ord. 527, 8-4-1997)