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14.05.01 Description. A nonconforming use is a land use that was lawfully established in accordance with zoning regulations in effect at the time of its establishment but that is no longer allowed by the use regulations of the zone in which it is now located.
14.05.02 Continuance of Use. The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it, may be continued although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
14.05.03 Change of Use. The Board of Adjustment is authorized to permit a change from one nonconforming use to another if the new nonconforming use is in the same or a more restrictive zoning classification as the previous nonconforming use, subject to the following criteria:
(A) The Board of Adjustment can permit the substitution of one nonconforming use for another nonconforming use only after holding a public hearing in accordance with the conditional-use procedure contained in § 12.07.
(B) In granting a substitution of nonconforming uses, the Board of Adjustment may attach conditions as it deems necessary and proper.
(C) If the nonconforming use substitution has not occurred within one year after the date of approval, the approval will lapse and be of no further effect.
(D) The change of a nonconforming use, as may be granted by the Board of Adjustment, applies to the property for which it is granted and not to the individual who applied, and therefore, cannot be transferred by the applicant to a different property.
14.05.04 Enlargements and Expansions.
(A) Except in accordance with subsection 14.05.04B , the Board of Adjustment cannot allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulations which makes it nonconforming was adopted.
(B) However, the Board of Adjustment may grant approval, effective to maintain nonconforming use status, for enlargements or extensions of the facilities of a nonconforming use that consists of presenting of a major public attraction(s) (e.g. sports events), which meets the following criteria:
(1) It has been presented at the same site over a period of years;
(2) It has such attributes and public acceptance that it has attained international prestige and has achieved the status of a public tradition;
(3) It contributes substantially to the economy of the community and state;
(4) With respect to the prestige and status of the attraction or event, the site is an essential element, and the enlargement or extension was or is designed to meet the increasing demands of participants and patrons.
(C) The Board of Adjustment can permit the enlargement or extension of a nonconforming use in accordance with this subsection, only after holding a public hearing in accordance with the conditional-use procedure contained in § 12.07.
(D) In approving enlargement or extension of a nonconforming use, the Board of Adjustment may attach conditions as it deems necessary and proper.
14.05.05 Nonconforming Use Status Deemed. Pursuant to KRS 100.253(3), any use that has existed illegally and does not conform to the provisions of the city's zoning regulations, has been in continuous existence for a period of 10 years, and has not been the subject of any adverse order or other adverse action by the administrative official during this period is deemed a nonconforming use. Thereafter, the use will be governed by the provisions of this article.
14.05.06 Loss of Nonconforming Status.
(1) Uses within Buildings. If a nonconforming use within a building is discontinued for 12 consecutive months or for 24 months during any four-year period, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited. (As used herein, the word "discontinued" means that one owner or responsible party for the use of the property cannot demonstrate that he or she had clear intent to continue using the property for the nonconforming purpose and that he or she had augmented that intent by making every reasonable effort to continue to have the property so used.) Intent may be demonstrated by providing substantive documentation or evidence that:
(a) The owner has made reasonable continuous effort to have the property rented or sold for the nonconforming purpose;
(b) The property has been vacant as a result of legal proceedings; or
(c) The owner, by reason of age or infirmity, was unable to manage or cope with the responsibility of a tenant.
(2) Use of Open Land. If a nonconforming use of open land is discontinued for six continuous months or more, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited. This section does not apply to periods of inactivity for nonconforming agriculture uses.
(B) Change to Conforming Use. If a nonconforming use is changed to a conforming use, no matter how short the period of time, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited.
(C) Intentional Damage or Destruction. When a structure containing a nonconforming use is intentionally destroyed or damaged by causes within the control of the property owner or tenant, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited.
(D) Accidental Damage or Destruction.
(1) When a structure containing a nonconforming use is accidentally destroyed or damaged by causes that are not within the control of the owner, to the extent of more than 50% of its fair market value, the use may not be restored except in conformity with the regulations of the zone in which it is located.
(2) When a structure containing a nonconforming use is accidentally destroyed or damaged by causes that are not within the control of the property owner or tenant, to the extent of 50 percent or less of its fair market value, the structure and use may be restored or repaired provided that no new nonconformities are created and that the existing degree of nonconformity is not increased. A building permit to reconstruct a destroyed or damaged structure must be obtained within 12 months of the date of occurrence of such damage, and once issued, construction must be diligently pursued.
(E) Reuse of Historic Commercial Structures. To encourage the reuse of historic commercial structures, the Board of Adjustment is authorized to approve continuance or re-establishment of the last legal use of historic commercial structures regardless of the period of discontinuance or vacancy.
In approving such continuance or re-establishment, the Board of Adjustment must follow the conditional-use procedures of § 12.07.
(Ord. O-37-06, passed 8-15-06)