a. Intent. Within the districts established by this ordinance or amendments that may later be adopted there exist:
1. Lots;
2. Structures;
3. Uses of land and structures;
which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendment. It is the intent of this ordinance to permit these non-conformities to continue until they are removed, but not to encourage their survival.
Non-conforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. It is the intent of this ordinance that non-conformities 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. A non-conforming use of a structure, a non-conforming use of land, or a non-conforming use of structure and land in combination shall not be extended or enlarged after passage of this ordinance by attachment to a building or premises of additional signs intended to be seen from off the premises.
To avoid undue hardship nothing in this ordinance 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 ordinance and upon which actual building construction has been carried on diligently. Actual construction is defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.
b. Non-Conforming Lots of Record. In any district in which single-family dwellings are permitted, 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 ordinance, subject only to the limitations set forth in Section 10-130, paragraph c, footnote 3. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership at the time 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, provided that yard dimensions and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located as set forth in this ordinance. Variance of yard requirements shall be obtained only through action of the Board of Zoning Appeals.
If two (2) or more lots or combination 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 established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this ordinance, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this ordinance.
c. Non-Conforming Uses of Land (Or Land with Minor Structures Only). Where at the time of passage of this ordinance lawful use of land exists which would not be permitted by the regulations imposed by this ordinance, and where such use involves no individual structure with a replacement cost exceeding two thousand five hundred dollars ($2,500.00), the use may be continued so long as it remains otherwise lawful, provided:
1. No such non-conforming 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 ordinance.
2. No such non-conforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this ordinance.
3. If any such non-conforming use of land ceases for any reason for a period of more than six (6) consecutive months or for eighteen (18) months during any three-year period, (except when government action prohibit access to the land) the land shall not thereafter be used except in conformity with the regulations of the district in which it is located.
4. No additional structure not conforming to the requirements of this ordinance shall be erected in connection with such non-conforming use of land.
d. Non-Conforming Structures. Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restrictions on use, area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure as set forth in the district regulations, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
1. No such non-conforming structure may be enlarged, remodeled, or altered in a way which increases its non-conformity, but any structure or portion thereof may be altered to decrease its non-conformity.
2. Should such nonconforming structure be destroyed by any means to an extent of more than fifty percent (50%) of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.
3. Should such structure be moved for any distance whatever, it shall thereafter conform to the regulations for the district which it is located after it is moved.
4. Should such non-conforming structure be remodeled to the extent of more than fifty percent (50%) of its replacement cost at the time of remodeling, it shall not be remodeled except in conformity with the provisions of this ordinance. The cost of remodeling shall be deemed to be cumulative and each successive remodeling shall be added to the cost of prior remodeling undertaken subsequent to the adoption of this ordinance.
e. Non-Conforming Uses of Structures and Premises in Combination. If lawful use involving individual structures with a replacement cost of two thousand five hundred dollars ($2,500.00) or more, or of structure and premises in combination, exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
1. No existing structure devoted to a use not permitted by this ordinance 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 non-conforming use may be extended throughout any parts of a building which was manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building.
3. Any structure, or structure and land in combination, in or on which a non-conforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district, and the non- conforming use may not thereafter be resumed.
4. When a non-conforming use of a structure, or structure and premises in combination, is discontinued or abandoned for six (6) consecutive months or for eighteen (18) months during any three-year period (except when government action prohibits access to the premises), the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located.
5. Where non-conforming use status applies to a structure and premises in combination, removal, or destruction of the structure shall eliminate the non-conforming status of the land. Destruction for the purpose of this subsection is defined as damage to an extent of more than fifty percent (50%) of the replacement cost at the time of destruction.
6. If a non-conforming structure or portion of a structure containing a non-conforming use becomes physically unsafe due to lack of repairs and maintenance, and is declared by the Building Commissioner to be unsafe or unlawful by reason of physical condition in accordance with the provisions of I.C., 1971, § 36-7-9-1, et seq., and is either remodeled to an extent of more than fifty percent (50%) of its replacement cost or is required to be destroyed, it shall not be remodeled, restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.
Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.
f. Uses Under Special Exception Provisions Not Non-Conforming Uses. Any use which is permitted as a special exception or use variance in a district under the terms of this ordinance shall not be deemed a non- conforming use in such district, but shall without further action be considered a conforming use.
(Ord. No. 2007-33, 12-27-07)