After determining that a proposed use is a change or substitution of a nonconforming use, the Planning Commission shall determine if the proposed use shall be permitted and if any conditions shall be established. The owner of the building shall be responsible for providing information and evidence to the Planning Commission that addresses those considerations the Commission deems relevant. In making a determination, the Commission may give consideration to any or all of the following:
(a) Whether adequate proof of nonconforming status has been provided by the landowner. The burden of proof that a nonconforming use exists (as opposed to a violation of this zoning code) rests with the landowner. A preponderance of the evidence must show that the nonconformity was lawfully established prior to the adoption of the subject regulations.
(b) Whether the property has been maintained in safe and good repair. The extent and cost of any repairs or other improvements required to bring the property into conformance with property maintenance standards applicable to the district.
(c) Whether the use is lawful in all other respects.
(d) Whether the building has significant historic or architectural value worthy of preservation to the benefit of the area in which it is located and to the community at large.
(e) Whether the site does or will comply with district standards for landscaping, sidewalks, parking, and screening.
(f) The extent to which the building is specifically designed for the nonconforming use and the extent to which it is not adaptable to conforming or more-conforming uses. Whether any proposed new construction will prolong the removal of the nonconforming use and the potential for adaptive reuse of the building that can contribute to future conforming use of the building.
(g) Whether the nonconforming use is operated without buildings (such as an open air use) or buildings are only employed for accessory or incidental uses. Whether the use is maintained in connection with a conforming building.
(h) Whether the proposed use is more or less harmful or objectionable than the previous nonconforming use resulting from, but not limited to the impacts of: volume of trade or production; kind of goods sold or produced; daily hours or other period of use; the type or number of persons to occupy or to be attracted to the premises; volume, timing, or type of vehicular traffic attracted to the site; availability of off-street and on-street parking and loading facilities; outdoor display, storage or work activities; or, any other characteristic of the new use as compared with the previous use.
(i) The character of districts abutting or in proximity to the proposed use and the nature of permitted uses in those abutting or proximate districts, particularly in terms of sensitivity to the impacts of the nonconforming use. Whether the proposed use is located in or abutting a residential district, and whether the proposed use will either not impact or will protect the residential character or contribute to the livability of residential neighborhoods.
(j) The nature of the nonconformity and the extent to which it is detrimental to its surrounds (including but not limited to impacts on public health and safety, property values, character of traffic, environmental impacts) or the extent to which the nonconformity is benign or has potential to be made benign as a result of improvements to the use and site.
(k) Whether there is evidence that the proposed use will result in significantly lesser impacts than the existing or prior nonconforming use.
(l) Any mitigations to which the applicant will commit that will effectively eliminate or sufficiently resolve or moderate impacts upon other properties including but not limited to: locations and orientations of uses, loading docks, drives, windows and doors; buffers and screens such as landscaping, fences, walls, or mounds; aesthetic improvements such as improved exterior surfaces and landscaping; relocation of the use on the site; hours of operation; or, other operational characteristics.
(Ord. 131-2016. Passed 11-21-16.)