(A) Definition. A NONCONFORMING USE is an active and actual use of land or structures, or both, legally established prior to the effective date of this code or subsequent applicable amendment thereto that has continued the same use to the present and that would not be permitted under the current terms of this code.
(B) Continuation. A lawful use made nonconforming by the adoption of this code of ordinances of the city may continue only for so long as such use continues unabated subject to the requirements of this section. This section shall not prohibit normal maintenance or minor repair of any nonconforming use.
(C) Non-residential uses. Nonconforming non-residential uses shall be regulated in accordance with the following:
(1) Maintenance. The normal maintenance of a structure or land containing or related to a nonconforming use is permitted, including necessary repairs and incidental alterations which do not exacerbate the adverse impacts of the nonconforming use in relation to the purpose of this code. In no instance shall said repairs exceed over the life of the structure, 50% of the present assessed market value of said structure or property prior to said repairs.
(2) Expansion. In all Nonresidential/ Resource Districts, expansion of up to 20% of the total existing floor area or 20% of any outdoor operations/storage area may be permitted with an approved site plan review in any continuous five-year period, provided all other provisions of this code are met. Expansion of a non-residential use in a Residential District shall be limited to no more than 10% and only with the approval of a special use permit.
(3) Change of use. Any nonconforming use may be changed to another nonconforming use upon. the approval of the Zoning Administrator, provided that:
(a) The proposed use is equally or more appropriate and less intensive than the existing use, but may not thereafter be returned to the previous nonconforming use or changed to any more intensive use;
(b) The change will not increase congestion in the streets;
(c) The change will not endanger the health, safety, morals, or general welfare of the district in which it is located;
(d) The amount of land devoted to the nonconforming use shall not be increased;
(e) The Zoning Administrator may require whatever conditions and safeguards deemed necessary in granting the change.
(f) Any part of a building, structure or land occupied by a nonconforming use which is changed to or replaced by a use conforming to the provisions of this code shall not thereafter be used or occupied by a nonconforming use.
(4) Abandonment. A nonconforming use that has been discontinued for a continuous period of 12 months, for whatever reason, shall be considered to be abandoned and shall not be re-established. Any further use on the property shall be in conformance with all applicable provisions of this code. Evidence of intent to abandon the nonconforming use is not required.
(5) Destruction. A nonconforming use damaged to less than 50% of its fair market value, based on the valuation of the township assessor or a market appraisal performed by a certified appraiser, may be restored provided that: all portions of the structure being restored are not and were not on or over a property line; all construction is in compliance with current construction codes, such as the Fire and Building Codes; a building permit is obtained within six months from the date of the damage; and the certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit. If damage exceeds 50% or more of the fair market value, restoration or improvement shall not be permitted unless the restoration results in a use conforming to all applicable provisions of this code.
(D) Residential uses. Nonconforming residential uses shall be regulated in accordance with the following provisions. As used in this paragraph, nonconforming residential uses are those uses which are nonconforming due to the number of dwelling units they contain or their location in a zoning district that does not permit residential uses.
(1) Maintenance. The normal maintenance of a structure or land containing or related to a nonconforming use is permitted, including necessary repairs and incidental alterations which do not exacerbate the adverse impacts of the nonconforming use in relation to the purpose of this code.
(2) Expansion. In all zoning districts, nonconforming single-family homes may expand by the greater of either 20% of the existing gross floor area or 20% of the value of the existing structure, based on the valuation of the township assessor or a market appraisal performed by a certified appraiser, in any continuous five-year period provided that: an addition of up to 150 square feet shall be permitted regardless of existing size or value of the structure; no additional dwelling units are created; and all other provisions of this code are met. Expansion of residential structures other than single family homes shall be strictly limited to common areas only and limited to 300 square feet in any continuous five-year period.
(3) Abandonment. A nonconforming residential use, other than a single-family home, that has not been occupied for a continuous period of 12 months, for whatever reason, shall be considered to be abandoned and shall not be reoccupied. Any further use on the property shall be in conformance with all applicable provisions of this code. Evidence of intent to abandon the nonconforming use is not required.
(a) A nonconforming single-family home that has not been occupied for a continuous period 12 months or longer shall not be considered to be abandoned and may be reoccupied at any time provided the structure has not been changed, legally or illegally, to a non-residential use or multiple-unit residential use.
(b) Removal of a nonconforming mobile home or manufactured home not in a mobile home park from its foundation or pad for a continuous period of 12 months shall constitute abandonment of the use and placement of a new unit must comply with the provisions of this code. Evidence of intent to abandon the nonconforming mobile home or manufactured home use is not required.
(c) Failure to correct code violations that have been adjudicated and so ordered in the manner and time frame so ordered shall constitute intent to abandon a nonconforming residential use.
(4) Destruction. Nonconforming residential uses that are damaged may be rebuilt in accordance with the following:
(a) A structure damaged to less than 50% of its fair market value, based on the valuation of the township assessor or a market appraisal performed by a certified appraiser, may be restored provided that: all portions of the structure being restored are not and were not on or over a property line; the number of dwelling units does not increase; all construction is in compliance with current construction codes, such as the Fire and Building Codes; a building permit is obtained within six months from the date of the damage; and the certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit.
(b) A structure damaged to 50% or greater of its fair market value, based on the valuation of the township assessor or a market appraisal performed by a certified appraiser, may be rebuilt to its existing number of units provided that: the units were legally created at the time they were built; all portions of the structure being restored are not and were not on or over a property line; the number of dwelling units does not increase; the structure and property are in compliance with all other regulations of this code, other than the number of units; all construction is in compliance with current construction codes, such as the Fire and Building Codes; a building permit is obtained within six months from the date of the damage; and the certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit.
(5) Density acceptance. Owners who are unable to prove to the satisfaction of the Zoning Administrator that the density (number of units) on their property was legally established may appeal to the Zoning Board of Appeals to be granted rebuilding rights under this section. In deciding such appeals, the Zoning Board of Appeals shall hold a public hearing and consider the following: any and all documentation available regarding the development history of the property, both permitted and unpermitted; the number, type and disposition of code violations and criminal infractions on the property; the length of time the current owner has had the property and whether the density or violations preceded that ownership; the degree of nonconformity of density; the number and extent of any site nonconformities; and the potential impact granting indefinite rebuilding rights would have on surrounding properties and the neighborhood in general. Notice of the hearing shall be provided in the same manner as required for a variance before the Zoning Board of Appeals.
(6) Rebuilding. All structures damaged to 50% or greater of their fair market value that are reconstructed, shall comply with all provisions of this code, other than density, including, but not limited to: setbacks, building height, parking, landscaping and open space. Although the property shall retain the right to re-establish the same number of dwelling units, changes may be required to the size and type of units and the configuration of the structure(s) in order to meet other code requirements. If the property does not conform to all requirements of this code, other than density, approval of a special use permit shall be required in order to vary from the requirements. In addition to complying with the special use permit criteria, the applicant shall demonstrate that the proposed redevelopment of the property complies with the code requirements to the maximum extent practical given that it is the intent of this code that the property is permitted to retain its density and remain viable.
(Ord. O-05-04, passed 4-11-05)