(a) Administration of Non-Conformities.
(1) The following sets forth the rights of a property owner to continue, enlarge, repair, alter, replace, or discontinue a non-conforming use or structure.
(2) Table 1105-10 summarizes the decisions relative to nonconformities and the role of each of the administrative, quasi-judicial, quasi-legislative, and legislative reviewing parties.
(b) Applicability. Non-conforming uses are declared by this Code to be incompatible with permitted uses in the zones and districts involved. 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 Code by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses, of a nature which would not be permitted generally in the zone or district involved.
(c) Effect of Actual Construction. To avoid undue hardship, nothing in this Code 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 Code and upon which actual building construction has been carried on diligently. Actual construction is hereby 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 commenced, such substantial excavation, demolition or removal shall be deemed to be actual construction, provided that work is carried on diligently after such excavation, demolition or removal. For the purposes of this Section 9.05 substantial excavation, demolition or removal shall mean the completion of at least seventy-five percent (75%) of the scope of applicable work
(d) Single-Family Dwellings. In any zone or 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 Code notwithstanding limitations imposed by other provisions of this Code. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. 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 or zone, provided that yard dimensions and requirements other than those applying to area or width, or both, of the lot shall conform to the regulations for the district or zone in which such lot is located, except that the minimum side yards may be reduced ten percent (10%) of the width of the lot, provided that no side yard shall be less than the least of the applicable district or zone regulation and three feet (3'). Variance of yard requirements shall be obtained only through action of the BZA.
(e) Contiguous Lot. If two (2) or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this Code, 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 purpose of this Code, and no portion of such parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this Code, nor shall any division of any parcel be made which creates a lot width or area below the requirements stated in this Code.
(f) Alteration of Non-Conforming Structure. No such non-conforming structure may be enlarged or altered in a manner which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity. If lawful use of a structure, or of structure and premises in combination, exists at the effective date of adoption or amendment of this Code that would not be allowed in the district under the terms of this Code, 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 Code in the zone or 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 zone or district in which it is located.
(2) Any non-conforming use may be extended throughout any of the parts of a building which were manifestly arranged or designated for such use at the time of adoption or amendment of this Code, 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 applicable zone or district, and the non-conforming use may not thereafter be resumed.
(4) Where a non-conforming use has been discontinued, meaning that the structure containing the use has remained vacant, unoccupied, unused or has ceased the daily activities or operations which had occurred, for a period of twenty-four (24) or more continuous months, the non-conforming use shall be permanently terminated.
(5) Any non-conforming structure damaged to an extent of more than seventy-five percent (75%) of its then fair market value, exclusive of foundations, shall not be restored or reconstructed, used or occupied as a non-conforming use. If such damage amounts to seventy-five percent (75%) or less of the fair market value, the non- conforming structure may be restored, provided a building permit is obtained and that such restoration shall begin within one year from the time of damage. The BZA may approve the reconstruction of a non-conforming structure damaged to a greater extent than permitted herein upon review of a site and design plan submitted in accordance with the requirements for site and design plan submittal.
(g) Continuation of Non-Conformity.
(1) If lawful use of a structure, or of structure and premises in combination, exists at the effective date of adoption or amendment of this Code that would not be allowed in the district under the terms of this Code, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
i. No existing structure devoted to a use not permitted by this Code in the zone or 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 zone or district in which it is located.
ii. Any non-conforming use may be extended throughout any of the parts of a building which were manifestly arranged or designated for such use at the time of adoption or amendment of this Code, but no such use shall be extended to occupy any land outside such building.
iii. 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 applicable zone or district, and the non-conforming use may not thereafter be resumed.
iv. Where a non-conforming use has been discontinued, meaning that the structure containing the use has remained vacant, unoccupied, unused or has ceased the daily activities or operations which had occurred, for a period of ninety (90) or more continuous months days, the non-conforming use shall be permanently terminated.
Table 1105-10
Non-Conformities Review Process
Determinations Of: | Zoning Administrator | Board of Building and Zoning Appeals (BZA) |
Enlargement | ||
Application Submitted To: | X | |
Decision By: | X | |
Appeal To: | ||
Repair or Alteration | ||
Application Submitted To: | X | |
Decision By: | X | |
Appeal To: | Quasi-Judicial | |
Replacement | ||
Application Submitted To: | X | |
Decision By: | X | |
Appeal To: | Quasi-Judicial | |
Discontinuance | ||
Application Submitted To: | X | |
Decision By: | X | |
Appeal To: | Quasi-Judicial | |
v. Any non-conforming structure damaged to an extent of more than seventy-five percent (75%) of its then fair market value, exclusive of foundations, shall not be restored or reconstructed, used or occupied as a non-conforming use. If such damage amounts to seventy-five percent (75%) or less of the fair market value, the non- conforming structure may be restored, provided a building permit is obtained and that such
(h) Repairs and Alterations.
(1) Repairs, alterations and maintenance work as required to keep said non-conforming structure in sound condition and repair may be made to a non-conforming structure; provided that the total repairs and alterations shall not exceed fifty percent (50%) of the structure's then fair market value.
(2) Nothing in this Code 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.
(i) Effect of Priori Apriori Regulations. Any lawfully existing use or structure existing on the effective date of this Code, which use or structure does not conform with one (1) or more of the provisions of this Code, shall be deemed a non- conforming use or structure under the provisions of this Code. Provided that such non-conforming use or structure was established in conformance with the zoning provisions in effect prior to adoption of this Code, and provided that such use or structure was established under authorization of and in conformance with a permit or other authorization issued by the Village, then such use or structure shall be a lawful non-conforming use or structure and shall be permitted to continue under the provisions of this Code.
(Ord. 32-2020. Passed 1-19-21.)