Within the districts established by this Code, or by subsequent amendments thereto, there exist buildings, structures and uses which were lawful before this Code was passed or amended, but which would be prohibited or restricted under the terms of this Code or future amendments thereto.
1. Purpose. The purpose of this section is to provide for the regulation of nonconforming buildings, structures and uses and to specify those circumstances and conditions under which such nonconformities shall be permitted to continue. The intent of the regulation is not to force all nonconforming situations to be immediately brought into conformance. Instead the intent is to guide future uses and development in a direction consistent with city policy, and over time to bring the development into compliance with the city’s regulations and Comprehensive Plan.
2. Authority for Continuance of Nonconformities and Regulation Thereof. Any nonconforming building, structure, or use which existed lawfully at the time of adoption of this Code and which remains nonconforming by the terms thereof, and any such lawful building, structure or use which shall become nonconforming upon the adoption of this Code, or any subsequent amendment thereto, may be continued subject to the regulations following in this section.
3. Nonconformity.
A. Nonconforming Use of Land. Where at the time of adoption of this Code, or subsequent amendments thereto, lawful use of land exists which would not be permitted by the regulations imposed by this Code, and where such use does not involve a building or structure, or in connection with which any building or structure, thereon is incidental or accessory to the principal use of the land, such use may be continued, provided:
(1) No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land.
(2) No such nonconforming use shall be moved in whole or in part to any adjoining property nor to any other portion of the lot or tract other than that occupied by such use at the time of adoption of this Code, or of a subsequent amendment thereto which rendered the use nonconforming.
(3) No additional structure not conforming to the terms of this Code shall be erected or placed on the lot and no existing nonconforming structure shall be enlarged or expanded.
(4) If no expansion or enlargement is made, the nonconforming use may be changed to another nonconforming use of the same classification or to a less nonconforming use. Whenever a nonconforming use has been changed to a conforming use or to a less nonconforming use, such use shall not be thereafter changed to a more nonconforming use.
(5) Where the nonconforming use status applies to a structure or building and the removal or destruction of such structure or building, or change of such structure or building to a conforming use shall eliminate the nonconforming status of the land, thereafter the land shall be used only for a conforming use.
B. Nonconforming Structures and Buildings Related to Bulk. Where at the time of adoption of this Code, or of subsequent amendments thereto, lawful use of a structure or building exists or may exist which could not be erected under the regulations imposed by this Code by reason of restrictions on area, lot coverage, height, yards, location on the lot, or other requirements concerning the structure or building, such structure or building may be continued, provided no such nonconforming structure or building shall be altered in any way which would increase its degree of nonconformity but may be altered if such alteration does not increase its degree of nonconformity.
C. Nonconforming Structures and Buildings Related to Use. Where at the time of adoption of this Code, or of subsequent amendments thereto, lawful use of a structure or building exists which would not be permitted by the regulations in this Code, such use may be continued, provided:
(1) Enlargement or expansion of a nonconforming structure may be allowed under the following conditions:
a. Nonconforming single family structures located in the commercial and industrial districts as described in Section 165.16 may be allowed to expand. Also permitted is the establishment of additional accessory structures. All yard requirements of the district in which the nonconforming structure is located shall be adhered to with the exception that vertical expansions may be allowed provided the exterior walls of the addition extend no further than the exterior walls of the ground floor of the structure.
b. Nonconforming multi-family structures may be allowed to expand provided that the number of dwelling units are not increased. Also permitted is the establishment of additional accessory structures or the expansion of existing accessory structures. All yard requirements of the district in which the nonconforming structure is located shall be adhered to with the exception that vertical expansions may be allowed provided the exterior walls of the addition extend no further than the exterior walls of the ground floor of the structure.
c. Nonconforming commercial and industrial uses may expand under those conditions set forth in Section 165.84 “Conditional Expansions.”
(2) Any nonconforming use may be extended throughout any existing parts of a building which were manifestly arranged or designed 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 the building.
(3) If no expansion or enlargement is made, the nonconforming use may be changed to another nonconforming use of the same classification or to a less nonconforming use. Whenever a nonconforming use has been changed to a conforming use or to a less nonconforming use, such use shall not be thereafter changed to a more nonconforming use.
(4) Where nonconforming use status applies to a structure or building and land on the same lot or tract, then the removal or destruction of such structure or building, or change of such structure or building to a conforming use eliminates the nonconforming use and the nonconforming status of the land, thereafter the land shall be used only for a conforming use.
(5) Any nonconforming structure or building allowed under this chapter may not be connected in any way to any other nonconforming or conforming structure or building. Any non-forming or conforming structure or building allowed under this chapter must have separate utility connections. All utility connections must originate from the street and may not be connected to any existing utilities serving any nonconforming or conforming structure or building.
D. Nonconforming Signs. Nonconforming signs shall be regulated by the provisions contained in Chapter 166 of this Code.
4. Repairs and Maintenance. Ordinary repairs and maintenance may be carried out on land, structures or buildings nonconforming as to use or bulk, provided that no alterations shall be made which would add to the size, area, or degree of nonconformity.
5. Restoration of a Nonconforming Structure or Building.
A. Structure or Building Damaged or Destroyed. A nonconforming building or structure which is destroyed or damaged by fire or other casualty or act of God to the extent that the cost of restoration to the condition in which it was before the occurrence shall exceed sixty-five percent (65%) of the fair market value of the building before damage, based upon insurance value, shall not be restored except in conformity with all of the regulations of the district in which it is located.
(1) If a nonconforming building or structure is damaged less than sixty-five percent (65%), it may be repaired, restored, or reconstructed and used as before the time of damage provided that such repair, restoration or reconstruction is started within twelve (12) months of such damage and diligently prosecuted to completion.
B. Correcting an Unsafe Condition. Nothing in this Code shall be deemed to prevent the strengthening or restoring to a safe condition any structure, building, or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.
6. Nonconforming Accessory Uses, Structures and Buildings. Nonconforming accessory uses, structures and buildings shall be subject to the provisions of this section. In addition, a nonconforming use of land, structure, or building which is accessory to a principal nonconforming use shall be discontinued if such principal use or structure is discontinued, unless such accessory use of land or structure shall therefore conform to all regulations of the district in which it is located.
7. Discontinuance of a Nonconforming Use. If the nonconforming use of a building, structure, or premise is discontinued or vacated for a continuous period of 12 months, it shall not be renewed, and any subsequent use of the building, structure, or premises shall conform to the use regulations of the district in which such building, structure, or premises is located. However, where it can be established that a delay in reoccupying a property has been caused by governmental and/or court action, or other extenuating circumstances, which are clearly beyond control of the property owner, the time period to retain nonconforming status may, if approved by the Board of Adjustment, be extended to 24 months. Application for extension must be received before the expiration of the 12-month discontinuance or vacation.
8. Termination of Certain Nonconforming Uses and Structures. Certain uses involving a high degree of incompatibility and a relatively low amount of investment shall be terminated, or altered, as herein prescribed, following adoption of this Code.
A. Sight Distances. Fences, walls and foliage which impair sight distances at an intersection and thereby constitute a hazard to pedestrian or vehicular traffic shall be altered to comply with the provisions of this Section 165.21(8) herein, with one calendar year from the date of official notice from the Zoning Administrator.
B. Nonconforming Uses in C-ORS, C and I Districts. All uses in C-ORS, C and I Districts not now in compliance with the provisions of this Code setting for specifications for fencing or screening shall be altered so as to comply within two years from the date of official notice from the Zoning Administrator.
C. Nonconforming Open Storage Activities. Such uses as automobile wrecking and salvage, material storage and similar uses wherein no buildings or structures are used on connection with said use, or when the only buildings or structures or other physical improvements are accessory or incidental to such use, shall be terminated or made conforming within five calendar years from the date of official notice from the Zoning Administrator.
D. Adult Entertainment. Any Adult Book Store, Adult Motion Picture Theater, Adult Mini Motion Picture Theater, Adult Massage Parlor, Adult Theater, Adult Artist-Body Painting Studio, Adult Modeling Studio, Adult Sexual Encounter Center, Adult Cabaret, or any other Adult Entertainment Establishment which at the time of the adoption of this Code becomes nonconforming because it does not meet the minimum separation requirements between it and any other such establishment, or between it and any school, church, or residential zoning district; or because it is located in a zoning district wherein such establishment is not a permitted use, shall terminate all uses defined herein no later than three years after the date of the adoption of the Adult Entertainment Establishment Regulations Ordinance adding this section of Adult Entertainment to the 1995 Hiawatha Zoning Ordinance. However, if, in the opinion of the owner of the business involving such use, the termination creates an undue hardship, the owner may appeal to the Board of Adjustment for extension of time for the termination. It shall be the responsibility of the owner to show just cause for a time extension based upon evidence submitted by the owner which demonstrates by the greater weight of evidence that three years was not an adequate length of time to amortize the owner’s investment in such establishment. The Board shall determine whether such a time extension shall be granted, and, if so, how long such extension shall be, based upon the evidence presented. However, no establishment shall be granted more than a one-time extension and no such extension shall be for longer than the minimum time determined necessary by the Board for the owner to amortize the investment which existed on the date of the Ordinance adding this section to the laws of Hiawatha was adopted. Any investments in said nonconforming establishment(s) subsequent to the adoption of the Code shall not be included for such amortization value purposes. Such nonconforming establishments shall not increase, enlarge, expand, extend or alter such land area, building or structure involved in such establishment except by change the use to another use which is permitted in that zoning district by the terms of the Unified Development Code.
E. Outside Vehicular Storage. When a combination of more than two vehicles, recreational vehicles, boats, campers, trailers or similar vehicles and equipment shall be parked or stored in the rear yard in the Agriculture and Single Family Residential Districts and on lots being used for a single-family or two-family dwelling the property shall be effectively screened on each side adjoining a street or property situated in a residence district by a wall, fence, or densely planted compact hedge not less than five and one-half feet in height. The fencing or screening shall be established within 60 days from the date of official notice from the Zoning Administrator. The Zoning Administrator may grant an extension until such time as the ground is frost free.