Except as otherwise provided in this article, nonconforming uses shall be regulated as follows:
A. Enlargement Or Alteration:
1. A nonconforming use shall not be enlarged, except as set forth in this section.
2. A structure that contains or is accessory to a nonconforming use shall not be constructed or altered in such a way as to enlarge the nonconforming use.
3. Ordinary repair, maintenance, and remodeling are allowed as long as the nonconforming use is not enlarged. For purposes of this provision, changes made to provide safe access to a building for persons with disabilities is not considered an enlargement.
B. Change Of Use:
1. A nonconforming use may be converted only to another use in the same use category and subgroup or to a conforming use, except as provided in subsection B2 of this section.
2. The Board of Adjustment may grant a special exception to allow a nonconforming use, which is located in a structure not designed for a use allowed in the zone, to be converted to a nonconforming use in a different use category or subgroup that is the same or lesser in intensity than the existing use, provided the following conditions are met:
a. The proposed use will be located in a structure that was designed for a use that is currently not allowed in the zone, for example a storefront commercial building located in a single- family residential zone.
b. The proposed use is of the same or lesser level of intensity and impact than the existing use. The Board of Adjustment will make a determination regarding the relative intensity of the proposed use by weighing evidence presented by the applicant with regard to such factors as anticipated traffic generation, parking demand, hours of operation, residential occupancy, noise, dust, and customer and/or resident activity. The Board of Adjustment may also consider qualitative factors such as whether a proposed use will serve an identified need in the surrounding neighborhood.
c. The proposed use is suitable for the subject structure and site.
d. The structure will not be structurally altered or enlarged in such a way as to enlarge the nonconforming use. Ordinary repair and maintenance and installation or relocation of walls, partitions, fixtures, wiring, and plumbing is allowed, as long as the use is not enlarged.
3. Once a nonconforming use is converted to a conforming use, it may not be converted back to a nonconforming use.
4. Once a nonconforming use is converted to a less intensive nonconforming use in accordance with subsection B2 of this section, it may not be converted back to the prior nonconforming use.
5. A use is deemed "converted" when an existing nonconforming use is terminated and a new use commences and continues for a period of seven (7) consecutive days.
C. Occupancy Of A Nonconforming Use: (Rep. by Ord. 18-4744, 4-2-2018)
D. Accessory Uses:
1. A nonconforming use is permitted to have the same amount and type of signage as would be allowed for such a use in the most restrictive zone in which the use is allowed.
2. No use, including parking and signage, that is accessory to a principal nonconforming use shall continue after the principal use has ceased or been terminated unless the accessory use thereafter conforms to all provisions of this title.
E. Damage Or Destruction:
1. Any structure for a nonconforming use which has been destroyed or damaged by fire, explosion, act of God or by a public enemy to the extent of less than seventy five percent (75%) of the assessed value of the structure at the time of damage or destruction, may be restored for the same nonconforming use as existed before such damage. However, the nonconforming use must not be enlarged to more than what existed before such damage occurred. Any such restoration must be completed within two (2) years of the date the structure was destroyed or damaged; otherwise, the property must revert to a conforming use.
2. A lot or portion of a lot upon which is located a structure for a nonconforming use, or other unpermitted use, that has been previously established and in existence for over twenty five (25) years that has been destroyed or damaged by fire, explosion, act of God or by a public enemy to the extent of seventy five percent (75%) or more of the assessed value of the structure at the time of damage or destruction, must revert to a conforming use, unless a special exception is granted by the Board of Adjustment according to the provisions of subsection E4 of this section. The provisions for a special exception as outlined in subsection E4 of this section shall not apply or be available to a nonconforming or illegal residential occupancy.
3. For purposes of this subsection, the extent of the damage will be determined by the building official based on credible evidence provided by the property owner.
4. The Board of Adjustment may grant a special exception for uses detailed in subsection E2 of this section provided the following conditions are met:
a. An application for the special exception to restore the use must be filed with the City within one year of the date the structure was destroyed or damaged; and
b. The restored structure for the use may be redesigned or located on the property in order to increase the compatibility with surrounding uses, but neither the structure nor use may be enlarged beyond what existed before such damage or destruction occurred; and
c. Prior to the damage or destruction, the intensity of the use and the activities, operations, buildings and other aspects of the use were generally compatible with the surrounding neighborhood; and
d. The proposal for the restored use will be equally or more compatible with the surrounding neighborhood as was the use prior to the damage or destruction. The Board of Adjustment may consider such factors as traffic generation, parking, hours of operation, noise, dust, aesthetics, screening, amount of customer traffic; number of employees, residents, or occupants of a building or business; and any other factors that relate to the compatibility of the nonconforming or previously established use with the surrounding neighborhood and uses; and
e. Once restored/rebuilt, the nonconforming or previously established unpermitted use will retain or be conferred nonconforming status. The Board of Adjustment may impose additional conditions such that the conference of nonconforming status is limited.
F. Discontinuance Of Nonconforming Use: Except as allowed in subsection E and G of this section, a nonconforming use that is discontinued for a period of one year must revert to a conforming use or, in qualifying situations, a special exception may be applied for according to the provisions of subsection B of this section.
G. Nonconforming Drinking Establishments And Alcohol Sales Oriented Retail Uses: In addition to the other provisions in this section, the following provisions apply to nonconforming drinking establishments and nonconforming alcohol sales oriented retail uses:
1. Any "drinking establishment", as defined in this title, that was legally established prior to the effective date hereof and that is nonconforming with regard to the separation requirement between said uses, as specified in this title, may continue unless one or both of the following situations occur. If one or both of these conditions occur, then nonconforming rights cease and the use must convert to a conforming use:
a. The liquor license lapses, is revoked or is discontinued, or the drinking establishment ceases operation, for a period of one year, except where:
(1) The drinking establishment is located on property with a Historic District Overlay (OHD) zone; and
(2) The drinking establishment is in a building that has remained vacant for the previous two (2) consecutive years.
b. There has been a change of use as defined in Section 14-4E-5B.
2. Any "alcohol sales oriented retail use", as defined in this title, that was legally established prior to the effective date hereof that is nonconforming with regard to the separation requirement between said uses, as specified in this title, may continue unless one or both of the following situations occur. If one or both of these conditions occur, then nonconforming rights cease and the use must convert to a conforming use:
a. The liquor license lapses, is revoked or is discontinued for a period of one year; or
b. There are changes to the use such that the use no longer meets the definition of "alcohol sales oriented retail use".
3. For purposes of this subsection, sidewalk cafes shall not be considered an expansion of a nonconforming use. (Ord. 09-4341, 6-2-2009)
4. Nonconforming drinking establishments may expand as follows:
a. To include a rooftop service area upon approval of a special exception pursuant to the criteria set forth in article C, "Accessory Uses And Buildings", of this chapter; and
b. Where a nonconforming drinking establishment meeting the standards of 14-4E-5G-1a expands into property with a Historic District Overlay (OHD) zone that has remained vacant for the previous two (2) consecutive years.
5. Nonconforming drinking establishments may connect to a sales-oriented retail use so long as the following criteria are satisfied. At the sole discretion of the Chief of the Police, repeated violations of Iowa Code Chapter 123 or City Code Section 4-5-5 shall be grounds for temporary or permanent closure of the door, thereby prohibiting access between the two uses.
a. The door connecting the two uses shall meet the same fire-resistive rating as the wall separating the two uses and be ADA-compliant;
b. A notice, in a form and location approved by the City, shall be posted at the door informing patrons that open containers of alcohol are prohibited in the sales-oriented retail use pursuant to Iowa City Code Section 4-5-5; and
c. The holder of a liquor control license or wine or beer permit must provide staff of sufficient number and capability to monitor all patrons to prevent such violations. (Ord. 05-4186, 12-15-2005; amd. Ord. 09-4341, 6-2-2009; Ord. 13-4542, 8-20-2013; Ord. 15-4641, 9-15-2015; Ord. 21- 4856, 5-18-2021; Ord. 22-4881, 6-6-2022)