(a) Alterations to Structures Containing a Nonconforming Use. Any building or structure containing a nonconforming use may be altered, improved, reconstructed, enlarged, or expanded subject to the approval of the Board of Zoning Appeals when the Board of Zoning Appeals makes a finding of all of the following:
(1) That such expansion, enlargement, alteration, improvement, or reconstruction does not result in an increase of more than twenty five percent (25%) in the size, as measured in square feet of the structure or use at the time the structure or use became nonconforming.
A. The land owner or land user bears the burden of demonstrating by a preponderance of the evidence the size of the structure or use that was allowed at the time the structure or use became nonconforming.
B. The Board of Zoning Appeals may grant an increase over the twenty-five percent (25%) limit if the Board of Zoning Appeals finds by a preponderance of the evidence that exceeding the twenty-five percent (25%) limit will not have a detrimental effect on the surrounding neighborhood.
(2) That the proposed expansion, enlargement, alteration, improvement, or reconstruction will not create a nuisance to the surrounding neighborhood or the community at large.
(3) That the proposed expansion, enlargement, alteration, improvement, or reconstruction will not constitute a threat to public health and safety.
(b) Internal Alterations, Improvements, or Reconstruction, Wear and Tear, and Maintenance of a Nonconforming Use. The provisions of this Chapter of the Code have no application to internal or interior alterations, improvements, reconstruction, repair or maintenance on a nonconforming building or structure as long as the internal or interior alteration, improvement, reconstruction, repair or maintenance does not increase the exterior size of the building or structure.
(c) Displacing a Conforming Structure or Use. A nonconforming structure or use must not be physically enlarged or extended such that the nonconforming use displaces a conforming use.
(d) Discontinuance or Abandonment. In the event a dispute over the lapse of a nonconforming use arises, a presumption is hereby created that a lapse has occurred. The individual or entity claiming the nonconforming use then bears the burden of proving the use has been continuous by a preponderance of the evidence. Continuous use is defined as no interruption of use for more than two (2) consecutive calendar years.
(e) Substitution of Nonconforming Uses. The Board of Zoning Appeals may allow a nonconforming use to be legally replaced by another nonconforming use if the BZA determined all of the following by preponderance of the evidence:
(1) That the new use is similar in character to the previous nonconforming use by virtue of the fact that the proposed new use is equally appropriate or more appropriate compared to other uses in the same zoning district than the existing nonconforming use.
(2) That the proposed new use will not be any more intrusive to the neighborhood than the previous nonconforming use.
(f) Certificates of Nonconforming Use. There is a presumption that any nonconforming use is illegal. The Zoning Inspector, however, is hereby authorized to issue a certificate of nonconforming use subject to the following regulations:
(1) The burden is on the landowner or land user to establish that the preexisting use was legal at the time the use was established.
(2) The burden is on the land owner or land user to establish that the preexisting use has been "continuous" as defined by Section 1110.06(d).
(4) The decision of the Zoning Inspector may be appealed to the Board of Zoning Appeals on forms provided by the Community Development Department.
(g) Additional Regulations.
(1) The Zoning Inspector may require a land owner or land user to submit a site plan in conformity with the Zoning Code to demonstrate the extent of the requested nonconforming structure or use as a condition of issuing a nonconforming use certificate.
(2) A landowner may apply for a certificate of nonconforming use at any time.
(3) Forms of documentation to be considered as evidence a nonconforming use was allowed when the nonconforming use was established and the use was continuous includes, but is not limited to:
A. Building permits;
B. Income tax records;
C. Rent payment receipts;
D. Insurance policies for the property;
E. Published address or phone directories;
F. Signed expired leases;
G. Dated aerial photos.
(Ord. 2021-057. Passed 6-16-21; Ord. 2022-099. Passed 9-21-22.)