(A) Intent.
(1) Non-conformities are lots, uses, structures, buildings, or site plans for developed sites which do not conform to 1 or more provisions or requirements of this section, but which were lawfully established prior to the date of adoption or amendment of this section. The non-conformities are considered to be incompatible with the current or intended use of land, buildings or structures, in the district in which they are located. This section is intended to meet the objectives stated below by establishing regulations that govern the completion, restoration, reconstruction, extension, and/or substitution of non-conformities, and specify the circumstances and conditions under which nonconformities shall be permitted to continue.
(2) The objectives of this section are to eliminate, or bring into compliance, lots, buildings, structures and uses which legally existed at the date of adoption of this chapter, but do not meet the current standards of this section. This section also has special provisions to permit certain nonconforming situations considered to be less harmful to continue under certain conditions, but to discourage their expansion, enlargement, or extension. The standards of this section are intended to accomplish the following:
(a) Terminate and remove any use, building, accessory structure or any combination thereof that was established after the effective date of this section and in violation of this section. The uses, buildings or accessory structures are classified as illegal nonconformities and shall not receive any of the rights, privileges or protection conferred by this section for legal nonconforming situations.
(b) Eliminate nonconforming uses which are more intense than the uses permitted within the zoning district and are considered to be incompatible with permitted uses, or encourage their redevelopment into a more conforming use.
(c) Permit legal nonconforming buildings, structures or uses to remain until they are discontinued or removed, but to discourage their survival.
(d) Encourage a gradual upgrading to a more conforming status of site plans which were developed in compliance with the standards at the time of their construction, but which do not meet the site standards of this chapter and its amendments.
(5) Encourage the combination of contiguous nonconforming lots of record to create lots which conform to current standards, to avoid the public health, safety and welfare problems associated with the over-crowding of land.
(B) Applicability. To avoid undue hardship, nothing in this section shall be deemed to require a change in 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 section, upon which actual building construction has been diligently carried on and there is a valid building permit. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such work shall be deemed to be actual construction, provided that such work shall be diligently carried on until completion of the building involved.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ABANDONMENT. The relinquishment of land or cessation of the use of the land by the owner or leasee without any intention of transferring rights to the land to another owner or of resuming use of the land or building (such as, a discontinuance and an indication of an intent to abandon).
DISCONTINUANCE. A vacation of a lot, building or structure; or a ceasing of the activities related to the nonconforming situation.
EFFECTIVE DATE. Whenever this section refers to “effective date” of this section, it shall be deemed to include the effective date of any amendments if the amendments created or increased the nonconforming situation.
LEGAL NONCONFORMITIES. Certain existing lots, buildings, structures, site plans and uses of land were lawful prior to the effective date of this section, but have become nonconforming under the terms of this section and its amendments.
ILLEGAL NONCONFORMITIES. Any lot, use, building, structure or any combination thereof that was established in violation of this section at the effective date of this section.
NONCONFORMING BUILDING. A building or portion thereof lawfully existing at the effective date of this section, which does not meet the minimum size, setbacks, height or other building provisions of the ordinance in the district in which it is located. (Example: a house which does not meet the required front yard setback).
NONCONFORMING LOT. A lot of record lawfully existing at the effective date of this section that does not meet the minimum area or lot dimensional requirements for the district in which it is located. (Example: a 8,000 square foot lot of record in a district which requires a minimum 10,000 square foot lot).
NONCONFORMING SIGN. A sign lawfully existing on the effective date of this section, or amendments thereto, which does not meet all the standards or regulations of this section. (Example: a business with a 20-foot tall pole sign when the current Zoning Ordinance allows only a 10-foot tall ground sign).
NONCONFORMING SITE PLAN. A development on a site which met ordinance requirements for site design elements at the time the site was developed, such as the amount of parking, parking lot pavement or landscaping; but which does not meet the current site design standards of the village. (Example: a retail store with 10 parking spaces when the current Zoning Ordinance requires 15 parking spaces).
NONCONFORMING ACCESSORY STRUCTURE. An accessory structure or portion thereof lawfully existing at the effective date of this chapter, or amendments thereto, that does not conform to the provisions of the ordinance in the district in which it is located. (Example: an accessory deck which does not meet current setback standards).
NONCONFORMING USE. A use which lawfully occupied a building or land at the effective date of this section, or amendments thereto, and that does not conform to the use regulations of the district in which it is located.
(D) Nonconforming uses of land, buildings and accessory structures. Where, at the effective date of adoption or amendment of this section, a lawful use on open land, a lot(s), building(s) or accessory structure(s) exists that is made nonconforming by this section or its amendments, such use may be continued, as it remains otherwise lawful, subject to the following provisions:
(1) Expansions. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use, and which existed at the effective date of this section, but no such use shall be enlarged, expanded or extended to occupy a greater area of land or greater floor area than was occupied at the effective date of this section.
(2) Accessory uses and structures. No new accessory use, building or structure shall be established.
(3) Relocation. The nonconforming use shall not be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of this section.
(4) Abandonment or discontinuance. If such nonconforming use on open land is abandoned or discontinued for any reason for a period of 6 months, or a nonconforming use within a building or structure is abandoned or discontinued for more than 1 year, except as noted below, such use shall not be re-established. Subsequent use of such land shall conform to the regulations specified by this section for the district in which such land is located.
(5) Special standards for single-family homes in a nonresidential district.
(a) A single-family residential dwelling in a zoning district (other than the DDA district) which does not permit such a use may be expanded to occupy the floor area necessary for living purposes subject to approval by the Zoning Board of Appeals.
(b) A single-family dwelling and its accessory structures, in a zoning district which does not permit such use may be continued, replaced, repaired or remodeled if damaged by flood, fire, or vandalism, if approved by the Zoning Board of Appeals. The approval requires a finding that the resulting building footprint and floor area will be the same size or smaller than that of the building before such change. Replacement of such nonconforming single-family building shall commence no sooner than receiving a valid building permit and no later than 6 months of the date of damage. Work shall be diligently pursued toward completion. The applicant may be required to provide the village with evidence, visual or otherwise demonstrate to the satisfaction of the Zoning Administrator that work is being diligently pursued. Failure to complete replacement or diligently work toward completion shall result in the loss of legal, nonconforming status unless good cause for the delay is accepted at a hearing before the Zoning Board of Appeals.
(6) Change in use. Except for single-family dwellings as permitted above, a nonconforming use shall not be enlarged, extended, constructed, reconstructed or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located. If no structural alterations are made, any nonconforming use of a building, or building and land in combination, may be changed to another nonconforming use if the Zoning Board of Appeals, either by general rule or by making findings in the specific case, finds the proposed use is more appropriate to the district than the existing nonconforming use. In permitting the change, the Zoning Board of Appeals may require conditions and safeguards in accord with the purpose and intent of this section. Where a nonconforming use of a structure, land, or structure and land in combination is hereafter changed to a more conforming use, it shall not thereafter be changed to a less conforming use.
(7) Nonconforming use in combination with nonconforming building. Where non-conforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the non-conforming use status of the land.
(8) Removal. Where nonconformity use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming use status of the land.
(9) Exceptions. Any use for which a special exception, variance or special land use permit has been granted as provided in this section shall not be deemed a non-conformity.
(E) Nonconforming lots of record. The following regulations shall apply to any non-conforming lot of record or non-conforming lot described in a deed or land contract executed and delivered prior to the effective date of this section or amendment thereto:
(1) Use of nonconforming lots. Any non-conforming lot shall be used only for a use permitted in the district in which it is located. In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this section, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of this section. 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, provided that the lot is in conformance with applicable yard setback, minimum floor area, maximum lot coverage, maximum height requirements and all other requirements for the district in which it is located (see subsection (2)). Yard requirement variances may be obtained through approval of the Zoning Board of Appeals.
(2) Variance to area and bulk requirements. If the use of a non-conforming lot requires a variation of the minimum floor area and bulk (minimum setback and maximum height) requirements, then such use shall be permitted only if a variance is granted by the Zoning Board of Appeals (see subsection (3).
(3) Evidence. To develop a nonconforming lot(s) under the provisions of subsections (1) and (2), the applicant is required to submit evidence that ownership of the lot was not under contiguous single ownership with other lots which could have been combined into a conforming or more conforming lot.
(4) Nonconforming contiguous lots under the same ownership. The following regulations shall apply to nonconforming contiguous lots under the same ownership.
(a) 1. If 2 or more lots or combination of lots with contiguous frontage are or have been under single ownership of record at the time of the adoption or amendment of this section, and if all or part of the individual lots or combination of lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an individual, undivided parcel for the purposes of this section. No portion of division of such a parcel which does not meet the lot width or area requirements established by this section shall be used or occupied. Any altering of lot lines or combination of lots shall result in lots which conform to the requirements of this section.
2. Notwithstanding subsection (E)(4)(a), nonconforming contiguous lots or portions of the lots under the same ownership in the assessor's map of the village, the plat of the village, the plat of the Village of Paradise, Brownson's First Addition to the Village of Paradise, Brownson's Second and Third Additions to the village, and Wynkoop's First Addition to the Village of Paradise, may be used or occupied if they meet 60% of the lot width or area requirements established by this section
(b) No portion of the parcel shall be used, occupied, or sold in a manner which diminishes compliance with lot width and area requirements established by this section, nor shall any division of a parcel be made which creates a lot with width or area less than the requirements stated in this section.
(c) Any combination, in whole or in part, of non-conforming lots of record shall result in lots which conform to the requirements of this section to the maximum extent feasible.
(d) Once any combination which creates a conforming lot occurs, the resulting lot shall not retain nonconforming lot of record status and will hereafter be required to comply with the lot requirements of this section.
(F) Nonconforming buildings and structures. Where a lawful building or structure exists at the effective date of adoption or amendment of this section that could not be built under the terms of this section by reason of restrictions on area, lot coverage, height, yards, landscape buffer, off-street parking, loading space, minimum setback, or other characteristics of the structure or its location on the lot, such building or structure may be continued provided it remains otherwise lawful, subject to the following provisions:
(1) Permitted expansions.
(a) An expansion (footprint or floor area) of a nonconforming building or structure shall be permitted on a conforming side when all of the following conditions exist:
1. Only 1 side of the building or structure does not conform to width setback requirements.
2. The side which is nonconforming provides at least 90% of the required setback.
3. The expansion will conform to all setback and height requirements.
(b) Except as noted above, no building or structure may be enlarged unless a variance is granted by the Zoning Board of Appeals.
(2) Replacement of a nonconforming single-family dwelling. A nonconforming building used as a single-family residence, and its accessory structures, may be continued, replaced, repaired or remodeled if damaged by flood, fire, vandalism, accident or other natural disaster if approved by the Zoning Board of Appeals. The approval requires a finding that the resulting building footprint will be the same size or smaller than that of the building before such change or that the building will become more conforming. Replacement of such a nonconforming single-family building shall commence within 1 year of the date of damage and work shall be diligently pursued toward completion. Failure to complete replacement or diligently work toward completion shall result in the loss of legal, nonconforming status unless good cause for the delay is accepted at a hearing before the Zoning Board of Appeals.
(3) Damaged nonconforming buildings and structures. Except as noted in subsection (2), a nonconforming building or structure, which is damaged by flood, fire or vandalism to an extent of more than 50% of its market value prior to damage (as described in subsection (8)), exclusive of the foundation, shall be reconstructed only in conformity with the provisions of this section, unless the lot is a nonconforming lot of record, in which case the provisions of division (E) also apply. The nonconforming building may be replaced provided replacement is commenced within 1 year of the date of damage and is being diligently pursued toward completion. Failure to complete replacement shall result in the loss of legal, nonconforming status unless good cause for the delay is accepted at a hearing before the Zoning Board of Appeals.
(4) Relocation of a nonconforming building or structure. Should any nonconforming building or structure be relocated or moved for any reason for any distance, it shall thereafter conform to the regulations for the district in which it is located after it is relocated or moved.
(5) Safety related repairs, improvements and modernization. Repairs, improvements, or modernization of non-conforming buildings or structures deemed necessary by the County Building Department to keep a non-conforming building structurally safe and sound shall be permitted provided such repairs or improvements do not exceed 50% of the market value (as described in subsection (8)) of the building or structure during any period of 12 consecutive months. This cost/value calculation shall not include any costs associated with modernization of electrical, plumbing, heating or cooling systems to meet Building Code requirements. Any repairs, improvements, and modernization shall not result in an enlargement of the non-conforming structure. However, if a non-conforming structure or a structure containing a non-conforming use becomes physically unsafe or unlawful due to lack of maintenance and repairs and is declared as such by the County Building Department, it shall not thereafter be restored, repaired, or rebuilt except in full conformity with the regulations in the district in which it is located.
(6) Non-safety improvements and modernization. Improvements or modernization of non-conforming structures which are not deemed necessary by the County Building Department to keep a non-conforming building structurally safe and sound shall be permitted provided such repairs or improvements do not exceed 25% of the market value of the structure (as described in subsection (8)) during any period of 12 consecutive months. Any such improvements or modernization shall not result in an enlargement of the non-conforming structure.
(7) Elimination of nonconformity. In the event a non-conforming situation is removed, the corresponding section of the building or structure shall thereafter conform.
(8) Market value. For the purpose of this section, market value shall be determined by an acceptable independent appraisal provided by the applicant. The Village Assessor shall review the appraisal. The value of the repairs or improvements shall be based on a written estimate from a licensed contractor provided by the applicant. This estimate shall be reviewed by the village or the County Building Department.
(G) Nonconforming sites.
(1) The intent of this section is to permit improvements and minor modifications to a conforming use and building which does not meet all of the various site improvement related regulations of this Zoning Code. The purpose is to allow gradual compliance with the site related requirements, for the entire site, for sites which predate the various Zoning Code standards for landscaping, paving and other non-safety site related items.
(2) Such improvements or expansions may be permitted by the Planning Commission during special land use or site plan review without a complete upgrade of all site elements under the following conditions:
(a) The applicant is proposing reasonable site improvements on the overall site in relation to the scale and construction cost of the building improvements or expansion.
(b) The applicant has addressed safety related site issues on the overall site.
(c) The improvements or minor expansion will not increase noncompliance with site requirements.
(d) A site plan shall be submitted in accordance with § 152.228.
(H) Change of tenancy or ownership. In the event there is a change in tenancy, ownership, or management, an existing non-conforming use or structure shall be allowed to continue provided there is no change in the nature or character of such non-conformity.
(I) Unlawful non-conformities. No non-conformity shall be permitted to continue in existence if it was unlawful at the time it was established.
(J) Recording of non-conforming uses. The Zoning Administrator shall be responsible for maintaining records of nonconforming uses and structures as accurate as is feasible, and for determining legal nonconforming uses and structures in existence on the effective date of this section. Failure on the part of a property owner to provide the Zoning Administrator with necessary information to determine legal nonconforming status may result in denial of requested or required permits.
(K) Purchase or condemnation. In order to accomplish the elimination of nonconforming uses and structures which constitute a nuisance or are detrimental to the public health, safety and welfare, the village, pursuant to Section 3a, Public Act 207 of 1947 (M.C.L.A. § 125.583a), as amended, may acquire by purchase, condemnation or otherwise, private property for the purpose of removal of nonconforming uses.
(L) Summary of nonconforming regulations.
Type of Nonconforming Situation | Regulatory Response |
Type of Nonconforming Situation | Regulatory Response |
Illegal nonconforming use, building or accessory structure | Must cease |
A nonconforming use in a building is discontinued, or a nonconforming building or accessory structure is abandoned for over 1 year | Must cease and all nonconforming rights are terminated (D(4) |
A nonconforming use on open land is discontinued for over 6 months | Must cease and all nonconforming rights are terminated (D)(4) |
Change in ownership of a nonconforming lot, use or building | No affect on nonconformity or rights (H)) |
Establishment of a new nonconforming use | Not permitted, except an existing nonconforming use may be changed to a more conforming use, as determined by the ZBA (D)(6) |
Expansion of a nonconforming use within a conforming building | Permitted (D)(1) |
Expansion of a nonconforming use outside a building or an expansion of the building which contains a nonconforming use | Not permitted unless approved by the ZBA (D)(1) |
Request to construct or expand a principal building on a nonconforming lot when an adjacent nonconforming lot is under the same ownership | Lots must be combined unless variance granted by ZBA (E)(4) |
Request to construct or expand a principal building on a nonconforming lot when no adjacent lot is under the same ownership | Requires a variance by the ZBA. This hardship cannot be self created by selling a lot (E)(4) |
Request to expand or increase height of a nonconforming building | Expansion which conforms permitted in some cases, a variance from the ZBA may be required (F)(1) |
Safety-related maintenance and structural repairs to a nonconforming building or structure (modernization of electrical, plumbing, heating and cooling systems to meet Building Code requirements is permitted regardless of cost) | Permitted up to 50% of the value of the building (F)(5) |
Non-safety related renovation or modernization to a building containing a nonconforming use, or to a nonconforming building or accessory structure | Permitted up to 25% of the value of the building (F)(6) |
Request to renovate or expand a conforming use or building when the site plan does not meet all of the current site design standards | Reviewed by Planning Commission (G) |
Rebuilding of a single-family home in a non-residential zoning district damaged by catastrophe | Permitted to rebuild to same or smaller footprint on previous foundation (D)(5) |
Rebuilding of a nonconforming single-family home in a single family residential district | Requires approval by the ZBA (F)(2) |
Reestablishment of a nonconforming use or rebuilding of a nonconforming building if damaged by catastrophe | Permitted only if damage is less than 50% of the pre-catastrophe fair market value (F)(3) |
(M) (1) No marihuana facility operating or purporting to operate prior to December 15, 2017, shall be deemed to have been a legally existing use nor shall the operation of such marihuana facility be deemed a legal nonconforming use under this section.
(2) A property owner shall not have vested rights or nonconforming use rights that would serve as a basis for failing to comply with this section or any amendment thereto.
(3) Discontinuation of a state medical marihuana facility license shall constitute prima facie evidence that a nonconformity has been discontinued.
(Ord. passed 10-23-1978, § 15.04; Am. Ord. 2005-7, passed 7-25-2005; Am. Ord. 2017-02, passed 11-13-2017) Penalty, see §
152.999