§ 153.279  NONCONFORMITIES.
   (A)   The Board of Adjustment shall hear and decide appeals from any land owner:
      (1)   To make a change in use of a nonconforming use;
      (2)   To replace a nonconforming use or structure which has been destroyed;
      (3)   To make a change in location of a nonconforming use of land; or
      (4)   For a special exception to allow an expansion of a nonconforming use.
   (B)   The Board of Adjustment may only grant a change in nonconforming use, replacement of a nonconforming use which has been destroyed, or change in location of a nonconforming use of land after having first held a public hearing and having determined that:
      (1)   (a)   The change will be more suitable and appropriate for the lot(s) on which it is located than the existing situation;
         (b)   The proposed change will have a less harmful effect than the existing situation on the properties surrounding the lot(s) in question; and
      (2)   The decision to grant the change will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise be detrimental to the public welfare.
   (C)   The Board of Adjustment, in granting the changes, may prescribe appropriate conditions and safeguards in conformity with this chapter in order to conform with divisions (B)(1) and (B)(2) above. Violation of the conditions and safeguards when made a part of the terms upon which the change was granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in § 153.999 of this chapter.
   (D)   The Board of Adjustment may grant a special exception for the expansion of a nonresidential nonconforming use or enlargement of a structure housing the nonconforming use only after having first held a public hearing and having determined each of the following in the affirmative:
      (1)   The nonconforming use will not occupy any additional lands beyond the boundaries of the lot on which the nonconforming use was located as of the date the use became nonconforming. The lot boundaries used to determine this were those existing at the time the use became nonconforming;
      (2)   The enlargement of any structure(s) or construction of additional structure(s) housing the nonconforming use will not result in a cumulative increase in total square footage of the building(s) greater than 50% of the total building square footage involved with the nonconforming use at the time of the first application for expansion pursuant to this section, or, a cumulative total increase of 1,000 square feet greater than that existing at the time of first application for the expansion, whichever is greater;
      (3)   If a change in use is involved, findings in the affirmative have been made pursuant to division (B) above of this chapter;
      (4)   The application does not involve any increase of size or height of any signage;
      (5)   There will be no odors, light emission (other than that equivalent to street lighting and/or lighting from any signage normally allowed in the N-B District), noises, vibrations or interference in radio or television detectable from the property boundary without instruments;
      (6)   In consort with the expansion, the entire nonconforming use will be screened on all sides in accordance with § 153.046(C) of this chapter. Walls or fences will be permitted only as necessary to reach the required height or opacity and where the structures are used they shall be accompanied by as much planted materials as feasible. Where the nature of the nonconforming use requires substantial street exposure along a major street part or the Board of Adjustment may waive all of the screening along the street. If the screening is waived, four street trees per 100 linear feet of street frontage shall be provided in lieu of the screening;
      (7)   Adequate provision and arrangement has been made or will be made concerning the following, where applicable:
         (a)   Access roads or entrance or exit drives with respect to matters such as automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire and other emergency;
         (b)   Off-street parking and loading areas where required and refuse and other service areas with respect to the impact upon the consideration in division (D)(7)(a) immediately above and the economic, noise, glare, odor and other impacts on adjoining properties and properties in the general neighborhood; and
         (c)   Utilities, water, sewerage, schools, fire and police protection, and other necessary public and private services and facilities with respect to its location, availability and compatibility.
      (8)   The use has been and will remain to be maintained in a manner that does not create a nuisance to neighboring properties;
      (9)   The use will not materially endanger the public health or safety if allowed to expand as proposed and developed according to plan;
      (10)   The proposed expansion together with mitigation plans (such as screening) would be at least equally suitable and appropriate for the lot(s) on which it is located as the existing situation;
      (11)   The proposed expansion, together with the mitigating measures would have a no more harmful effect than the existing situation on the properties surrounding the lot(s) in questions;
      (12)   The use is not a nonconforming use subject to removal after a given period of time (i.e., amortization); and
      (13)   These uses include certain manufactured home parks, certain junkyards and certain signs.
   (E)   The Board of Adjustment, in granting an expansion pursuant to division (D) above may prescribe appropriate conditions and safeguards in conformity with this chapter in order to conform to division (D) above. Violation of the conditions and safeguards when made a part of the terms upon which the expansion was granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in § 153.999 of this chapter.
(Prior UDO, § 15.5)  (Ord. ZTA-3-2013, passed 10-3-2013)  Penalty, see § 153.999