§ 1224.05  NONCONFORMING USES.
   Where, at the time of adoption of this code, lawful uses of land or structures exist that would not be permitted by the regulations of this code, the uses may be continued so long as they remain otherwise lawful and provided:
   (a)   No such nonconforming uses shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this code unless it complies with the provisions of division (e) hereof.
   (b)   No such nonconforming use shall be moved, in whole or in part, to any portion of the lot or lot other than that occupied by such uses at the effective date of adoption or amendment of this code.
   (c)   No additional structures shall be constructed on a lot with a nonconforming use unless such new structure complies with the requirements of this code and the applicable zoning district.
   (d)   Change or substitution of nonconforming use.
      (1)   The lawful use of an existing building or structure can be continued even if such use is not permitted in the applicable district. If no structural alterations are made that increase the nonconformity, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more restricted use, as determined by the BZA. Such determination shall be made at a public hearing held in the same manner as a variance (see § 1226.10), including notice, but the variance review criteria of § 1226.10(c) shall not apply. At the hearing, the BZA shall make a determination if the proposed use is similar in nature and intensity, or is a more restricted use, allowable as a change or substitution under this section.
      (2)   Whenever a nonconforming use is changed to a less intensive nonconforming use, such use shall not thereafter be changed to a more intensive nonconforming use.
      (3)   Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the applicable zoning district in which such structure is located, and the nonconforming use may not thereafter be resumed.
      (4)   In permitting such change, the BZA may impose appropriate conditions and safeguards to protect adjacent properties.
   (e)   Expansion of a nonconforming use.
      (1)   Notwithstanding the foregoing provisions to the contrary, a structure containing a nonconforming residential use (not including mixed use buildings or live/work units) may be increased or improved, regardless of the applicable zoning district, provided the structure continues to be used for residential purposes only and meets all required setbacks.
      (2)   Any nonconforming, nonresidential use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the effective date of this code, but no such use shall be extended to occupy any land outside such building.
      (3)   Variances to expand a nonconforming use into a required setback or to otherwise vary a regulation that applies to the subject site shall be prohibited.
   (f)   Existing use reclassified as a conditional use.  In the event an existing use that was permitted by right at the time the use was established is thereafter reclassified as a conditional use in the applicable district due to a zoning text amendment, such use shall be considered to be an approved conditional use without any further action. However, any subsequent change to such use shall require review and approval by the Planning Commission in accordance with this chapter and § 1226.05. Such use, provided it is conditionally permitted in the applicable district, shall not be considered a nonconforming use.
   (g)   Termination of nonconforming uses.
      (1)   Termination of use through discontinuance.
         A.   When any nonconforming use is discontinued or abandoned for more than 12 consecutive months, any new use shall conform to the regulations of the district in which it is located, and the nonconforming use may not thereafter be resumed. The intent to continue a nonconforming use shall not be evidence of its continuance.
         B.   There may be cases when a structure, or structure and premises in combination, may not be converted to a conforming use because of the original floor plan and design (e.g. townhouses into a single-family residentially zoned area). In these cases, the BZA may determine that the nonconforming use may continue if the nonconforming use is the original use of the structure and/or premises. Appropriate safeguards, conditions and design standards may be required by the BZA so as to minimize the impact of such continuance on the area. Such review and determination shall be made at a public hearing held in the same manner as a variance (see § 1226.10), including notice, but the variance review criteria of § 1226.10(c) shall not apply.
      (2)   Termination of use by damage or destruction.
         A.   If a nonconforming residential dwelling in any district is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot provided it meets the same size in height and footprint, as well as complying with the same setbacks as previously existed.
         B.   If a nonconforming, nonresidential use in a residential district is damaged, but not to an extent greater than 50% of the principal structure's market value according to the applicable county auditor, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a certificate of zoning compliance.
         C.   If a nonconforming, nonresidential use in a residential district is damaged beyond 50% of the principal structure's market value according to the applicable county auditor, such structure and use may only be reestablished with approval by the BZA after consideration of surrounding uses and the impact of the nonconforming use. Such review and determination shall be made at a public hearing held in the same manner as a variance (see § 1226.10), including notice, but the variance review criteria of § 1226.10(c) shall not apply.
(Ord. O2018-02, passed 2-20-2018)