A. Lawful Nonconforming Uses Protected: The owner of a lawful use of land or lawful use involving individual structures, or of a structure and land in combination, existing on the effective date of this title or amendment, has the right to continue the use of the property despite the subsequent enactment of conflicting ordinances so long as it remains otherwise lawful, subject to the provisions of this chapter.
B. Fundamental Character Of The Use: It is the intent of this chapter to preserve and protect the fundamental or primary character of the use of the property prior to the enactment of conflicting ordinances, but not to encourage their survival.
C. Vested Right: A nonconforming use shall exist if the owner or developer of such use has lawfully, in reliance on existing laws, ordinances or permits, made substantial expenditures or otherwise committed himself, to a substantial disadvantage, before the law, ordinance, or permit is changed. Substantial shall be measured by consideration of all factors evidencing a change of position. To avoid undue hardship, nothing in this title shall be deemed to require a change in the plans, construction or designated use of any building on which preliminary approvals and/or building permits were granted and remain currently valid or where actual construction was lawfully begun prior to the effective date hereof and upon which actual building construction has been carried on diligently. (Ord. 1628, 1-12-2015)
A. Generally: A nonconforming use shall not be extended, enlarged, or changed after the effective date hereof unless the use of the land and/or use of the structure is changed to a use which is permitted or conditionally permitted in the district in which it is located and the applicant receives design review and, where applicable, conditional use approval.
1. Policy: Nonconforming uses are declared by this title to be incompatible with permitted uses in the districts in which such use is located. While the continuation of nonconforming uses is designed to avoid the imposition of hardship on the owner of the property, the underlying policy of this title is to restrict and ultimately abolish, not enlarge, nonconformities, in order that structures and uses will be segregated in areas suitable for them in accordance with a comprehensive plan for the utility and welfare of all.
B. Character Of The Use: A use is extended or enlarged where the character, nature, and/or purpose of a new use are different from those of the preexisting nonconforming use. Factors constituting an unlawful expansion or extension of a prior nonconforming use of land include: 1) the extent to which the current use reflects the nature and purpose of the original use; 2) whether there is a difference in the quality or character, as well as the degree of the use; and 3) whether the current use is different in kind and/or impact upon the neighborhood resulting from differences in the activities conducted on the property. To qualify as a continuation, a use must be sufficiently similar to the existing nonconforming use so as not to constitute a new or different use.
1. Intensification Distinguished: The mere intensification of a nonconforming use does not render it unlawful provided the character and impact of the use are not enlarged or expanded.
2. Commercial Modernization Distinguished: The reasonable substitution or replacement of modern equipment or facilities for obsolete or dilapidated equipment does not constitute an enlargement or extension provided the character of the use is not enlarged or expanded.
C. Change Of Nonconforming Use: Any building or part of a building or any land which as of the time of the adoption of this title is being put to a lawful nonconforming use may be changed to a conforming use, or changed to a nonconforming use which is less intensive in character than the present nonconforming use upon the issuance of a conditional use permit by the council. In permitting such change, the council may require appropriate conditions and safeguards in accord with other provisions of this title.
With an accompanying nonconforming use design review application, reasonable alterations of a nonconforming structure ancillary to any such change in use is permissible provided that all such alterations comply with this code and do not amount to an enlargement or expansion of said use.
D. Nonconforming Use Of Open Land: No legal nonconforming use of land may be expanded or extended to occupy additional land area nor shall the boundary of any site containing a nonconforming use be relocated, extended, or expanded.
E. Nonconforming Lots Of Record:
1. Single Nonconforming Lots Of Record: In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date hereof, notwithstanding limitations imposed by other provisions of this title. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership (see subsection E2 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 hard dimensions and requirements other than those applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located.
2. Nonconforming Lots Of Record In Combination: If two (2) or more lots or a combination of lots and portions of lots with continuous frontage in single ownership are of record at the effective date hereof, and if all or part of the lots with no buildings do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this title and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this title, nor shall any division of any parcel be made which creates a lot with a width or area below the requirements stated in this title.
F. Nonconforming Structures: Any existing nonconforming structure devoted to a permitted or conditionally permitted use in the district in which it is located may not be enlarged, extended, reconstructed, or structurally altered unless a conditional use permit and design review approval is obtained from the city and the provisions of this chapter are otherwise adhered to. A nonconforming structure devoted to a nonconforming use may not be enlarged, extended, or reconstructed unless the structure is devoted to a permitted or conditionally permitted use and design review and, where applicable, conditional use approval is obtained from the city.
1. With an accompanying nonconforming use design review application, reasonable alterations of a nonconforming ancillary structure devoted to a nonconforming use provided that all such alterations comply with this code and do not amount to an enlargement or expansion of said use.
2. No building partially occupied by a nonconforming use shall be altered in such a way to permit the enlargement or expansion of the space occupied by such nonconforming use. However, a nonconforming use may be extended to include the structurally unaltered entire floor area of the existing structure or building in which it was conducted at the time the use became nonconforming.
3. Additions or structural alterations to a legal nonconforming structure shall be permitted to the extent required by law.
4. Maintenance, minor alterations, and minor repairs necessary to keep nonconforming uses in sound condition during continuance of such use shall be permitted. On any nonconforming structure, or portion of a structure containing a nonconforming use, work may be done on ordinary repairs or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing; provided, that the cubic content existing when it became nonconforming shall not be increased. Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety upon order of such official. Reasonable alteration of any such use may be permitted to continue the use; however, alteration is not permitted for a purpose, or in a manner, substantially different from the use to which it was put before alteration. Alterations are prohibited which cause any change in the use, structure, or physical improvements of greater adverse impact on the neighborhood except as provided for herein.
5. The placement on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be generally prohibited in the district in which such use is located shall constitute an enlargement or expansion of a use. (Ord. 1628, 1-12-2015)
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