(A) General guidance.
(1) Purpose.
(a) This section is designed to address land uses and development situations lawfully permitted before they were made nonconforming by subsequent changes to zoning code regulations. Nonconformities may result when a new or changed zoning district is later applied to a property or when specific development requirements in this section are changed via a text amendment, making properties out of compliance in terms of one or more ordinance standards.
(b) Such nonconformities could be related to the allowed land uses, density or intensity of development, or development standards that are set forth in the regulations for various site improvements.
This section sets forth mechanisms to limit, restrict, control, and/or eliminate various uses of land, buildings, structures, development site features, lots, and/or signs which were legally established in compliance with previous regulations contained in this chapter, yet do not meet the specifics of current amendments to this chapter. All such situations are collectively referred to as "nonconformities."
(2) Intent. The following intent statements guide the town's approach to handling nonconformities.
(a) Eliminate nonconformities over time. Continued existence of nonconformities may frequently be inconsistent with the purposes for which zoning regulations are established, and the intent of these provisions is to achieve the gradual elimination of such nonconformities to the greatest extent possible. While nonconformities may continue in their current form until they are eventually remedied, the intent is to restrict or curtail further investments which would make them more permanent, in contradiction to the desired purposes of this section.
(b) Balance property rights. These requirements seek to recognize and balance the property rights of the owner who established activities prior to the official date of changes to the regulations with the current community welfare and character of surrounding property.
(c) Differentiate nonconformities based upon nature of the situation. Nonconforming situations which have a lesser impact on the immediate area have fewer restrictions than those with greater impacts. These provisions define different types of nonconformities by establishing different levels of regulation for each category. The degree of restriction to each separate category is a range of treatments based upon the nature of the nonconformity and whether it is detrimental to an area due to disruptive or incompatible effects as opposed to one which is fairly benign and viewed as minor or more of a nuisance.
(d) Recognize conflicts with other objectives. These requirements recognize that a strict application of the most stringent nonconformity provisions may conflict with broader community objectives and could yield unintended consequences. Of specific interest is how these provisions might negatively affect efforts to reduce vacancies and disinvestment in properties, promote suitable redevelopment, and support the reasonable reuse of properties such that they contribute to the town's viability. Hence, the requirements for certain improvements may be reduced or even eliminated if meeting them is deemed impractical or unreasonable given the constraints on the existing site in relation to the now-applicable development standards. Further, consideration may also be given to the extent of any required improvements in relation to the specific nature and scope of the proposed reuse or redevelopment project itself or the location of the property.
(e) Address unique issues related to damage or destruction. This section provides for methods to account for unique and peculiar circumstances caused by damage or destruction of structures by natural or man-made events as opposed to general degradation over time.
(B) General provisions.
(1) Legal nonconformities. Existing legal nonconformities (hereafter referred to as nonconformities can remain and continue in accordance with the rules and regulations set forth in this section.
(2) Legal situations. Illegal activities which did not receive proper approvals by the town are not considered nonconformities.
(3) Applying nonconformity rules. The rules of this section are applied first by reviewing which provisions are applicable to the nonconformity, e.g., whether the nonconformity involves a lot, use, structure or a combination thereof. When a combination of a nonconforming lot, structure or use exists, each segment of the nonconformity is reviewed independently of the others.
(4) Burden of proof. The burden of proof to determine whether a lawfully established nonconformity exists and was compliant with the zoning, subdivision, building and other development regulations in effect at the time the use, building, structure, development feature, or sign was created is placed upon the property owner and not the Town of Mount Pleasant. Appropriate evidence must be provided to the Zoning Administrator to be able to establish a valid nonconformity. Upon receipt of adequate proof, the Zoning Administrator shall acknowledge such proof in writing and decide on the validity of the claim.
(5) Prior variance for development standard. Where a variance, special exception, or other modification has been previously granted for a different development standard by the Board of Zoning Appeals, the Planning Commission, or staff, that altered development standard shall be deemed conforming to these regulations.
(6) Vested rights may continue. Prior vested activities or improvements may proceed as previously approved under prior regulations and do not have to be altered or changed but will be considered nonconformities from that point forward.
(7) Nonconformities not dependent upon ownership. Changes of ownership, tenancy, or management of an existing nonconformity are permitted but are still subject to these provisions.
(8) Nonconformities created by government action. In situations where a nonconformity is created on a private property due to government action to provide public amenities, utilities or infrastructure, the nonconformity will be considered as legal conforming situation, and the property owner shall be held harmless and relieved of the need to remedy the nonconformity.
(9) Change or reversion not allowed. A change to another nonconformity or a change back to nonconformity once a property has been brought into compliance with new requirements shall not be allowed.
(10) Abandonment or discontinuance.
(a) Loss of nonconforming status. If a property upon which a nonconformity exists is brought into conformity with existing codes, abandoned, or its use is discontinued for a continuous period of 180 days, whether temporarily or permanently, the legal nonconforming status is lost. Thereafter, nonconformities may only be replaced with uses, buildings, structures, and site development features which meet the existing zoning ordinance at the time. A nonconforming use or structure is considered ceased or abandoned when any of the following occur:
1. No business receipts or utility charges or payments can be documented;
2. Normal occupancy and/or use is no longer evident as indicated by removal of equipment normally required, such as, but not limited to, electrical service;
(b) Timing of repairs. In situations where the applicant is actively working towards obtaining a permit, as evidenced by documentation of regularly submitted plans, the Zoning Administrator, in coordination with the Building Official, may extend the 180-day window to allow the issuance of a building permit to address issues related to the nonconformity. Time spent renovating or repairing a nonconforming building, structure, or sign is not considered a discontinuance provided that:
1. All appropriate development approvals and permits have been obtained;
2. The renovation or repair is completed within 18 months of commencement; and
3. The use is reestablished within two months after completion of repairs and renovations.
(C) Definitions. For purposes of this subchapter the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BUILDING, NONCONFORMING. A primary building(s) or a portion thereof where the main activities of a use are conducted and without which building(s) the use could not operate or exist which once complied but no longer conforms to the site area, coverage, setback, or other open space, height, or other regulations prescribing physical development standards for the district in which such building is located.
LOT OF RECORD, NONCONFORMING. An established lot where the minimum area, minimum lot width, minimum street frontage, etc. was lawful prior to the adoption, revision, or amendment of the Zoning Code, but which fails by reason of such adoption, revision, or amendment to conform to the present requirements of the zoning district.
NONCONFORMITY, LEGAL. A use, parcel of land, development, building, structure, or sign that was legally constructed, created, or installed with proper permits or approvals but which does not now comply with the applicable provisions of this chapter. (May generally be referred to as a "nonconformity").
SIGN, NONCONFORMING. A permanent sign lawfully erected and maintained prior to the adopting of this section that does not conform with the requirements of this section related to location, height, area, or similar features.
SITE FEATURE, NONCONFORMING. A characteristic of a building or property shown on a subdivision plan or a site plan, such as signs, parking, loading, landscaping, performance standards, or condition of a special/provisional use, that lawfully existed prior to the enactment of the requirements of this chapter, but does not comply with the current requirements of this chapter.
STRUCTURE, NONCONFORMING. Any accessory or ancillary improvement or a portion thereof, including garages, sheds, pools, decks, etc., which once complied but no longer conforms to the
site area, coverage, setback, or other open space, height, or other regulations prescribing physical development standards for the district in which such structure is located.
USE, NONCONFORMING. A land use(s) as identified in the use table contained in § 156.325 which lawfully occupied a building or was located on property at the time this code became effective, which has been lawfully continued and which does not now conform with the use regulations.
(D) Repairs, damage, modifications or changes to properties with nonconformities. Construction activities on properties containing nonconformities are subject to the restrictions, limitations and guidelines of this subsection except as otherwise modified or exempted in subsequent sections depending upon the nature of the situation.
(1) Minor maintenance and repair. Minor repairs and maintenance of nonconforming situations may occur without expanding or altering the building or structure. Incidental improvements which are exempt from meeting existing ordinance requirements include the following:
(a) Maintenance of land areas to protect against health hazards and promote the safety of surrounding land uses;
(b) Repairs that are required to remedy unsafe conditions that cause a threat to public safety as determined by appropriate building, fire, or zoning code officials;
(c) Incidental alterations such as internal reconfigurations of an existing building;
(d) Limited modifications to an existing building facade, such as recladding or repainting;
(e) The addition or substitution of an awning or awnings; and
(f) Modifications or additions to approved landscaping.
(2) Extensions or expansions limited. A nonconformity shall not be enlarged, intensified, or extended in such a way as to displace a conforming use or building or to occupy additional land area or height.
(3) New development associated with nonconforming development. New development can be allowed on a property with existing nonconformities, provided the new construction meets all requirements of town ordinances, and the existing nonconformities on site as addressed in division (E) below.
(4) Damage due to neglect. Any nonconforming building or structure (including signs) damaged to more than 50% of its reasonable replacement value through neglect, deferred maintenance, or normal wear and tear over a period shall not be reconstructed and used as before such degradation.
(a) Replacement cost calculation for buildings. For the purpose of this section, this percentage shall be calculated by dividing the estimated cost of restoring the building as nearly as possible to its condition prior to the occurrence by the assessed value of the building (excluding the value of the land) as determined by the county tax assessor immediately prior to the occurrence.
(b) Replacement cost calculation for other structures. The percentage of damage for other structures shall be calculated by dividing the estimated cost of restoring the structure (or sign) by its reasonable replacement cost.
(5) Improvements/restoration over rolling five-year period. Major renovation or expansions, or restoration due to neglect, where the value of such improvements or restoration to a building made within a five-year period exceeds 50% of the assessed value of the structure (not including land costs), trigger the need to address existing nonconformities on site as addressed in division (D) below.
(6) Damage or destruction due to unforeseen hazards. Any nonconforming building or structure (including signs) damaged or destroyed due to natural or manmade hazards such as fire, flood, or other catastrophic event beyond the control of the property owner, may undergo an in-kind replacement or reconstruction in accordance with the limitations and exceptions contained in this section.
(a) Increase in nonconformity limited. In general, except as otherwise allowed by these provisions, the degree of nonconformity may not be increased.
(b) Replacement or reconstruction limitations. Structures may be placed in the same location on the lot within the confines of the building footprint and with no greater building height, total [habitable] floor area, or total number of dwelling units as the most recent structure(s) existing on the lot prior to such damage.
(c) Exception for increased elevation. An increase in the elevation of the building due to floodplain regulations contained in Chapter 155 shall not be counted as an increase in height.
(d) Time limit for reconstruction or repair. Except when Town Council might declare a special emergency to suspend certain aspects of this chapter, a building permit for any reconstruction or repair under this section shall be issued within 12 months of the date of damage. Further, a certificate of occupancy for such repaired or restored building shall be secured within 24 months of the date of the building permit issuance. Such time limitations may be extended after receiving a written request from the property owner with appropriate documentation to justify an extension such as:
1. Other approvals required by different levels of government or other agencies are in progress;
2. The property is the subject of litigation, and/or;
3. The property is under dispute for an insurance settlement due to the event.
(E) Degree of compliance required for modified or changed nonconformities. The general term "nonconformities" addresses many different deviations from the strict adherence to the zoning code, resulting in varying levels of negative impacts to the general public. In the interest of balancing the demands of the code with the realities faced by property owners attempting to obtain fair use of their properties, this section defines three levels of nonconformities, with guidance as to the application of town codes in the modification or redevelopment of these nonconformity situations.
(1) Class 1 nonconformities (nonconforming use of land). Class 1 nonconformities are created when the primary land use(s) are affected by regulatory changes, notwithstanding the allowances made for damage or destruction in division (D)(6) above. Due to the scale and degree of nonconformance from current ordinance requirements, these are considered the most detrimental nonconformity in the hierarchy established in these provisions, and the town seeks to eliminate them as quickly as possible because of the negative effects they have on the surrounding community.
(a) A nonconforming use of land shall not be enlarged or expanded, nor physically extended to occupy a larger area of land than was occupied at the time of the enactment of this chapter.
(b) The use shall not be moved in whole or in part to another location on the lot or parcel of land other than that occupied by the use at the time of the enactment of this chapter.
(c) A nonconforming use may be extended, however, within any part of an existing structure which was arranged for such use prior to the enactment of this chapter.
(2) Class 2 nonconformities (buildings and structures). Class 2 nonconformities involve situations where the buildings and structures located on a site do not meet the development standards currently defined by this section. These nonconformities (typically) address the size or the physical location of the building or structure in relation to the lot lines or other nearby buildings or structures. This section is designed to require upgrades of nonconforming development elements that affect the appearance and impacts of a site. It is not intended to require extensive changes such as moving or reducing the height of buildings which would be extremely impractical.
(a) Nonconforming building. A nonconforming building may be expanded, without bringing the entire nonconforming building into conformity with these regulations, only when the expansion area itself meets all setback and dimensional requirements of the property. In cases where the building is nonconforming solely as a result of a setback encroachment, additions to the structure can be allowed, provided the new addition does not project any further or deeper into an already encroached upon setback.
(b) Nonconforming building on new lot. If a previously developed lot is subdivided into multiple conforming lots, any existing building on a lot that is rendered nonconforming as a result of such split shall be deemed to be a legal nonconforming building; however no further expansion or alteration of such building shall be allowed that would increase the degree of nonconformity of the buildings in any respect.
(c) Nonconforming accessory or other structures. A nonconforming structure that exists on a site may be maintained within its current height and footprint but may not be expanded. In order to expand such accessory use it must be brought into compliance with all aspects of the current code.
(3) Class 3 nonconformities (site features, lots of record, signs). Class 3 nonconformities involve ancillary, but important, development standards, as well as the dimensional aspects of building lots and signs. The intent is to address and improve the quality of these site conditions without compromising the reasonable reuse of the site.
(a) Nonconforming features on development sites.
1. In situations where nonconformities exist regarding the site features on a site and an application is made for an allowable expansion of the use, building, or structures on the site, the applicant must ensure that related improvements are also made to the greatest extent practicable. These Class 3 nonconformities shall include, but not be limited to the following improvements and features in the priority order as listed:
a. Parking and loading areas;
b. Stormwater;
c. Landscaping and bufferyards;
d. Screening;
e. Sidewalks and other pedestrian circulation systems;
f. Exterior lighting;
g. Bicycle parking; and
h. Paving of outdoor storage and display areas.
2. The Zoning Administrator, staff reviewers, or the Design Review Board (ORB) shall, as applicable, determine adequate compliance with this section, to be documented in writing with copies to both the applicant and town files.
(b) Nonconforming lots of record. Any nonconforming lot may continue to be used without a change in boundaries and may be utilized or developed under the applicable zoning, provided that any such activity is otherwise authorized by these regulations.
1. If only one lot is involved, the owner may use such lot if the dimensional requirements, including front, side, and rear yard setbacks, meet 80% of each numerical standard established in the district. If a dimensional requirement must be modified more than 20% to accommodate the proposed use of the lot, a request for relief must be considered by the Board of Zoning Appeals.
2. If the owner of two or more adjoining nonconforming lots decides to build on or sell such lots, the owner must combine them to comply with the minimal dimensional requirements of this chapter.
(F) Special considerations or exceptions. This section is purposefully designed to recognize the need to treat certain types of nonconforming properties in a different manner from the general situation due to unique circumstances or other overriding community goals which are identified in adopted town plans, policies, and ordinances.
(1) Historic properties. Properties in historic districts, or otherwise designated as historic, may be considered conforming to this code with respect to any height, setback, yard, area, or other dimensional standard. In this regard, these existing conditions may supersede any conflicting standard set forth in the zoning district in which the building is located, and may be applied to the building and the site in making future determinations of conformity as to the existing building or any changes consistent with an approved Certificate of Appropriateness.
(2) Mobile homes. An existing nonconforming mobile home may be replaced with another mobile home on properties located within a Settlement Community land use designation as identified in the Comprehensive Plan or any associated zoning district intended to implement such a land use designation.
(3) Special plan or zoning areas. Existing nonconformities may be handled through other unique exemptions or alternative treatments within any special zoning district(s) which explicitly addresses them. As a result, such nonconformities may not be subject to all the requirements of these provisions.
(G) Appeal process. Any person or party aggrieved by these provisions may appeal to the Board of Zoning Appeals (BOZA) for relief in accordance with § 156.411.
(Ord. 21007, passed 3-9-21) Penalty, see § 156.034