(A) Intent.
(1) Within the zoning districts established by this chapter or amendments that may later be adopted there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this chapter was passed or amended, but which would be prohibited, regulated or restricted under the terms of this chapter or future amendment. It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival.
(2) Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the zoning districts involved. A nonconforming use of a structure, a nonconforming use of land or a nonconforming use of structure and land in combination shall not or enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.
(3) To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the 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 chapter.
(4) CONSTRUCTION is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.
(B) Repairs and maintenance.
(1) On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring or plumbing to an extent not exceeding 10% of the current replacement cost of the nonconforming structure or nonconforming portion of the structure as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.
(2) If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.
(C) Uses and structures. A lawful use or structure existing at the time this chapter is adopted or amended may continue even though such use does not conform to the district regulations subject to the following provisions.
(1) Whenever, a nonconforming use or structure has been changed to a conforming use, it shall not be changed back to a nonconforming use.
(2) If any nonconforming building is destroyed or damaged by any casualty, such building may be repaired or replaced and use continued providing said reconstruction shall not add to the nonconformity or add to the cubic contents of said building as the same existed at the time of such casualty; and provided further that such repair or reconstruction of such building shall begin within six months after such casualty and completed within a reasonable time thereafter. However, if the damage caused by such casualty is such as to cause a loss in value exceeding 50% of the replacement value immediately prior to such casualty, then it cannot be rebuilt for a nonconforming use. The loss in value shall be computed as the difference between the actual cash value of the structure immediately before and after the casualty. Cash value shall be the same as that used for insurance purposes as approved by the State Insurance Code.
(3) When a nonconforming use or structure is discontinued for a period of one year, it shall not be continued unless in conformance with the requirements of this chapter and SDCL § 11-6-39.
(4) Any nonconforming use may be extended throughout any part of a structure, which was arranged or designed for such use previous to the adoption of this chapter, but shall not be extended outside each structure.
(5) No existing nonconforming use or structure shall be enlarged, moved or structurally altered except to change to a permitted use. This is not to include normal repairs and maintenance, which do not enlarge, move or structurally alter a nonconforming use.
(6) Type I and Type II manufactured homes located upon any lot or lots of record at the time of the adoption of this chapter may be replaced by Type I and/or Type II manufactured homes of like dimensions and said replacement shall not be deemed to have changed the use thereof from a nonconforming to a conforming use. If a replacement Type I and/or Type II manufactured home is of larger dimension than the existing Type I and/or Type II manufactured home, then application must first be made to the City Board of Adjustment for conditional use permit.
(7) Nonstandard uses existing immediately prior to the effective date of this chapter may be continued, although such uses do not conform to the provisions hereof. Nonstandard buildings or structures may be enlarged or extended, converted, reconstructed or structurally altered as follows.
(a) Enlargements, extensions, conversions or structural alterations may be made as required by law or ordinance.
(b) Structural alteration of buildings or structures may otherwise be made if such changes do not further encroach into an existing front yard, side yard or rear yard which is less than the minimum required yards for the district in which they are located. Exception: the Board of Adjustment may allow buildings with side yard setbacks less than required herein to have additions erected in line with the existing building and provided further that said additions will be erected no closer to the lot line than the existing building and the addition shall further conform to all ordinance requirements.
(c) Enlargement, extension, conversion of buildings or structures may otherwise be made if such changes comply with the minimum required yards, lot area, height, landscaping, parking and density for the district in which they are located.
(8) Nothing contained in this section shall be so construed as to abridge or curtail the powers of the City Planning Commission/Board of Adjustment as set forth elsewhere in this chapter.
(D) Uses under conditional use provisions not nonconforming uses. Any use which is permitted as a conditional use in a district under the terms of this chapter (other than a change through Board of Adjustment action from a nonconforming use to another use not generally permitted in the district) shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.
(E) 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 after the effective date of adoption or amendment of this chapter, notwithstanding limitations imposed by other provisions of this chapter. Such lots must be in separate ownership and not of continuous frontage with other lots in the same ownership.
(1) This provision shall apply even though such a lot fails to meet the requirements of area or width, or both, that are generally applicable in the district, provided that yard dimensions and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations of the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the Board of Adjustment.
(2) If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this chapter, and all or part of the lots do not meet the requirements established for lot width and area, the land involved shall be considered to be an undivided parcel for the purposes of this chapter, 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 chapter, nor shall any division of any parcel be made which creates a lot with width or area below the requirements in this chapter.
(Ord. passed 7-7-2014)