A. Within the districts established by this chapter or by amendments thereto, there exist, may exist or will exist: uses of land, structures and lots which were lawful before this chapter was passed or amended but which would be prohibited, to be newly established under the terms of this chapter or future amendment. Inasmuch as these nonconformities are, by definition, alien to the character of a district created under this chapter, it is desirable to control these nonconformities. Over time, these nonconformities are intended to be reduced in number by obsolescence, destruction, abandonment or similar factors. Because nonconformities, so long as they exist, may conflict with the objectives of this chapter, such uses are limited in their expansion and changes.
B. A lawful existing use, building, structure or lot that is made nonconforming at the time of passage of this chapter or any applicable amendment thereto, may be continued except as otherwise set forth in this chapter.
C. In accordance with § 600-201B(2), the Zoning Administrator may identify and register nonconforming uses, buildings and structures. The owner of the premises of a nonconforming structure or owner of a lawful nonconforming use may, upon providing sufficient evidence, secure a certificate of nonconformance from the Zoning Administrator. Other sections of this chapter may require a certificate of nonconformance for certain uses (such as § 600-1203K for student homes). The certificate of nonconformance, for the purpose of this chapter, shall be considered the zoning permit. Such certificate shall be authorized by the Zoning Administrator and shall be for the purpose of ensuring to the owner the right to continue such nonconforming use or structure.
D. Existing nonconforming uses, buildings, structures, or lots shall not be enlarged, reconstructed, substituted or moved so as to extend or increase the nonconformity other than as specified in Subsection D(1); nor shall they be extended or enlarged after passage of this chapter by attachment to a building or premises or by the addition of other uses of a nature which would be prohibited generally in the district involved. Nonconforming uses are further subject to the following:
(1) Upon review by the Zoning Administrator, a nonconforming use may be enlarged up to but not more than 20% of its floor area and land area, whichever is more restrictive, as such existed at the time the use first became nonconforming; provided that such enlargement shall conform to all other regulations of the district in which it is situated. Such 20% shall be a cumulative maximum over the lifetime of the use. Access for persons with disabilities or fire egress may be added without being restricted by the 20% maximum expansion. A nonconforming building or structure may be expanded, provided the expansion conforms to this chapter.
(2) Normal maintenance, repairs and incidental alterations of a building or other structure containing a nonconforming use are permitted, provided they do not extend the area or volume of space occupied by the nonconforming use unless Subsection A is met.
(3) Residential nonconforming uses may be altered in any way to improve interior livability, provided that there is no increase the number of dwelling units on the lot.
(4) A nonconforming use shall not displace or replace a conforming use.
(5) A nonconforming use may be changed into a conforming use at any time. If the conforming use is equal to or less intensive than the prior nonconforming use, off- street parking requirements will not change. A substantial increase in use intensity for any conforming use necessitates provision of the net number of required off-street parking space.
(6) A nonconforming use may be replaced by a nonconforming use that is equally intense or less intense. The Zoning Administrator shall have the authority to approve a change within the same type of nonconforming use, such as from one personal service use to another personal service use, provided the applicant agrees to comply with all of the same conditions that applied to the previous use. This Zoning Administrator approval may be permitted by right. If the Zoning Administrator has doubts about the comparative intensity of the new versus previous use, special exception approval shall be required. All other proposed changes in a nonconforming use shall need special exception approval by the Zoning Hearing Board.
(7) A determination regarding the intensity of a replacement nonconforming use shall consider the following:
(a) Traffic generation and congestion, including truck and passenger car traffic.
(b) Nuisance characteristics such as emission of noise, odor, dust, smoke, fumes, fire hazards, glare and vibration.
(c) Hours and manner of operation.
(d) Waste disposal and storage.
(e) Parking demand, considering the proposed hours of the use.
(8) Buildings or structures, regardless of conformity or ownership, shall not be combined for the purpose of extending an existing nonconforming use or for creating a different nonconforming use.
(9) When a new nonconforming use is proposed, the Zoning Administrator may require that the applicant describe in writing the proposed operations to allow a review of the intensity of the new use versus the previous use. [Added 2-14-2011 by Ord. No. 8-2011]
E. Replacing/restoring nonconforming use, building or structure.
(1) In the event that 50% or more of the existing floor area or use of land occupied by a nonconforming use is voluntarily razed, legally condemned, or destroyed by fire, explosion or flood, it may not be restored, reconstructed or used as before except in strict compliance with the zoning regulations of the zoning district in which it is situated, unless special exception approval is granted for such use or activity.
(2) In the event that less than 50% of the existing floor area or use of land occupied by a nonconforming use is voluntarily razed, legally condemned, or destroyed by fire, explosion, flood or other phenomenon, it may not be restored, reconstructed or used as before unless such restoration, reconstruction or use commences within one year from the date of the damage.
(3) In any case, an existing lawful one-family dwelling (such as a one-family attached dwelling) may be reconstructed or replaced with a new one-family dwelling as a permitted-by-right use, provided the new dwelling is not more nonconforming in any measure than the existing dwelling. In such case, the construction shall be started within 12 months after the existing dwelling was damaged, destroyed or demolished.
F. Termination and abandonment of nonconforming uses, buildings or structures shall be subject to the following:
(1) Any nonconforming use, building or structure that is replaced by a conforming use, building or structure shall be deemed immediately abandoned and cannot thereafter be revived.
(2) A nonconforming use, building or structure discontinued for a period of 12 consecutive months shall be presumed abandoned and shall not thereafter be revived without proof, satisfactory to the Zoning Administrator, that the owner did not intend its abandonment through disuse. In making its determination, the Zoning Administrator shall take into account the owner's compliance (or noncompliance) with the provisions of this subsection and shall consider the impact the use will have on the character of the neighborhood.
(3) One or more of the following shall be deemed evidence of intent to discontinue and abandon a nonconforming use, building or structure:
(a) Failure to properly secure windows, walls and/or doors of the property.
(b) Use of the property for a conforming use.
(c) Demolition of the structure.
(d) Failure to apply for any licenses and/or permits that may be required to continue such nonconforming use.
(e) Failure to market a vacant property for sale or lease, during periods when the property is not actively under renovation.
(f) Failure to appeal the denial of a permit to continue the use.
(g) Failure to file letters of intent as per Subsection G.
(4) A nonconforming use, building or structure shall not be deemed abandoned under the following circumstances:
(a) The consequent restrictions imposed upon the use by a governmental authority during wartime.
(b) Destruction of the property by natural disaster (other than fire, flood or explosion).
(c) Cessation of business during any permitted repair to a structure or to the property.
(5) If a zoning permit or zoning approval is revoked by the City for good cause, and if the applicant does not bring the property and use into compliance with this Part within 120 days, then the City may consider a nonconforming use to have been abandoned.
[Added 2-14-2011 by Ord. No. 8-2011]
G. Any use that has been discontinued for a period of 12 continuous months shall be deemed abandoned, unless the owner or the owner's authorized agent submits to the Zoning Administrator, at the end of 12 months and every six months thereafter, a letter of intent which clearly indicates that attempts to secure a buyer or tenant for the use are ongoing. In order to claim that a nonconforming use that has been discontinued for more than 12 months has not been abandoned, a valid zoning permit shall have had been issued for the previous use, unless the applicant shows that a lawful use was on the premises that predated a requirement for a zoning permit. [Amended 2-14-2011 by Ord. No. 8-2011]