(A) Non-conforming structure or use. A structure or use lawfully occupying a site on the effective date of the original zoning ordinance, dated July 28, 1980, of or amendments thereto, which does not conform to the regulations for the district in which it is located, shall be deemed to be a non-conforming structure or use.
(B) Definitions.
ALTERATION OF A NON-CONFORMING STRUCTURE. A partial change to a structure, not involving enlargement of the external dimensions of the structure.
ALTERATION OF A NON-CONFORMING USE. A change in the characteristics of the use (for example, hours of operation or type of vehicle serviced) but not a change in the use.
EXPANSION. Any increase in any external dimension of a structure, or any increase in land area devoted to a use.
REPLACEMENT OF STRUCTURE. Removal that exceeds 80% of an existing structure and placement of a new structure.
REPLACEMENT OF USE. The discontinuance of an existing use and commencement of a new use.
50% MARKET VALUE THRESHOLD. Alterations or expansions within any five-year period, of which equals or exceeds 100% of the market value of the structure (as indicated by the records of the County Assessor) at the beginning of the five-year period. The 50% market value threshold shall not apply to an alteration or expansion for purposes of conformance with the Flood Hazard Overlay Zone.
(C) Burden of proof.
(1) In matters relating to the continuation, alteration, expansion or replacement of a non-conforming structure or use, the applicant bears the burden of proof for establishing:
(a) The current use or structure lawfully existed at the time the applicable zoning requirement went into effect; and
(b) The level of use and/or dimensions of the structure that existed at the time the applicable zoning requirement went into effect.
(2) Standard evidence that a use or structure has been maintained over time may include dated documents such as: building permits, land use approvals, development permits, other governmental permits, utility bills, tax records, assessor records, loan statements, business license, directory listings, published references or other documents deemed admissible by the City Planner.
(3) If the regulation, which rendered the structure or use non-conforming, was enacted more than 20 years prior to the time of application, the applicant need only provide evidence or information pertaining to the 20 years immediately previous to application.
(4) As part of the application process, the City Planner may require the applicant to submit a site survey or similar information to assist in making these determinations.
(D) Non-conforming use and structure regulations. Non-conforming uses and structures may be continued, subject to the following regulations.
(1) Routine maintenance and repairs, including elevation changes for flood requirement compliance, may be performed on sites, the structure or use of which is non-conforming.
(2) No non-conforming structure or use shall be moved, altered or enlarged without permission of the Planning Commission, unless required by law or unless the moving, alteration or enlargement will be performed in the elimination of the non-conformity.
(3) No structure partially occupied by a non-conforming use shall be moved, altered or enlarged in such a way as to permit the enlargement of the space occupied by the non-conforming use, without permission of the Planning Commission.
(4) Notwithstanding the provisions of this section, alteration or expansion of a non-conforming use or structure shall be allowed if necessary to comply with any lawful requirement.
(E) Criteria. The Planning Commission may grant an application for an alteration, expansion or replacement of a non-conforming structure or use, filed in accordance with the provisions of this Code, only if the non-conforming structure or use is brought into conformance, or, on the basis of the application and the evidence submitted, it makes findings that support the following criteria:
(1) All proposed new construction will comply with all standards of the zone;
(2) The request will have no greater adverse impact on neighboring areas than the existing use or structure when the current zoning went into effect, considering:
(a) A comparison of existing use or structure with the proposed change using the following factors:
1. Noise, vibration, dust, odor, fumes, glare or smoke detectable at the property line or off-site;
2. Numbers and kinds of vehicular trips to the site;
3. Amount and nature of outside storage, loading and parking;
4. Visual impact;
5. Hours of operation;
6. Effect on existing vegetation;
7. Effect on water drainage and water quality; and
8. Service or other benefit to the use or structure provided to the area.
(b) The character and history of the use and of development in the surrounding area.
(3) The request shall maintain a minimum separation of six feet between structures, and comply with clear vision requirements; and either:
(a) The non-conforming structure or use, including the proposed alteration/expansion, preserves the rights of neighboring property owners to use and enjoy their land for legal purposes; or
(b) The applicant demonstrates that bringing the structure or use into compliance is either physically impracticable or financially onerous, and that mitigation will be implemented and maintained which will substantially offset the impact(s) to neighboring property owners.
(F) Abandoned structures. If a non-conforming use has been changed to a conforming use, or if the non-conforming use of a building, structure or premises ceases for the period of one year or more, said use shall be considered abandoned, and said building, structure or premises shall thereafter be used only for uses permitted as a matter of right or as a conditional use in the district in which it is located.
(G) Destruction. If a structure containing a non-conforming use is destroyed by any cause, it may be rebuilt for that use subject to the requirements that, if the structure is not returned to that use within one year from the date of destruction, a future use on the site shall conform to this chapter.
(H) Existing permits. Nothing contained in this chapter shall require any change in the plans, construction, alteration or designated use of a structure for which a valid permit exists prior to the adoption of this chapter and subsequent amendments thereto, except that if the designated use will be non-conforming, it shall be considered a discontinued use if not in operation within one year of the date of issuance of the building zoning permit.
(I) Uses not enclosed. If an existing non-conforming use, or portion thereof not housed or enclosed within a structure, occupies a portion of a lot or parcel of land on the effective date hereof, the area of such use may not be expanded. Nor shall the use, or any part thereof, be moved to any other portion of the property not theretofore regularly and actually occupied by such use; provided that, notwithstanding the preceding, this shall not apply where such increase in area is for the purpose of increasing an off-street parking or loading facility to the area specified in this chapter for the activity carried on in the property. This shall not be construed as permitting unenclosed commercial activities where otherwise prohibited by this chapter.
(J) Regulations for continuance. A building or structure lawfully occupying a site on the effective date of the ordinance incorporated in this chapter of or amendments thereto, which does not conform to the setback or coverage regulations for the district in which it is located, shall be deemed to be a non-conforming structure and may be continued, subject to the following regulations.
(1) If a building or structure, in existence on the effective date of this chapter and subject to any yard, location or coverage restriction imposed by this Code, fails to comply with such restriction, such building or structure may be enlarged or altered to the extent that such alteration or enlargement does not itself encroach upon any required restriction.
(2) If a non-conforming structure is destroyed by any cause other than a willful act by the owner(s) or his or her agent, it may be rebuilt within the foundation and building outlines of that pre-existing structure. This is subject to the requirement that, if destruction exceeds 50% of its assessed value as indicated by the records of the County Assessor and it is not returned to use within year, a future structure on the site shall conform to this chapter. The willful removal or destruction of the structure by the owner(s) or his or her agent does not entitle the right to replace the structure to its original form and, hence, any new structure on the property must conform to the lot requirements as specified for the applicable zoning district.
(Ord. 1283, passed 12-2-2013; Ord. 1335, passed 7-2-2018) Penalty, see § 152.999