(A) Evidence of nonconformity.
(1) The burden of establishing a legal nonconformity is to be met by the owner or party seeking to apply the provisions of this chapter. The following items may constitute sufficient proof to establish if the nonconformity was lawfully established:
(a) Date of construction of the structure or date the use was established (Proof may consist of a certified copy of the business license or structure permit).
(b) Continuous operation of the nonconformity (proof may consist of affidavits signed by persons who have personal knowledge of the continuous use of the premises since said use was in conformity with the then-existing zoning regulations).
(c) Any advertisement, correspondence, or other documentation with a date identifying that the operation was legally in existence prior to February 18, 2020, annexation, or subsequent amendments.
(d) The date of collection or reporting of taxes, fees, or other payments that may establish the date of existence of the nonconformity.
(e) Any other proof of documentation that can legally establish the date of existence of the nonconformity.
(2) As part of the zoning approval process, §§ 154.245 through 154.253 requires the Zoning Administrator to determine if any part of the building permit application is nonconforming. If there is a nonconformity, then the owner must supply adequate proof that the nonconformity is lawful as defined in this subchapter. Upon submitting such evidence, the permit will be reviewed to determine if it complies with the requirements of this subchapter.
(3) If the owner cannot prove that the nonconformity is lawful, then it will be necessary to
bring the property into compliance prior to issuing any permit. If the owner fails to comply, zoning enforcement action may be necessary.
(4) Some reasons why the property may no longer be conforming is a change of zoning, amendments to the zoning district which no longer allow the use, or annexation of property that does not conform to village zoning districts.
(B) Illegal uses or terminated nonconforming uses. Properties subject to zoning enforcement for an illegal use or termination of a nonconforming use prior to February 18, 2020 are not eligible to continue as a nonconforming use and must be ceased.
(C) Notification of nonconforming uses.
(1) If a non-residential property undergoes a change in ownership, or a change in use, or if a new owner desires to expand, remodel, or renovate any structure on the property or do any other work that requires a building or occupancy permit, as required by this chapter, the owner shall meet with the Zoning Administrator to discuss the nonconforming status and, if required, the preparation of a mitigation plan. Upon notification of a nonconforming use or upon determination that a change in ownership or change in use or application for permit as provided herein, the Zoning Administrator shall prepare a notice of the nonconforming use, containing the following items:
(a) A description of the real estate sufficient for identification.
(b) The current zoning designation.
(c) A description of why the property is nonconforming.
(d) An explanation of regulations regarding nonconforming uses of structures.
(2) If an owner does not wish to comply with all the requirements stated in this chapter, the owner shall have a period of three months from the date of change in ownership or change in use or application for permit as provided herein, whichever is earlier, to submit a mitigation plan. If no plan is timely submitted and the property does not meet the requirements of this chapter, the use of the property shall be terminated.
(D) Mitigation plan submission. The following material shall accompany an application for a mitigation plan:
(1) Application for mitigation plan.
(2) Site plan meeting the requirements of this subchapter.
(3) A description of proposed measures to mitigate the impact of the nonconforming use and time schedule for instituting such measures.
(4) Fee as established by the Village Board of Trustees from time to time.
(E) Mitigation plan site plan requirements. Each application for a mitigation plan approval shall be accompanied by a site and landscape plan (collectively, the "site plan"). The dimensions of said site plan shall not exceed 24 inches by 36 inches and shall be drawn to a scale which is not numerically greater than 100 feet equals one inch. The following data and information shall be included in said site plan:
(1) The location, dimension, material, and configuration of all buildings, structures, and other improvements.
(2) A statement of the current use of the property. The owner may substitute another nonconforming use, insofar as the use proposed to be allowed through the mitigation plan is equal to, or is more restricted than, the classification of the former use and such substitution or addition does not increase congestion in the streets, impair the health, safety, morals or general welfare of the district in which it is located.
(3) The location and extent of usable open space.
(4) The location, access, and other dimensions of existing and proposed off-street parking facilities and the number and configuration of spaces to be provided.
(5) The location, dimensions, and materials of existing and proposed sidewalks, driveways, and other impervious surfaces.
(6) The location and intensity of illumination of any illuminated areas.
(7) The proposed use of open space.
(9) The location of all property lines, utilities, and related easements, including electric lines, storm drainage, sanitary sewers, and water services.
(10) The elevation of all buildings and structures to depict height.
(11) The lot size in square feet and the dimensions thereof.
(12) The land uses surrounding the lot(s) for which site plan approval is being sought.
(13) A date, north arrow, scale, legal description and address of the property, and name of the development.
(F) Procedure for mitigation plan review.
(1) Upon receipt of a complete application with the accompanying material, the Zoning Administrator shall schedule the item to be reviewed by the Planning and Zoning Board.
(2) The Zoning Administrator shall prepare a report, presenting the facts of the case to the Planning and Zoning Board. The report shall make a recommendation to forward the case to the Village Board of Trustees; to approve; to approve with additional requirements; or to defeat the proposed mitigation plan. In the event the Zoning Board of Trustees defeats the proposed mitigation plan, the case shall not be forwarded to the Village Board of Trustees.
(G) Mitigation plan findings. Before approving any mitigation plan, the Planning and Zoning Board shall make a favorable finding of fact, solely based upon evidence presented at the public hearing. The findings shall always include the following:
(1) That the proposed continued operation will not increase congestion in the streets, or impair the health, safety, morals or general welfare of the surrounding properties.
(2) That there is a plan to bring as many features of the use into compliance with this chapter as is practical, or with the intent of the chapter.
(3) That the owners are taking adequate measures to offset negative impacts from the operation.
(4) That the continuation of the nonconforming use, in consideration of the degree of land use conflict between a nonconforming use and its surrounding properties, will diminish the value of nearby property, nor impair the public health, safety, morals or general welfare of the surrounding properties.
(H) Mitigation plan approval. The Planning and Zoning Board will approve or defeat the proposed mitigation plan. Approval of the mitigation plan may also include additional conditions and requirements as are appropriate or necessary for the protection of the public health, safety, and welfare, and to satisfy thefindings required for approving a mitigation plan. Such conditions may include, but are not limited to the following:
(1) Regulate the location, extent, and intensity of certain aspects of the use as appropriate.
(2) Require additional landscaping or screening of such uses by means of fences, walls, and vegetation.
(3) Regulate vehicular access and the design and location of parking and loading areas and structures.
(4) Require conformance to health, safety, and sanitation requirements as necessary.
(5) Regulate signs and outdoor lighting to be more compatible with the surrounding neighborhood.
(6) Any other conditions deemed necessary to effect the purposes of this chapter.
(I) Mitigation plan certificate. As part of the approval of the request for a mitigation plan, the Planning and Zoning Board shall complete a certificate of approval which shall contain the following information:
(1) A legal description and common address of the subject property.
(2) A statement for each finding summarizing how such finding has been satisfied.
(3) Any conditions, safeguards, or flexible standards imposed on the mitigation plan as a condition of approval.
(4) A list of mitigation measures not indicated on the site plan.
(5) A time table for undertaking mitigation measures.
(6) Any exhibits, including the site plan, shall be attached to the mitigation plan permit with a statement that the mitigation plan approval is conditioned on the project being operated in accordance with such plans unless specific exceptions are stated in the certificate of approval.
(J) Failure to approve mitigation plan. If the Planning and Zoning Board fails to approve the mitigation plan, the landowner may elect one of the following options:
(1) Resubmit a new application and plan.
(2) Appeal to the Village Board of Trustees. If the Village Board of Trustees disapproves the mitigation plan, then the application shall be referred back to the Planning and Zoning Board to determine a termination date for the nonconforming use.
(3) In any one case, only three proposed mitigation plans may be submitted. If none of these plans are approved by the Planning and Zoning Board or, upon appeal, to the Village Board of Trustees, then a date for termination of the nonconforming use must be established.
(4) Such termination date shall be based on the severity of the impacts, the expected economic life of the structure, the market value of the investment, and any other relevant factors. In no case shall the termination date be longer than ten years.
(K) Failure to reapply for or to comply with the mitigation plan. Failure to comply with the mitigation plan shall constitute a zoning violation and shall be subject to zoning enforcement action.
(Ord. 2020-O-3, passed 2-18-2020)