A non-conforming use may be continued so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following regulations:
(a) Change or Substitution to Another Non-conforming Use. A non-conforming use of a building, structure or land shall not be changed or substituted to another non-conforming use unless:
(1) The Board of Zoning Appeals, on appeal, finds that the use proposed is equally appropriate or more appropriate to the district than the existing non-conforming use, and that the use proposed is in less conflict with the character of uses permitted in the applicable zoning district than the existing non-conforming use, and that the proposed substitution is of no greater intensity than the previous use, pursuant to the criteria in Section 1274.03(c)(1), Expanding Non-conforming Uses and Structures. In permitting such change, the Board of Zoning Appeals may prescribe appropriate conditions and safeguards in accordance with other provisions of this Zoning Code and make such a part of the terms under which the change is granted.
A. Whenever a non-conforming use is changed to a less intensive use, such use shall not thereafter be changed to a more intensive non-conforming use.
B. Whenever a non-conforming use is changed to a use permitted in the district in which the lot is located, it shall cease to be considered a non-conforming use. Upon such compliance, no non-conforming use shall be made, resumed or reinstated.
C. Violation of any conditions and/or safeguards prescribed shall be deemed a violation of this Zoning Code and shall be punishable under Chapter 1260, Enforcement and Penalty.
(2) An application is filed with the Board of Zoning Appeals and such application includes payment of the fee established by the Village, and the items required in Section 1258.09, Variances.
(b) Land Occupied by Non-conforming Use.
(1) Expansion of Non-conforming Use of Land. A non-conforming use of land shall not be physically enlarged, increased, nor extended to occupy a greater area of land than was occupied by the use at the time it became non-conforming.
(2) Relocation of Non-conforming Use of Land. A non-conforming use of land shall not be moved in whole or in part to any portion of the lot or parcel other than those portions occupied by the use at the time it became non-conforming.
(c) Structures Occupied by Non-conforming Use.
(1) Expanding Non-conforming Uses within Structures. Upon approval by the Board of Zoning Appeals, a non-conforming use of an existing structure may be extended throughout any parts of a building that were arranged or designed for such use at the time of adoption or amendment to this Zoning Code, provided the intensity of the non-conforming use is not increased and no such use shall be extended to occupy any land outside such building not previously occupied by such non-conforming use. In determining whether intensity of use is increased, the Board of Zoning Appeals shall consider the following:
A. Hours of operation;
B. Volume and type of sales;
C. Type of processing activity;
D. Nature and location of storage;
E. Traffic generation by volume, type, and characteristics;
F. Parking and loading characteristics; and
G. Noise, smoke, odor, glare, vibration, radiation, and fumes.
(2) Expansion of Building(s). No such building shall be enlarged or expanded to increase the non-conforming use. No additional structures shall be constructed in connection with such a non-conforming use.
(3) Alteration or Reconstruction of a Building Occupied by a Non-conforming Use. No building or structure occupied by a non-conforming use shall be altered, improved, or reconstructed except when:
A. The use is changed to a use permitted in the district in which it is located; or,
B. The building, or portion thereof, is demolished by any means that is not the voluntary action of the property owner, in which case the building(s) may be reconstructed substantially the same as existed prior to destruction. Substantially the same is related to the building size and setbacks, the number of parking spaces, parking setbacks, driveway locations, landscaping, screening, etc. Such reconstruction shall be approved by the Planning Commission and such reconstruction pursuant to this section shall not be unreasonably withheld.
(d) Discontinuance of Use. Whenever a non-conforming use of a building, part of a building, lot or part of a lot is discontinued for more than one year, such discontinuance shall constitute abandonment of such use and any subsequent use of the building, part of a building, lot or part of a lot shall conform to the use regulations specified by this Code for the district in which such land is located.
(Ord. 2009-17. Passed 9-15-2009.)