A. Purpose:
1. The city of West Des Moines intends that buildings and structures, and the uses of land, buildings, and structures which do not comply with the regulations provided in this title for the district in which the structure, building, use, or land is located eventually will be discontinued, removed, or replaced. The purpose of this section is to provide regulation of nonconforming buildings, structures, and uses and to specify conditions or circumstances where those nonconforming buildings, structures, or uses shall be permitted to continue.
2. Nothing in this title shall be deemed to prevent the strengthening or restoring to a safe condition any building, structure, or part thereof declared to be unsafe by the appropriate authority.
3. To be a legal nonconforming structure, building, lot, or use, the same must have been lawfully established on or before the effective date of this title and must have been in active use. The provisions of this section also shall apply to buildings, structures, uses of buildings or structures, or uses of land which hereafter become nonconforming due to the adoption of this title, amendments thereto, or rezonings.
4. Landowners shall bear the burden of proof to show that a lot, use of land, structure, use of structure, or characteristic of use of land that is nonconforming with the current zoning ordinances in force on the subject land comes under one or more of the exceptions to the zoning requirements provided in this section and that such otherwise nonconforming lot, use of land, structure, use of structure, or characteristic of use of land was lawfully established on the subject property. Conformity or nonconformity runs with the land, not with the owner.
B. Five Basic Categories Of Nonconformity Are Recognized:
1. Nonconforming lots of record: These lots were legal when they were subdivided but do not meet the current requirements for width, depth, area, access, or other requirements.
2. Nonconforming use of land: These are land uses that would not be permitted under current regulations, but which were established before the regulations went into effect.
3. Nonconforming structures: These are buildings or structures that were legal at the time they were constructed, but encroach into the current yard setbacks or exceed the current height or area limitations.
4. Nonconforming uses of structures: These are uses of buildings or land and buildings that would not be permitted under current regulations but which were established before the regulations went into effect.
5. Nonconforming characteristics of use: This is a category that covers nonconformities to the parking, landscaping, signage or other requirements not covered by the other categories.
C. Provisions:
1. Nonconforming Legal Lots Of Record:
a. If two (2) or more lots or combinations of lots and portions of lots with continuous street frontage in single ownership are of record as of the effective date of this title, or amendments thereto, and if all or part of the lots do not meet the requirements for lot width and area as established by this code, the lands involved may be considered to be an undivided parcel for the purposes of this title, and no portion of said parcel shall be used or occupied which does not meet lot width and area requirements, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements of this title. If such lots or parts of lots are to be considered an undivided parcel, the owner will be required to either replat the lots in question or to legally tie the lots together by recording a lot tie form with the appropriate county recorder.
b. The use of existing legal lots of record will be governed by the provisions of subsection C1a of this section and all applicable regulations for the district in which the lot is located.
2. Nonconforming Building Or Structure:
a. A nonconforming building or structure lawfully established on or before the effective date of this title may be maintained although it does not conform to the area, height, yard, open space, landscaping, or visual clearance provisions of this title, except as otherwise provided in this section.
b. Repairs and nonstructural alterations may be made to a nonconforming building or structure, for ordinary maintenance repairs including internal and external painting, decorating, paneling, and the repair or replacement of doors, windows, nonbearing walls, fixtures, heating components, wiring, plumbing, roofing or other nonstructural components provided that the cubic content or the footprint of the building or structure as it existed prior to the effective date of this title or subsequent amendment of this title is not increased.
c. A nonconforming building or structure shall not be structurally altered or enlarged in any manner except to bring the structure in conformance with all regulations of the district in which it is located.
d. A nonconforming building or structure shall not be moved in whole or in any part to any other location on the lot or another lot unless every portion of such building or structure is made to conform to all the regulations of the district in which it is or will be located.
e. The nonconforming use of a nonconforming building may be changed to a use permitted within the district in which the building is located upon the approval of a site plan or permitted conditional use permit.
f. Nonconforming accessory uses and structures will be treated under this section subject to the provisions governing the principal nonconforming uses, buildings, and structures set forth in this section.
g. Where nonconforming use status applies to a building and land in combination removal or destruction of the building shall eliminate the nonconforming status of the land.
3. Nonconforming Use Of A Building Or Structure:
a. A nonconforming use of a building or structure lawfully established on or before the effective date of this title, may be continued although it does not conform with the use provisions of this title, except as otherwise provided in this section.
b. Repairs and nonstructural alterations may be made to a building or structure which contains a nonconforming use for ordinary maintenance repairs including internal and external painting, decorating, paneling, and the repair or replacement of doors, windows, nonbearing walls, fixtures, heating components, wiring, plumbing, roofing or other nonstructural components provided that the cubic content or the footprint of the building or structure as it existed prior to the effective date of this title or subsequent amendment of this title is not increased.
c. When a building or structure contains a nonconforming use, structural alterations and additions only are permitted when the use of the entire building or structure is changed to a use which conforms to all of the regulations of the district in which it is located. Exception will be made for single- family residential structures located in nonresidential zones. For those cases, alterations or additions may be made so long as the bulk and setback regulations are met for the zone in which the residential structure is located and no additional dwelling units are constructed. Exception will also be made for existing legal, nonconforming agricultural buildings and structures not located in the agricultural/open space (OS) zoning district. For those cases, the building or structure may be expanded by up to twenty percent (20%) of its current size so long as expansion complies with all standards for the agricultural/open space (OS) zoning district and with all other pertinent codes and regulations existing at the time of expansion.
d. The non-conforming use of a building or structure may be changed to a use of the same classification, a less intense use of the same classification, a use of a different classification which is of the same or lesser intensity, or to a conforming use for the district in which the building or structure is located. Where a nonconforming use of a building or structure is changed thusly, it shall not thereafter be changed to another non-conforming use of a more intense nature in that classification or in any other classification. A request to change a nonconforming use to a use of the same or lesser intensity within the same classification, or to a use of the same or lesser intensity within a different classification will be evaluated by the Director of Development Services and will be allowed if there is no or only a negligible increase in vehicular traffic, no change in the general hours of operation, no increased demand on public services, no known increase in the impact of noise, odor or light on adjacent developed properties, and no enlargement, expansion or material change in the building or structure itself. A material deviation of one or more of these factors as determined by the Director of Development Services will prohibit a non-conforming change in use.
e. A building or structure containing a nonconforming use shall not, in any manner, be extended, expanded, or relocated in whole or in part to any location unless the use of the entire building or structure is changed to a use which conforms to all of the regulations of the district in which it is located. The nonconforming use of a part of a building or structure shall not be expanded within that building or structure.
(1) Except for the provisions in subsection C8 of this section, an exception will be made for single-family residential structures located in nonresidential zones. For those cases, alterations or additions may be made so long as the bulk and setback regulations are met for the zone in which the residential structure is located and no additional dwelling units are constructed.
(2) If a single-family residential structure located in a nonresidential zone is altered or enlarged as provided in subsection C3e(1) of this section, such alteration or enlargement shall exempt adjacent landowners from further buffering requirements for the benefit of the altered or enlarged property.
(3) Except for the provisions in subsection C8 of this section, an exception will be made for existing legal, nonconforming agricultural buildings and structures not located in the Agricultural/Open Space (OS) Zoning District. For those cases, the building or structure may be expanded by up to twenty percent (20%) of its current size so long as expansion complies with all standards for the Agricultural/Open Space (OS) Zoning District and with all other pertinent codes and regulations existing at the time of expansion.
f. In any building or structure where a nonconforming use existed, in whole or part of the building or structure, is discontinued, becomes vacant or otherwise unoccupied for a continuous period of one year or more must thereafter be occupied by a use which conforms to the regulations of the district in which the building or structure is located.
g. Where nonconforming use status applies to a building and land in combination, removal or damage greater than fifty percent (50%) of assessed value of the building shall eliminate the conforming status of the land.
4. Nonconforming Uses Of Land:
a. Nonconforming uses of land where no building is involved, and which use is lawfully established prior to the effective date of this title, may be continued, except as otherwise provided for in this section.
b. Land which contains a nonconforming use, which does not have a building or structure thereon, may be maintained or repaired including gravel, paving, surfacing, fences, screening, or drainageways, provided that the amount of land devoted to such use which lawfully existed as of the effective date of this title, is not increased.
c. A nonconforming use of land shall not, in any manner, be expanded or extended on the same lot. (Ord. 1599, 9-13-2004)
d. If a nonconforming commercial, office, industrial or multi- family use of land or any portion thereof is discontinued for one year or is proposed to be changed, any future or proposed use of such land shall be in conformance with the provisions of this title.
e. Single family detached residential uses in non-single family residential designated areas may be permitted upon application to the Director of Development Services. The Director, or designee, may approve the permit if all of the following criteria are met:
(1) That the applicant provide clear and convincing evidence that a single family residence existed on the parcel any time within the past fifteen (15) years from date of application.
(2) That the parcel is the same size and configuration as when the house existed.
(3) That no subdivision of the parcel is proposed or has been done to create a lot for the residential dwelling.
(4) That the properties immediately adjacent have not been developed in accordance with the current land use and zoning.
(5) That only one single family detached dwelling will be constructed on the parcel.
(6) That the property owner executes an acknowledgement which will be recorded with the respective county and which includes the following provisions:
(A) Legal description provided by the property owner.
(B) That the dwelling will be constructed a minimum of one hundred feet (100') from the parcel's boundaries, including from the ultimate rights-of-way of adjacent streets.
(C) That accessory structures will be set back a minimum of fifty feet (50') from the parcel's boundaries and that no accessory structure will be constructed in the front yard as defined in this title. Two (2) detached accessory structures or less, not to exceed a combined total of one thousand (1,000) square feet regardless of size of the property will be located on the property.
(D) That no buffer will be required between an adjacent property and the subject parcel at time of development of the adjacent properties. If desired, the burden of providing a buffer lies with the property owner of the subject parcel upon which the single family dwelling is constructed.
(E) A note of the Comprehensive Plan land use designation and zoning district of the subject property.
(F) Comprehensive Plan land use designation and zoning district of the adjacent properties is clearly identified.
(G) That if future utility infrastructure is to cross the property, an easement for the utility will be granted if the exact alignment is known. If future utility infrastructure is anticipated to cross the property but the exact alignment is unknown, agreement that an easement for the utility shall be granted at such time the alignment is determined. Acknowledgement that no structures will be constructed within an anticipated easement area.
(H) That development of the property for non-single family residential uses may not occur until the single- family residential use ceases.
(I) That no commercial activity will be allowed on the parcel unless one of the following applies:
(i) A home occupation permit approval is granted for a qualifying activity; or
(ii) With site plan and building permit approval the dwelling is converted to a commercial structure that complies with current codes and regulations, including allowed uses as specified in the Zoning Code for the applicable zoning district.
(J) That the rebuilding and expansion provisions for single-family residential property in non- residential zones of this section applies to the subject parcel.
(K) That the burden lies with the property owner to notify potential buyers of these provisions.
5. Nonconforming Characteristics Of Use:
a. Nonconforming characteristics of use due to changes in zoning provisions including, but not limited to, parking requirements, signs, landscaping, lighting, building materials, buffering, which generally are addressed in development approvals will be addressed at the time a submittal is made to the City for modification to the development.
b. Nonconforming characteristics of use which are in evidence because of failure to comply with the conditions of approval for a development will be subject to Code enforcement actions available to the City to address the nonconformity and bring the development into compliance with this Code or the conditions of its approval.
6. Reconstruction:
a. Where a nonconforming building or structure is damaged or destroyed by catastrophe or act of God to the extent equaling fifty percent (50%) or more of its total assessed value, it shall not be reconstructed except in conformance with the regulations of the district in which it is located.
b. Where an otherwise conforming building or structure containing a nonconforming use is damaged by catastrophe or act of God to the extent equaling fifty percent (50%) or more of its total assessed value, it may be reconstructed to comply with all regulations, including use, of the district in which it is located. An otherwise conforming building or structure containing a nonconforming use damaged to the extent less than fifty percent (50%) of its assessed value may be reconstructed provided that the nonconforming use as it existed prior to the damage is not increased or enlarged and provided that the reconstruction commences within one hundred eighty (180) days of the damaging incident and is diligently pursued to its completion.
c. Except for the provisions in subsection C8 of this section, an exception will be given to single-family detached residential uses in nonresidential districts, where the residential building or detached accessory structure is damaged by catastrophe or act of God. Reconstruction of the structure or building shall be permitted provided that there is no increase in the number of dwelling units. The reconstruction of the building or structure will comply with all residential standards for the comparable district in which the structure or building was first constructed or a comparable residential district, as determined by the director of development services, and with all other pertinent codes and regulations existing at the time of reconstruction. Reconstruction must begin within one hundred eighty (180) days or the use will be deemed discontinued, abandoned, or vacated.
This exception will not be granted when nonaccidental causes, intentional acts by the owner, lessee, or other person such as arson, or by circumstances of neglect where the building runs down or becomes dilapidated are in evidence. The only exception for nonaccidental causes shall be for intentional demolition associated with a building permit to replace the structure with a new structure as provided in subsection C7f of this section.
d. Except for the provisions in subsection C8 of this section, an exception will be given to existing legal, nonconforming agricultural buildings and structures not located in the agricultural/open space (OS) zoning district, where said building or structure is damaged by catastrophe or act of God. Reconstruction of the structure or building shall be permitted provided that the square footage of the structure or building is not enlarged or increased beyond twenty percent (20%) of its predamaged size. The reconstruction of the building or structure will comply with all standards for the agricultural/open space (OS) zoning district and with all other pertinent codes and regulations existing at the time of reconstruction. Reconstruction must begin within one hundred eighty (180) days or the use will be deemed discontinued, abandoned, or vacated.
This exception will not be granted when nonaccidental causes, intentional acts by the owner, lessee, or other person such as arson, or by circumstances of neglect where the building runs down or becomes dilapidated are in evidence. The only exception for nonaccidental causes shall be for intentional demolition associated with a building permit to replace the structure with a new structure as provided in subsection C7e of this section. (Ord. 1869, 6-1-2010)
7. Other Exceptions:
a. Exceptions may be granted upon application of a variance request to the board of adjustment for nonconforming uses to be allowed in structures, buildings or land which were established on or before the effective date of this title, provided that the use is appropriate to the design, special equipment, and intent of such a building or structure; the board is convinced that the use is of benefit and is appropriate to the neighborhood; that the traffic generated is similar or less than that generated by the existing nonconforming use; that the structure, or the structure and land in combination, cannot reasonably or economically be used for a conforming purpose; that the use will not be detrimental to the existing character of development in the immediate neighborhood; that the use will not endanger the public health, safety, or general welfare; and that the use is consistent with the comprehensive plan.
b. For existing legal, nonconforming residential garages which do not conform to current standards regarding side yard setback and/or size only, the nonconforming garage may be rebuilt in a rear yard with the same nonconforming size and/or side yard setback or at a minimum side yard setback of three feet (3'), whichever is greater, within one hundred eighty (180) days of its destruction, provided that the area of nonconformity is not increased and that in all other regards the garage meets accessory structure standards and regulations.
c. For existing nonconforming detached single-family uses, up to two (2) detached accessory structures not to exceed one thousand (1,000) combined square feet may be permitted.
d. The acquisition of a portion of an otherwise conforming lot by the city or by the city for the benefit of a governmental agency under eminent domain proceedings or by agreement under threat of eminent domain proceedings shall not cause such an otherwise conforming lot to become nonconforming under this title.
e. Except for the provisions in subsection C8 of this section, an exception will be given to existing legal, nonconforming agricultural buildings and structures not located in the agricultural/open space (OS) zoning district. Reconstruction or replacement of the structure or building shall be permitted provided that no other nonconformity is increased, and the building square footage is not enlarged or increased by more than twenty percent (20%) of its current size. The reconstruction of the building or structure shall comply with all other standards for the agricultural/open space (OS) zoning district and with all other pertinent codes and regulations existing at the time of reconstruction. Reconstruction must begin within one hundred eighty (180) days or the use will be deemed discontinued, abandoned, or vacated.
f. Except for the provisions in subsection C8 of this section, an exception will be given to existing legal, nonconforming single-family detached residential buildings and detached accessory structures located in nonresidential zoning districts. Reconstruction or replacement of the structure or building shall be permitted provided that there is no increase in the number of dwelling units. The reconstruction of the building or structure shall comply with all residential standards for the comparable district in which the structure or building was first constructed or a comparable residential district, as determined by the director of development services, and with all other pertinent codes and regulations existing at the time of reconstruction. Reconstruction must begin within one hundred eighty (180) days or the use will be deemed discontinued, abandoned, or vacated.
8. Flood (Overlay) District:
a. For any structure or use of a structure or land made nonconforming by the adoption of a flood (overlay) district, such use may be expanded, enlarged, altered or changed in any way which does not increase its nonconformity if:
(1) The structure or use is not nonconforming with respect to any underlying zoning district.
(2) The alteration does not represent an addition or repair exceeding fifty percent (50%) of the value of the structure at the time the structure became nonconforming by virtue of this subsection, unless the structure or use is permanently changed to a conforming use. In the case of the above stated fifty percent (50%) valuation rule such shall be measured on a cumulative basis rather than evaluating each alteration independently against the maximum variation.
(3) Nothing in this subsection shall be construed to prevent normal and necessary maintenance or upkeep of any use made nonconforming by virtue of a Flood (Overlay) District. (Ord. 1599, 9-13-2004; amd. Ord. 1869, 6-1-2010; Ord. 2246, 9-5-2017; amd. Ord. 2475, 6-7-2021; Ord. 2570, 7-5-2023)