Within the districts established by this part or amendments that may later be adopted, there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before the ordinance was passed or amended but which would be prohibited, regulated or restricted under the terms of this part or future amendment.

(1)

It is the intent of this chapter to require removal or cessation of certain of these nonconformities, and to permit others to continue until they are otherwise removed or ceased. It is further the intent of this chapter that nonconformities shall not be used as grounds for adding other structures or uses prohibited elsewhere in the same district, nor enlarged upon, extended or expanded except as herein provided.

(2)

Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the districts involved. Nonconforming use of land, structures, or land and structures in combination shall not be extended or enlarged after passage of this chapter by attachment on a building or premises of signs intended to be seen from off the premises, or by addition of other uses, of a nature generally prohibited in the district involved.

(3)

To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which construction was lawfully begun prior to the effective date of adoption or amendment of this chapter, and upon which actual building construction has been carried on diligently. "Actual construction" is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction provided that work shall be carried on diligently.

(Code 1977, § 16-24.001)

(1)

Where lots of record at the time of passage or amendment of this chapter are below the minimum dimensions established by such regulations, regulations and requirements applying thereto shall be as provided below. In cases where land is taken for public purposes from legal lots of record at the time of such taking, the lots remaining shall also be construed as nonconforming.

(2)

Single Lots of Record: In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory building may be built on any single lot of record at the effect date of adoption or amendment of this chapter, notwithstanding limitations imposed by other provisions of these regulations. Variance of yard requirements in such cases shall be obtained only through variance action of the board of zoning adjustment.

(Code 1977, § 16-24.002)

Where at the time of passage of this chapter or amendment thereto lawful use of land exists which would not be permitted by the regulations imposed by this part and where such use involves no permanent individual structure with a fixed foundation and with a replacement cost exceeding $5000, the use may be continued for a period of not more than two (2) years after the effective date, of this chapter or amendment thereto creating nonconforming status so long as it remains otherwise lawful, provided:

(1)

No such nonconforming use of land or land with minor structures shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this chapter.

(2)

No such nonconforming use shall be moved in whole or in part into any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this chapter.

(3)

If any such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of land shall conform to the regulations specified by this chapter for the district in which such land is located.

(4)

No additional structure not conforming to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

(5)

At the end of the above-prescribed two-year period, the nonconforming use of land shall cease and the nonconforming use of any minor structures as defined above shall cease, and the land or land and minor structures in combination shall thereafter be used for purposes permitted in the district in which they are located.

(Code 1977, § 16-24.003)

Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter by reasons of restriction on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it is and remains otherwise lawful subject to the following provisions:

(1)

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity; but any structure or portion thereof may be enlarged or altered if the degree of its nonconformity remains the same or is decreased, provided such structure is used for a permitted use.

(2)

(a)
One- and two-family residential structures: Should such nonconforming one- or two-family residential structure or nonconforming portion of structure be destroyed, by any means, in whole or in part, it may be reconstructed in the same location and upon its previous foundation and to its previously existing height, provided said reconstruction does not increase the previously existing degree of nonconformity and further provided that said reconstructed structure is used for a permitted use.

(b)

All other structures: Should such nonconforming multi-family residential, commercial or industrial structure or nonconforming portion of structure be destroyed by any means to an extent of more than 60 percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this chapter.

(c)

Accessory structures: When nonconforming, shall be subject to the same provisions as govern the primary structure to which they are an accessory.

(3)

Moving: A nonconforming structure may be moved on its own lot only if the administrative official determines that such movement reduces the degree of nonconformity to the maximum extent reasonably feasible, or eliminates such nonconformity, but shall in no case be moved on its own lot in such a manner as to increase the degree of nonconformity.

Where a nonconforming structure is moved off its previous lot, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

Nothing contained herein shall prevent the strengthening or restoring to safe condition of any structure or part thereof declared unsafe by any public official charged with protecting the public safety, upon order of such official.

(4)

[Reducing of yards:] In cases where land is taken for public purposes from legal lots of record at the time of such taking in such manner as to reduce yards previously provided in relation to a portion of a structure below yard requirements generally applicable within the district, the portion of the structure involved shall be construed to be nonconforming.

(5)

Removal of abandoned antennas: Any antenna that is not operated for a continuous period of one year shall be considered abandoned, and the owner of such antenna shall remove same within 90 days of receipt of notice from the bureau of buildings about such abandonment. If such antenna is not removed within said 90 days, the city may, in the manner provided in sections 41-2-8 through 41-2-17 of the Official Code of Georgia, remove such antenna at the owner's expense. If there are two or more users of a single antenna, then this provision shall not become effective until all users cease using the antenna.

(6)

Limited nonconforming side yard expansions allowed:

(a)

In the R-4, R-4A, R-4B and R-5 zoning districts, vertical additions and renovations to existing single-family structures and accessory structures with non-conforming side yard setbacks are authorized within such nonconforming side yards provided:

(i)

Such additions and renovations shall not exceed the existing degree of horizontal setback nonconformity along the length of the nonconforming structure; and

(ii)

Such additions and renovations within the nonconforming area shall not exceed the maximum building height allowed in the applicable zoning district minus the distance of the existing side yard nonconformity. For example, if an existing single-family structure encroaches into the required side yard setback by four feet, any vertical addition or renovation will be limited to a maximum height of 31 feet, which is the allowed maximum height (35 feet) minus the existing nonconformity (four feet).

(iii)

This provision shall be applied only to additions and renovations to existing nonconforming single-family structures and accessory structures within the referenced zoning districts. New structures shall comply with the side yard setbacks required in the applicable zoning district.

(Code 1977, § 16-24.004; Ord. No. 1997-06, § 1, 2-10-97; Ord. No. 2019-09(18-O-1581), § 8.1, 1-31-19)

If lawful use involving individual structures with a replacement cost of $5000 or more, or of structures and premises in combination, exists at the effective date of adoption or amendment of this chapter that would not be allowed in the district under the terms of this chapter, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended or moved, except in changing the use of a structure to a use permitted in the district in which it is located.

(a)

Intent: Although the general intent not to permit expansion of nonconformities set forth in section 16-24.001 is reaffirmed, where indefinite continuation of nonconforming uses in major permanent structures with fixed foundations and with replacement costs exceeding $5000 seems assured, it is hereby found to be adverse to the general public interest to require that such uses remain in mislocated buildings, or to prohibit enclosure of existing outdoor sales, service or storage operations.

(b)

Special exception authorized: The board of zoning adjustment may, therefore, by special exception, permit enlargement, extension or moving on the same lot, subject to general requirements and procedures applying to special exceptions and with the following special requirements, limitations and considerations. No such special exception shall be issued on locations and for classes of cases indicated in section 16-24.003.

(c)

Materials to be submitted with application: Applications shall be accompanied by site and building plans, photographs of the property and of surrounding property, evidence of continued use, extent of present outdoor sales, service or storage operations, and such other material as may be appropriate in the circumstances of the case. During processing of the application, additional information reasonably necessary to the making of required findings may be called for and shall be provided before decisions are made.

(d)

Limitations on extension or expansion: Floor area shall not be increased except to provide for interior sales, service or storage operations replacing existing outdoor sales, storage or service; and outdoor sales, storage or service thus replaced shall not be resumed in the future. In no case shall floor area be increased by more than 35 percent of that existing at the time the use became nonconforming. No floor area increase shall be permitted which is likely to have the effect of intensifying the nonconforming use by increasing traffic, number of customers or employees, or other means. At nonconforming service stations, no floor area increase shall be permitted which would allow total floor area to exceed 2000 square feet.

(e)

Screening: Where the lot adjoins or abuts a lot in a residential district directly or with an intervening alley (but not with an intervening street), a solid screening fence or wall not less than six (6) nor more than eight (8) feet in height, or approved vegetative screening, shall be provided and maintained in good condition and appearance; except that such screening shall not be located in required yards adjacent to streets or where it could interfere with visibility at intersections or traffic ways.

(f)

Access, parking and service area: Before such special exceptions are granted, the board shall seek the advice of appropriate city agencies or officials concerning adequacy of design, scale, location and improvement of existing access and parking and service areas, and shall require correction of any deficiencies it finds to be of substantial significance as a condition to the granting of the exception.

(g)

Signs, lighting of premises: Where such special exceptions are granted, limitations appropriate to the nature of the surrounding area shall be placed on the number, size, character and location of signs and the nature of lighting of signs and premises. Such limitations may require removal, redesign and/or relocation of existing signs and lighting.

(h)

Hours and conditions of operation: As a condition to the granting of the special exception, the board may establish such limitations on hours and conditions of operations as it finds reasonably necessary to protect the safety, security, comfort and tranquility of the area, and particularly of nearby residential uses.

(i)

Findings required: No such special exception shall be granted except upon findings by the board that the nonconforming use has continued and is likely to continue indefinitely, and that the actions proposed in the application as submitted, and with the conditions and safeguards attached and accepted by the applicant, would result in substantial reduction of existing adverse effects on surrounding property and/or in other substantial public advantage.

(2)

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such building.

(3)

Changes in nonconforming uses of major structures or of major structures and uses in combination shall be permitted as follows:

(a)

To any use conforming to the regulations of the district in which located; or

(b)

To any use permitted in the most restrictive district in which such original nonconforming use is first permitted by this part, subject to the requirements and regulations concerning such use in the district; provided however, that no nonconforming nonresidential use shall be changed to a residential use in any district in which similar residential uses are not permitted.

(4)

Any major structure, or major structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the districting in which it located; and the nonconforming use may not thereafter be resumed.

(5)

When a nonconforming use of a major structure or major structure and premises in combination is discontinued for a continuous period of one (1) year, the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located. Such restriction shall not apply if such cessation is as a direct result of governmental action impeding access to the premises.

(6)

Where nonconforming use status applies to a major structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. "Destruction," for the purpose of this subsection, is defined as damage to an extent of more than 60 percent of the replacement cost at the time of destruction.

(a)

Where damage is to an extent 60 percent or less of replacement cost, such structures may be restored to the same or lesser size in the same location; provided however, that restoration shall begin within 12 months of damage and be diligently carried to completion; and nonconforming use may be resumed and continued as before, or on a lesser scale, but shall not be enlarged or intensified. Unless restoration is so initiated and completed, the use shall terminate and not be resumed. Remodeling shall not be deemed removal or destruction. Destruction made necessary by repairs, maintenance and/or remodeling shall not be construed to be removal or destruction.

(b)

Special exception for replacement or reconstruction of destroyed major structures containing nonconforming uses: Where a major structure containing a nonconforming use is destroyed to an extent of more than 60 percent of replacement cost at time of destruction, the board of zoning adjustment may, by special exception, permit its replacement or reconstruction in whole or in part upon making all of the following findings:

(i)

That the cause of destruction was not the deliberate action of the owner or occupant of the structure or their agents; and

(ii)

That nothing contained in the provisions of section 16-24.003 required termination of such nonconforming use; and

(iii)

That the board finds substantial public advantage in continuance of the nonconforming use; and

(iv)

That the primary purpose of continuing the nonconforming use is not to continue a monopoly; and

(v)

That replacement or reconstruction in the manner proposed, with related actions imposed in conditions and safeguards by the board, would reduce any previous adverse effects of the use on neighboring properties.

(7)

Special exception for the expansion of nonconforming residential uses in the r-4 and r-5 residential districts.

(a)

The board of zoning adjustment may, by special exception, permit the enlargement, extension or moving on the same lot of a structure containing a nonconforming multi-family use in an R-4 or R-5 residential district or the enlargement, extension or moving on the same lot of a structure containing a nonconforming two-family use in an R-4 residential district, upon making all of the findings set forth in this subsection (7)(a), (i) through (v) below, each of which shall specifically be made a part of the record of such special exception proceedings. With respect to each such required finding, the burden of proof shall be on the person asserting an entitlement to the nonconforming use to show, by clear and convincing evidence, his or her entitlement to a nonconforming use, the continuous maintenance of such use, and the substantial likelihood that such use will continue indefinitely. In order to grant any such special exception, the board must find that:

(i)

The total number of residential units and bedrooms on the subject property remains the same or is decreased; and

(ii)

Any proposed floor area increase shall not intensify the nonconforming use by increasing traffic, use of on-street or off-street parking, number of residents or by other means; and

(iii)

The height and scale of the buildings resulting from the proposed expansion is in character with adjoining buildings in the neighborhood; and

(iv)

The total coverage of the lot resulting from the proposed expansion is consistent with the character of other homes in the neighborhood; and

(v)

The nonconforming use has continued and is likely to continue indefinitely, and the actions proposed in the application as submitted, and with the conditions and safeguards attached and accepted by the applicant, would not adversely affect surrounding properties.

(b)

Before any such special exception is granted and in addition to the requirements of paragraph (a) of this subsection (7), the board shall seek the advice of appropriate city agencies or officials concerning the adequacy of design, scale, location and improvement of existing access and parking and shall require correction of any deficiencies it finds to be of significance as a condition to the granting of any such special exception.

(c)

Where the enlargement, extension or movement on the lot would otherwise require the granting of a variance application, nothing in the provisions of paragraph (a) of this subsection (7) shall be construed as relieving the special exception applicant from the necessity of also obtaining the requisite variance or variances otherwise necessary.

(d)

Any nonconforming multi-family residential structure in an R-4 or R-5 district, including any nonconforming duplex in an R-4 residential district or structure and land in combination in an R-4 or R-5 residential district in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district in which it is located and the nonconforming use may not thereafter be resumed.

(e)

When the use of any portion of a nonconforming multi-family residential structure in an R-4 or R-5 district or a nonconforming duplex in an R-4 district is discontinued for a continuous period of 12 months, the structure, or structure and premises in combination shall not thereafter be used except in conformity with the regulations of the district in which it is located.

(f)

That the provisions of this section 16-24.005 be and shall be deemed to apply with full force and effect to any nonconforming multi-family residential structure in an R-4 or R-5 district, including any nonconforming duplex in an R-4 residential district or structure and land in combination in an R-4 or R-5 residential district.

(g)

In connection with any request for a special exception filed pursuant to the provisions of this subsection, the applicant shall identify and file as an exhibit to said application for special exception any and all special exception applications, variance applications, and building permits previously sought by or on behalf of the applicant or a person controlled by the applicant with respect to the subject property, whether or not such application(s) or permit(s) have been approved or granted.

(8)

Provisions for certain existing multifamily uses and buildings in R-3 through R-5, RG, and MR districts.

(a)

The purpose and intent of the following provisions is to allow for the continued existence of certain nonconforming multifamily uses and buildings in combination, whether or not such buildings are currently in use or have been discontinued for a continuous period of one year or more, in order to encourage diverse housing options that have existed for some period of time as well as to provide a range of housing opportunities. Due to their importance to the public health and welfare, these provisions shall apply notwithstanding other contrary provisions elsewhere in chapter 24.

(b)

The provisions of this section shall apply only to existing nonconforming multifamily uses and buildings in combination that meet each of the following criteria:

(i)

Contain no less than four and no more than 12 dwelling units;

(ii)

Have not been renovated and used in compliance with the existing zoning district's density or maximum dwelling unit requirements as regulated by section 16-24.005(4) above;

(iii)

Were constructed and used for multifamily uses prior to 1946;

(iv)

Are located in the R-3 through R-5, RG, or MR zoning districts; and

(v)

Contain no non-residential uses.

(c)

Each of the following provisions shall apply to existing nonconforming multifamily uses and buildings in combination that meet all of the qualifications in subsection 16-24.005(8)(b) above:

(i)

The one-year non-use requirements of section 16-24.005(5) shall not apply;

(ii)

Required on-site parking shall be equal to or less than the number of spaces originally provided for the building;

(iii)

Renovation of the building shall be authorized provided there is no increase in total existing: square footage; FAR; building footprint; exterior wall locations; height; or total number of units;

(iv)

Buildings that are unintentionally damaged by acts of nature, accidental fire, flooding, and similar events, in an amount that is 60 percent or less of the building's replacement cost, may be renovated provided there is no increase in the total square footage, FAR, building footprint, exterior wall locations, height or total number of units that existed immediately prior to such damage; and

(v)

Buildings that are intentionally damaged or destroyed, and buildings that are unintentionally damaged or destroyed in an amount that is more than 60 percent of the building's replacement cost, shall lose their nonconforming status, provided that this subsection (c)(v) shall not apply to renovations authorized in subsection (c)(iii) above.

(Code 1977, § 16-24.005; Ord. No. 2019-09(18-O-1581), § 6.H, 1-31-19)

(a)

If accessory characteristics of use, such as off-street parking and loading, lighting, or other matters pertaining to the use of land, structures or premises are made nonconforming by this chapter as passed or amended, no change shall be made which increases the degree of nonconformity with the requirements of this chapter; but changes may be made which result in the same or a lesser degree of nonconformity. In cases where land is taken for public purposes in such a manner as to reduce off-street parking or loading space below that previously existing and required by the regulations for the district, the deficiency thus created shall be construed as a nonconforming characteristic of use.

(b)

The parking requirements for a business that is to be operated with a license for the consumption of malt beverages, wine and/or distilled spirits, shall not be based on the continuation of non-conforming off-street parking arrangements for any eating and drinking establishment that has previously operated at that location unless there has been a valid license for on-premises consumption of the same type as that under consideration, in operation at that location within the previous 12 months.

(Code 1977, § 16-24.006; Ord. No. 2005-41(06-O-0381), § 1, 7-12-05)

Except as otherwise provided herein, any use which is permissible by special use permit or special exception in a district shall not be considered a nonconforming use in the district if in lawful existence prior to passage of the requirement for such special permit or special exception, but shall without further action be considered a conforming use. So long as such use remains the same, structural alterations within the general limits of the regulations of this chapter shall be permitted on the premises of such use; but any enlargement, extension, movement or replacement of such use, with respect to land or structures, shall require a special exception or special use permit, as appropriate to the case, as though it were a new use.

(Code 1977, § 16-24.007)

The measurement of floor area to determine whether an addition or renovation to a residential structure exceeds the floor area ratio allowed in the R-1 through R-5 districts shall not include the basement and attic space of structures which were constructed or which will be constructed pursuant to a valid building permit properly applied for prior to the effective date of the adoption of this section provided:

(1)

The renovation of an existing basement or the addition of any basement space does not (i) expand the footprint of the existing structure; or (ii) expose existing walls that are more than four feet below existing grade for more than 50 percent of the total exterior perimeter walls to be exposed.

(2)

The renovation or addition of attic space shall be a design which does not either:

(a)

Increase the existing height of the highest point or main ridgeline of the main roof structure of the highest story; or

(b)

Provide new dormers that (i) engage the main ridge line of the main roof structure; or (ii) interrupt the primary eave line; or (iii) occupy more than 40 percent of the total surface area of the roof plane on which it is constructed.

(Ord. No. 2007-48(07-O-0642), § 5, 8-23-07)