Auburn City Zoning Code
ARTICLE VII
Nonconformities
§ 305-86 General guidelines.
A.
Purpose. This article regulates and limits the continued existence of uses, structures, and lots established prior to the effective date of this chapter which do not conform to the regulations of this chapter applicable in the zoning districts in which such nonconformities are located.
§ 305-87 Nonconforming use.
A.
Continuance. Except as provided in this article, any lawfully existing nonconforming use located in a structure designed for a use permitted in the district in which it is located, or not involving the use of a structure, or involving only a structure which is accessory to a nonconforming use of land may be continued so long as it remains otherwise lawful, subject to the regulations contained herein.
B.
Extension or enlargement.
(1)
A nonconforming use existing at the date of adoption of this chapter may not be extended or enlarged except by special use permit.
(2)
A nonconforming structure or use may not be extended or enlarged to other structures or land acquired subsequent to the date of adoption of this chapter.
(3)
No special use permit allowing the extension or enlargement of a nonconforming use shall be granted by the Planning Board unless the regulations of this chapter, other than allowed uses for the district in which said nonconforming use is located, can be complied with. The Planning Board may impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such proposed conditions shall be consistent with the spirit and intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such approval may have on the neighborhood of the property.
C.
Changes.
(1)
No structure designed for a permitted use and devoted in whole or in part to a nonconforming use shall be structurally altered unless the use thereof shall thereafter conform to the use regulations of the zoning district in which it is located. No such alteration shall create any new parking, yard or space and bulk nonconformity nor increase the degree of any existing parking, yard or space and bulk nonconformity of such structure.
(2)
A nonconforming use of land not involving a structure or involving only a structure which is accessory to the nonconforming use of land, or a nonconforming use in a structure designed for a use permitted in the district in which it is located, shall not be changed to any use other than a use permitted in the zoning district in which the structure is located.
(a)
When such a nonconforming use has been changed to a permitted use, it shall not thereafter be changed back to any nonpermitted use. For purposes of this subsection, a use shall be deemed to have been so changed when an existing nonconforming use shall have been terminated and a permitted use shall have commenced and continued for a period of seven days. Any change of use in violation of this subsection shall be deemed to be an abandonment of the lawfully existing nonconforming use.
D.
Discontinuance.
(1)
When a nonconforming use has been discontinued for a period of six consecutive months (from a date determined by the Planning Department or Code Enforcement Officer), such a nonconforming use shall not be reestablished and any subsequent use of such structure or land shall be in conformity with the provisions of this chapter for the district in which such structure or land is located.
(2)
Any period of such discontinuance caused by government action, strikes, material shortages or acts of God, and without any contributing fault by the nonconforming user, shall not be considered in calculating the length of discontinuance for purposes of this section.
E.
Repair and restoration.
(1)
Normal maintenance and incidental repair or replacement, and installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring or plumbing, may be performed on any structure that is designed for a permitted use but devoted in whole or in part to a nonconforming use; provided, however, that this subsection shall not be deemed to authorize any violation of this section.
(2)
In the event that any structure designed for a permitted use and devoted in whole or in part to a nonconforming use is damaged or destroyed, by any means, to the extent of more than 50% of the cost of replacement of the structure new, such structure shall not be restored unless the use of such structure shall thereafter conform to the use regulations of the zoning district in which it is located and unless such restoration is accomplished without creating any new parking, yard or space and bulk nonconformity or increasing the degree of any parking, yard or space and bulk nonconformity existing prior to such damage or destruction.
(3)
Where any such structure is damaged or destroyed by any means not within the control of the owner thereof to the extent of 50% or less of the cost of replacement of the structure new, repair or restoration of such structure may be made; provided, however, that no repairs or restorations shall be made which would create any new parking, yard or space and bulk nonconformity or increase the degree of any parking, yard or space and bulk nonconformity existing prior to such damage or destruction, nor shall any repairs or restoration except in conformity with the applicable zoning district regulations be made unless a building permit is obtained and restoration is actually begun within one year after the date of such partial damage or destruction and is diligently pursued to completion.
(a)
Exception for a single-family dwelling. Where a single-family dwelling is damaged or destroyed by any means not within the control of the owner thereof to the extent of 100% of the cost of replacement of the structure new, repair or restoration of such structure may be made; provided, however, that no repairs or restorations shall be made which would create any new parking, yard or space and bulk nonconformity or increase the degree of any parking, yard or space and bulk nonconformity existing prior to such damage or destruction, nor shall any repairs or restoration except in conformity with the applicable zoning district regulations be made unless a building permit is obtained and restoration is actually begun within one year after the date of such partial damage or destruction and is diligently pursued to completion.
§ 305-88 Nonconforming structures.
A.
Continuance. Any nonconforming structure which is devoted to a use which is permitted in the zoning district in which it is located may be continued so long as it remains otherwise lawful, subject to the restrictions in Subsections B through D of this section and Article VII, § 305-91, Certificate of nonconformity.
B.
Expansion. Any nonconforming structure may be enlarged, maintained, repaired or altered; provided, however, that no such enlargement, maintenance, repair or alteration shall either create any additional nonconformity or increase the degree of the existing nonconformity of all or any part of such structure.
C.
Additions, alterations, maintenance, and repairs.
(2)
Should a nonconforming structure be moved for any reason, its placement or use shall thereafter conform to the regulations for the district into which it is relocated.
(3)
A nonconforming structure is required to be maintained in accordance with all applicable laws, ordinances, rules and regulations.
D.
Damage or destruction.
(1)
In the event that any part of a nonconforming structure which contributed to its nonconformity is damaged or destroyed, by any means, to the extent of more than 75% of the cost of replacement of said part new, such part shall not be restored unless it shall thereafter conform to the regulations of the zoning district in which it is located.
(2)
When such a part of a nonconforming structure is damaged or destroyed, by any means, to the extent of 75% or less of the cost of replacement of such part new, no repairs or restoration except in conformity with the applicable zoning district regulations shall be made unless a building permit is obtained and restoration is actually begun within one year after the date of such partial destruction and is diligently pursued to completion.
E.
Moving.
(1)
No nonconforming structure shall be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved.
F.
Discontinuance.
(1)
A nonconforming structure, or portion thereof, shall be deemed discontinued if the structure is vacant for six consecutive months or sooner if there is a clear manifestation of the intent on the part of the owner to abandon the nonconforming structure.
(2)
If deemed discontinued, such nonconforming structure shall not be reestablished, and any subsequent use shall conform with the provisions of the district in which such structure is located.
§ 305-89 Nonconforming lots of record.
A.
General regulations. A lot of record may be considered as complying with the minimum requirements of this chapter provided that such lot does not adjoin other land held by the same owner, part of which such other land could be combined with the nonconforming lot of record to create a conforming lot without thereby creating a new nonconforming lot.
§ 305-90 Exception for repairs pursuant to public order.
A.
Purpose. Nothing in this article shall be deemed to prevent the strengthening or restoration to a safe condition of a structure in accordance with an order of a public official who is charged with protecting the public safety and who declares such structure to be unsafe and orders its restoration to a safe condition, provided that such restoration is not otherwise in violation of the various provisions of this article prohibiting the repair or restoration of partially damaged or destroyed structures or signs.
§ 305-91 Certificate of nonconformity.
A.
Burden of owner to establish legality of nonconformity.
(1)
The burden of establishing that any nonconformity is lawfully existing under the provisions of this article shall, in all cases, be upon the owner of such nonconformity and not upon the City.
(2)
The owner of any nonconformity may at any time apply to the Code Enforcement Officer for a certificate of nonconformity to establish the legality of nonconformity as of a specified date. Such application shall contain such information as may be required by the Code Enforcement Officer as necessary to establish the legality of a particular nonconformity.
(3)
If, upon reviewing an application for a certificate of nonconformity, the Code Enforcement Officer shall determine that the use, structure or sign in question was lawfully existing at the time of the adoption of the provision creating the nonconformity in question and remains lawfully existing subject only to such nonconformity at the time of such application, and that any required affidavit is in order, he/she shall issue a certificate evidencing such facts and setting forth the nature and extent of the nonconformity and the date, if any, upon which such nonconformity is required to be terminated; otherwise he/she shall decline to issue such certificate and shall declare such building, structure or sign to be in violation of this chapter.
§ 305-92 General nuisances.
A.
General regulations. Upon a complaint registered with the Code Enforcement Officer by 50% of the property owners within 200 feet of a nonconforming use and which is considered to be a general nuisance or a hazard to the health, safety, welfare and morals or to the uses or structures adjoining such nonconforming use or uses, the Board of Appeals shall hold a public hearing and make a finding with respect to the nuisance or hazardous condition which exists and shall determine the necessity of terminating such nonconforming use. Such uses shall be terminated within such reasonable time as shall be determined by the Board of Appeals as related to the reasonable amortization of the capital investment in such uses.