Within the districts established by this chapter or amendments that may later be adopted, here exist structures, and uses of land and structures, which were lawful before this chapter was passed or amended, but which would be prohibited, regulated or restricted under the terms of this chapter. These structures, and uses of land and structures, are declared legal nonconformities.

It is the intent of this article to permit these nonconformities until they are removed, but not to encourage their survival. Such uses are declared by this chapter to be incomptatible with permitted uses in the districts involved.

(Ord. No. 801G, § 3, 3-6-06)

(A)

Definition. A nonconforming use is an active and actual use of land or structures, or both; legally established prior to the effective date of this chapter or subsequent applicable amendment thereto which has continued the same use to the present, and which would not be permitted under the current terms of this chapter.

(B)

Continuance of a nonconforming use. Any nonconforming use lawfully existing upon the effective date of this chapter may be continued at the size, intensity and in a manner of operation existing upon such date, except as specified in this section.

(C)

Modification of a nonconforming use. A nonconforming use shall not be expanded, or changed to another nonconforming use.

(D)

Discontinuance of a nonconforming use.

1.

When any nonconforming use of any structure or land is discontinued for a period of 12 months, or is changed into a conforming use, any future use of said structure or land shall be in complete conformity with the provisions of this chapter.

2.

Exception by special use: In the event a legal nonconforming use has been discontinued for more than 12 months, a special use may be granted to allow continuation of that use pursuant to § 150.904, subject to the following conditions:

(a)

A special use to allow the continuance or reintroduction of a legal nonconforming use following a 12-month or more discontinuance of the use may only be granted for properties within the neighborhood business, planned business or general business districts.

(b)

The special use may only be granted if there has been no other intervening use of the property from the date the nonconforming use was discontinued.

(c)

The special use may only be granted if the application for special use is filed no more than 36 months after discontinuance of the nonconforming use.

(d)

The special use may only be granted if the nonconforming use is a permitted use (either by right or by special use) within the neighborhood business, planned business or general business districts.

(E)

Maintenance of a nonconforming use. The normal maintenance of a structure or land containing or related to a nonconforming use is permitted, including necessary repairs and incidental alterations which do not exacerbate the adverse impacts of the nonconforming use in relation to the purpose of this chapter. In no instance shall said repairs exceed over the life of the structure, 50 percent of the present fair market value as identified in the county assessment records of said structure or property prior to said repairs. Any nonconforming use in which repairs exceed the 50 percent fair market value as identified in the county assessment records shall be immediately discontinued and all future uses shall comply with this chapter.

(F)

Reconstruction of two-family dwellings in areas formerly zoned D or D-1. A legal, non-conforming two-family structure which is destroyed by fire, tornado or other natural disaster may apply for consideration as a special use to allow the reconstruction of the nonconforming structure. Any such structure shall only be reconstructed so as not to expand the floor area or footprint of the structure, if said structure is located in an area which was zoned to permit two-family dwellings on the day preceding the effective date of the ordinance.

(G)

Reconstruction of a single family dwelling in the CB, central business district. The owner of a legal, non-conforming single family residential structure (the structure), which was in existence prior to April 16, 1956, and is located, at the time of application for a special use under this section, in the CB, Central Business District, may apply for consideration as a special use to allow the continued existence or reconstruction of the structure, if damaged or destroyed. Any such structure shall only be reconstructed so as to not expand the floor area or footprint of the damaged or destroyed structure.

(Ord. of 3-6-06; Ord. of 848G, § 1, 9-5-06; Ord. No. 255H, § 1, 6-1-15; Ord. No. 421H, § 1, 9-4-18)

After the effective date of this chapter, any enlargement, expansion or extension of a nonconforming development must be developed in compliance with the provisions of article 3 unless a variance is granted by the planning and zoning commission per the requirements of §150.909.

Rationale: The adoption of the provisions of this section ensures that developments approved prior to the adoption of this chapter do not encounter difficulty in transferring ownership because they would otherwise be considered nonconforming. Typical examples of nonconforming developments include: exceeding the floor area ratio, not meeting the paved area setbacks, not meeting the landscape surface ratios, etc.

(Ord. No. 801G, § 3, 3-6-06)

(A)

Upon and after the effective date of this chapter, no lot shall be created which does not meet the minimum zoning district area requirements of each zoning district or the minimum lot area requirements of each zoning district or which does not meet the lot dimension requirements of each zoning district.

(Ord. No. 801G, § 3, 3-6-06)

(A)

Nonconforming structure and building regulations are also regulated under the city's building code. The standards set forth in this chapter are intended to be complementary to those in the building code. Where there is overlap or conflict between the two chapters, the more restrictive of the two shall apply.

(B)

Any structure or building lawfully existing upon the effective date of this chapter may be continued at the size and in a manner of operation existing upon such date, except as hereafter specified.

(C)

Nothing in this chapter shall preclude the building inspector from remedial or enforcement actions when said structure or building is declared unsafe.

(D)

When any lawful nonconforming structure or building in any district is modified so as to be in conformance with the provisions of this chapter, any future modification of said structure or building shall be in conformance with the provisions of this chapter.

(E)

Whenever a lawful nonconforming structure or building has been damaged by fire, flood, wind, explosion, earthquake, war, riot, unlawful act, or act of God, it may be reconstructed and used as before if it be reconstructed within one year after such calamity, unless the damage to said structure or building equals or exceeds 50 percent of its fair market value as identified in the county assessment records at the time of damage, as determined by the building inspector.

(F)

Normal maintenance of a nonconforming structure or building is permitted, including necessary nonstructural repairs (e.g. painting, siding, replacing appliances, etc.) and incidental alterations that do not extend, enlarge, or intensify the nonconforming structure or building.

(G)

Alterations may be made to a building containing lawful nonconforming residential units, provided such alterations do not increase the number of dwelling units or the bulk of the building, except that a conforming garage may be added if none previously existed. However, after the effective date of this chapter, any enlargement, expansion or extension of a nonconforming structure must be built in compliance with the provisions of this chapter.

Any structure or building for which a building permit has been lawfully granted prior to the effective date of this chapter, which will become nonconforming under the provisions of this chapter or amendments thereto, may be completed in accordance with the approved plans, provided construction is started within 365 calendar days of the effective date of this chapter, and provided that construction is completed within 730 calendar days of the effective date of this chapter or amendments thereto. Said structure or building shall thereafter be a legal nonconforming structure or building.

(H)

If a structure containing a nonconforming use in a residential district is destroyed by any means, resulting in a loss of the legal nonconforming status, the owner of the property may petition for a special use to reconstruct the structure. Any such special use shall comply with all procedural requirements governing special uses and shall be granted only by the city council where the city council finds that because of the structure and property's location or unique situation, the structure should be allowed to be rebuilt and that the proposed structure and use will not be injurious to the public health, safety and welfare and will not conflict with the spirit and intent of this chapter. The structural design, site plan and building plan shall be submitted for review and approval by the city at the time of application for the special use. The proposed plans shall not increase the nonconforming nature of the prior structure and shall, upon approval by the city council, become a condition of the special use permit.

(I)

A structure or building that is nonconforming due to lot area or lot width may be rebuilt, remodeled, expanded out, or enlarged provided the change meets the other bulk requirements of this chapter for the district in which it is located.

(Ord. of 3-6-06; Ord. No. 848G, § 1, 9-5-06; Ord. No. 880G, § 1, 1-2-07; Ord. No. 24H, § 13, 9-8-09)