(a)

Intent. Within the districts established by this ordinance or amendments thereto that may exist:

(1)

Lots;

(2)

Structures;

(3)

Uses of land and structures; and

(4)

Characteristics of use;

which were lawful before this ordinance was passed or amended, but uses which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments, it is the intent of this ordinance to permit those nonconforming uses to continue until they are removed, but not to encourage their survival. Any nonconforming use which is discontinued or remains vacant with an intent to be discontinued for a period of six (6) months shall be considered to have been abandoned and all nonconforming rights shall cease. The determination of discontinued use or vacancy shall be by the Building Official. It is further the intent of this ordinance that nonconforming uses shall not be enlarged, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Nonconforming uses shall be defined herein as the use of the lots, land, structures and premises, as well as characteristics of use, which do not conform to this ordinance or future amendments either as to permitted uses, lot dimension(s), setbacks, or other supplementary regulations contained herein. Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. A nonconforming use of a structure, or of land, or of structure and land in combination shall not be extended or enlarged after passage of this ordinance without the approval of the Zoning Board of Adjustment.

To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in plans, construction, or designated use of any building on which actual construction was lawfully begun or construction plans were approved prior to the effective date of adoption or amendment of this ordinance and upon which actual building construction had 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. Construction plans will continue to be deemed approved for a six (6) month period following passage of this ordinance. In order to remain approved, actual construction must be completed within one (1) year.

(b)

Nonconforming Lots of Record. In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record on the effective date of adoption or amendment of this ordinance, notwithstanding limitations imposed by other provisions of this ordinance. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area, width, or depth, any or all, that are generally applicable in such district, provided that yard dimensions and requirements, other than those applying to area, width, or depth, any or all, of the lot shall conform to the regulations of GR district. Variance from yard requirements shall be obtained only through action of the Zoning Board of Adjustment.

If two (2) or more lots or combination of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this ordinance, and if all or part of the lots do not meet the requirements established for lot area and width, the land involved shall be considered to be an undivided parcel for the purpose of this ordinance, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot area and width requirements established by this ordinance, nor shall any division of any parcel be made which creates a lot with area or width below the requirements established herein.

(c)

Nonconforming Uses of Land or of Land with Minor Structures Only. Where, at the time of passage of this ordinance, lawful use of land exists which would not be permitted by the regulations imposed by this ordinance, and where such use involves no individual structure with a replacement cost exceeding one thousand dollars ($1,000.00), the use may be continued as long as it remains otherwise lawful, provided:

(1)

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied on the effective date of adoption or amendment of this ordinance;

(2)

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use on the effective date of adoption or amendment of this ordinance;

(3)

If any such nonconforming use of land ceases, then any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which the land is located;

(4)

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

(d)

Nonconforming Use of Structures. Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms hereof by reason of restrictions, area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued as long as it remains otherwise lawful, subject to the following provisions:

(1)

No such nonconforming structure may be enlarged or altered in a manner which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

(2)

Should such nonconforming structure or nonconforming portion of structure be destroyed by any means to an extent of more than fifty percent (50%) of its replacement cost at the time of such destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.

(3)

Should any such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved. Notwithstanding the foregoing, existing multifamily dwelling developments may be rebuilt in the event of any such damage or destruction, at the same unit per acre density that existed prior to such damage or destruction.

(e)

Nonconforming Uses of structures or of Structures and Premises in Combination. If lawful use involving individual structures with a replacement cost of one thousand dollars ($1,000.00) or more, or of structure and premises in combination, exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued as long as it remains otherwise lawful, subject to the following provisions:

(1)

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

(2)

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

(f)

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations of the district, and the nonconforming use may not thereafter be resumed.

(a)

RESERVED.

(b)

RESERVED.

(c)

AUTHORITY OF THE BOARD.

(1)

The [Zoning] Board of Adjustment may:

a.

Hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this ordinance;

b.

Hear and decide special exceptions to the terms of this Zoning Ordinance when the ordinance requires the Board to do so;

c.

Authorize in specific cases a variance from the terms of this ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and

d.

Hear and decide other matters authorized under this ordinance.

(2)

In authorizing its authority under Subsection (c)(1)a, the Board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the Board has the same authority as the administrative official.

(3)

The concurring vote of seventy-five percent (75%) of the members of the Board is necessary to:

a.

Reverse an order, requirement, decision, or determination of an administrative official;

b.

Decide in favor of an applicant on a matter on which the Board is required to pass under this [Zoning] Ordinance; or

c.

Authorize a variation from the terms of a zoning ordinance.

(d)

APPEAL TO BOARD.

(1)

Except as provided by Subsection [(d)](6), any of the following persons may appeal to the Board a decision made by an administrative official that is not related to a specific application, address, or project:

a.

A person aggrieved by the decision; or

b.

Any officer, department, board, or bureau of the municipality affected by the decision.

(2)

Except as provided by Subsection [(d)](6), any of the following persons may appeal to the Board a decision made by an administrative official that is related to a specific application, address, or project:

a.

A person who:

(i)

Filed the application that is the subject of the decision;

(ii)

Is the owner or representative of the owner of the property that is the subject of the decision; or

(iii)

Is aggrieved by the decision and is the owner of real property within two hundred (200) feet of the property that is the subject of the decision; or

b.

Any officer, department, board, or bureau of the municipality affected by the decision.

(3)

The appellant must file with the Board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed not later than the 20th day after the date the decision is made. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record of the action that is appealable.

(4)

An appeal stays all proceedings in the furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the Board facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the Board or a court of record on application, after notice to the official, if due cause is shown.

(5)

The Board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The Board shall decide the appeal at the next meeting for which notice can be provided following the hearing and not later than the 60th day after the date of the appeal is filed.

(6)

A member of the [City] Council who serves on the Board may not bring an appeal.

(e)

CRITERIA FOR REVIEW.

(1)

Appeals Criteria. Appeals to administrative decisions may be made to the Board. To be effective, the appeal must be made in writing and must be made in writing and must contain the following information:

a.

A citation to the specific statute and/or ordinance which is the subject of the appeal;

b.

A summary of the decision made by a City Official which is the basis for the appeal;

c.

If the administrative official's decision was made in writing, a copy of the document in which the decision is stated;

d.

The specific grounds upon which the appeal is based;

e.

A description of the property affected by the administrative official's decision sufficient to identify the location and the boundaries of the property; and

f.

When the appeal involves the development of a specific tract of land, a site plan, drawn to scale, showing existing and proposed development of the property in question.

(2)

Variance Criteria. To approve an application for a variance, the Zoning Board of Adjustment shall make an affirmative finding that each and every one of the following criteria is met:

a.

Special circumstances resulting in unnecessary hardship. A variance may be granted where special circumstances exist on the property related to the size, shape, area, topography, surrounding conditions or location that do not generally apply to other property in the same zoning district, and that the circumstances are such that strict and literal application of this Zoning Ordinance would create an unnecessary hardship or deprive the applicant of reasonable use of the land or building.

b.

Overriding public interest. A variance may be granted if it will further an overriding public interest or concern, including, but not limited to:

(i)

Preserving the natural environment;

(ii)

Promoting maintenance or reuse of older urban or historic buildings; or

(iii)

Helping to eliminate a nonconforming use at another location.

c.

The special conditions and circumstances are not self-imposed (i.e., do not result from the actions of the applicant or owner).

d.

That the granting of such variance will not be contrary to the objectives and principles contained in the Comprehensive Plan and this Zoning Ordinance, yet where it has been demonstrated that, due to the existence of legally nonconforming structures, a substantial proportion of other properties in the same area and zoning district are legally enjoying the conditions that the applicant is requesting.

e.

That the variance to be granted is the minimum variance that will relieve the proven hardship.

f.

That granting the variance will not adversely affect adjacent land in a material way.

g.

That the variance is not grounded solely upon the opportunity to make the property more profitable or to reduce expense to the current or any future owner.

h.

That the variance would not modify or effectively repeal any development or use regulations set forth in an ordinance or Planned Development District which are in addition to the generally applicable use and development regulations set forth in this [Zoning] Ordinance.

i.

That the variance would only affect a specific parcel of property and is not of such a general nature as to effectively constitute a change in zoning.

(3)

Conditions. The Zoning Board of Adjustment may impose such conditions on a variance as are necessary to accomplish the purposes of this Zoning Ordinance, to prevent or minimize adverse impacts upon the public neighborhoods, and to ensure compatibility of the site with its surroundings. These conditions may include but are not limited to limitations on size, bulk and location; standards for landscaping, buffering and screening, lighting and adequate ingress and egress; cash deposits, bonds and other guarantees of performance; other on-site improvements; and limitations on the duration or hours of operations of an allowed use.

(4)

Variances Not Allowed. In exercising its authority, the Zoning Board of Adjustment shall not grant a variance that would create any of the following effects:

a.

The effect of the variance on the specific property would adversely affect the land use pattern as outline by any City land use plan or policy.

b.

The variance would be a material detriment to the public welfare or create injury to the use, enjoyment or value of property in the vicinity.

c.

The variance is not the minimum variance that will relieve the proven hardship.

d.

The variance would allow a use not allowed in the use table for the district in which the parcel is located.

e.

The variance will relieve the applicant of conditions or circumstances that are caused by the illegal subdivision of land, which subdivision of land caused the property to be unusable for any reasonable development under the existing regulations.

f.

The variance will relieve the applicant of conditions or circumstances that are self-imposed.

g.

The variance is grounded solely upon the opportunity to make the property more profitable or to reduce expense to the owner.

h.

The variance will modify any condition imposed by the Planning and Zoning Commission or City Council as part of a Specific Use Permit, or Planned Development District.

i.

Allowing a variance for a primary or secondary structure to be located in the front yard building setback when the property in question has viable alley access, even if such access requires the removal of an existing wall.

j.

The written disapproval of any property owner within the 200' notification of the subject property.

(5)

Effect of Variance.

a.

Issuance of a variance shall authorize only the particular variation which is approved in the variance. A variance shall run with the land.

b.

Unless otherwise specified in the variance, an application to commence construction of the improvements that were the subject of the variance request must be applied for and approved within twelve (12) months of the approval date of the variance; otherwise, the variance shall automatically become null and void. Permitted time frames do not change with successive owners. Upon written request, only one (1) extension of the twelve (12) month period may be granted by the Building Official if it is determined that conditions of the site and immediately surrounding area are substantially unchanged.

(f)

JUDICIAL REVIEW OF BOARD DECISION.

(1)

Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the Board is illegal in whole or in part and specifying the grounds of the illegality:

a.

A person aggrieved by a decision of the Board;

b.

A taxpayer; or

c.

An officer, department, board, or bureau of the municipality.

(2)

The petition must be presented within ten (10) days after the date the decision is filed with the Board.

(Ord. No. 046-2019, § 7, 12-10-2019; Ord. No. 045-2021 , § 1, 9-28-2021)

Editor's note— Ord. No. 045-2021 , § 1, adopted September 28, 2021, moved and renumbered subsections (a) and (b) of § 5-2 to chapter 2, division 9. Subsection (a) derived from Ord. of 12-14-2010.