In the provisions established by this Ordinance, there exist uses of land, structures, lots of record, signs, and other site features that were lawfully established before this Ordinance was adopted or amended, but do not conform to its terms and requirements. It is the general policy of the city to allow such uses, structures, lots, signs, and other site features to continue to exist and be put to productive use. It also is the policy of the city, however, to bring as many nonconformities into conformance with this Ordinance as is reasonably practicable, subject to the requirements of this article. The purpose and intent of this article is to recognize the interests of the property owner in continuing to use the property, but to preclude the expansion of a nonconformity or reestablishment of a discontinued or substantially destroyed nonconformity unless allowing such expansion or reestablishment can serve as an incentive to achievement of even greater public benefit.

This article applies to nonconformities created by initial adoption of, or amendments to, this Ordinance. It also applies to a use, structure, lot, sign, and other site feature that was a legal nonconformity under a similar provision of a previously applicable ordinance of the city or county and that remains nonconforming with one or more provisions of this Ordinance, even if the type or extent of nonconformity is different.

Nonconformities are allowed to continue, and are encouraged to receive routine maintenance in accordance with the requirements of this article as a means of preserving safety and appearance.

The burden of establishing that a nonconformity lawfully exists shall be the responsibility of the owner of the land on which the alleged nonconformity is located.

Minor repairs and normal maintenance that are required to keep nonconforming uses, structures, lots of record, and signs in a safe condition are permitted, provided the minor repair or maintenance does not increase the extent of the nonconformity. For the purposes of this subsection, "minor repair or normal maintenance" shall mean:

(1)

Repairs that are necessary to maintain a nonconforming use, structure, lot of record, or sign in a safe condition; and

(2)

Maintenance of land areas to protect against health hazards and promote the safety of surrounding uses.

The status of a nonconformity is not affected by changes of tenancy, ownership, or management.

Nonconforming uses are declared generally incompatible with the permitted uses in the district in which they are located and with the provisions of this Ordinance. Nonconforming uses shall be subject to the standards in this subsection.

(1)

Except in accordance with this subsection, a nonconforming use shall not be extended, enlarged, expanded, moved to occupy a different area, or intensified. An existing nonconforming use may extend into any portion of a structure that was clearly designed or arranged for such use alone when the use became nonconforming.

(2)

The following shall be considered as extensions of the use of a structure:

a.

Attachment of signs to the structure;

b.

Placement of signs or display materials on land outside the structure; and

c.

Attachment of racks, balconies, or other projections from the structure.

(3)

No nonconforming use shall be extended to displace a conforming use.

(1)

A structure used for a nonconforming use shall not be reconstructed, restored, rebuilt, structurally altered, or repaired during its life to an extent whereby the cumulative cost of the reconstruction, restoration, rebuilding, structural alteration, or repair equals or exceeds 50 percent of the structure's market value unless the structure is thereafter used only for a conforming use.

(2)

If a structure used for a nonconforming use is damaged or destroyed by any means, it shall not be reconstructed, restored, rebuilt, structurally altered, or repaired for continued use for the nonconforming use except in accordance with the requirements of Section 23-8-3(E), Reconstruction or Restoration after Damage.

An existing, lawfully-established nonconforming mobile home may be replaced by a Class A manufactured home or a Class B manufactured home. A Class B manufactured home may be replaced by a Class A manufactured home or another Class B manufactured home, provided the replacement manufactured home has a newer construction date than the Class B manufactured home being replaced.

If no structural alterations are made, a nonconforming use may be changed to another nonconforming use of the same or more restrictive use category, as identified in the use tables in Sections 23-4-1(B) and 23-4-1(C). Once a nonconforming use is changed to a conforming use, no structure or land shall be allowed to revert to a nonconforming use.

(1)

If a nonconforming use ceases to operate or has been discontinued for a period of one year or longer, it shall not be reestablished and shall only be replaced with a conforming use.

(2)

Time spent renovating or repairing a structure devoted to the nonconforming use is not considered a discontinuance of the use, provided:

a.

All appropriate development approvals are obtained;

b.

The renovation or repair is completed within 18 months after commencement of the repair or renovation; and

c.

The use is reestablished within 30 days after completion of the renovation or repairs.

(3)

Once a nonconforming principal use is discontinued, all associated accessory uses shall cease operations within 30 days.

(1)

Policy

Certain public, quasi-public, semi-public, and institutional uses currently exist as nonconforming uses in the city. There are also specific areas within the city in which redevelopment will be encouraged. Because of the substantial investment in such uses, the public interest in the maintenance of such uses as modern and functional facilities, the lack of vacant land for the relocation of such uses in the developed portions of the city, and the enormous public and private cost involved in relocating such uses, the City Council finds it is in the public interest to provide limited exceptions for these facilities from the standards of this article.

(2)

Existing Public and Semipublic Facilities

Existing public and governmental uses, schools, colleges, universities, and golf courses may continue to be operated and maintained in any residential or commercial district and may be expanded if such expansion can be accomplished in accordance with the applicable zoning district regulations. No new such facility may be established except where permitted in the applicable zoning district.

(3)

Existing Cemeteries and Mausoleums

Existing cemeteries and mausoleums and their accessory structures and appurtenances may be maintained, structurally altered, enlarged, or extended within the existing boundaries of such cemeteries or mausoleums, subject to a Conditional Use Permit approved in accordance with Section 23-2-4(D), Conditional Use Permit.

(4)

Redevelopment Areas

A nonconforming use that exists or formerly existed within a redevelopment area designated by the city may be extended or reestablished, subject to a Conditional Use Permit approved in accordance with Section 23-2-4(D), Conditional Use Permit, if found to be consistent with the goals of the Biloxi Comprehensive Plan and the redevelopment plan for the specific redevelopment area.

A nonconforming principal structure containing a conforming use may only continue in accordance with the provisions of this subsection. Nonconforming structures housing a nonconforming use may only continue in accordance with the standards in Section 23-8-2, Nonconforming Uses.

A nonconforming structure shall not be enlarged or expanded in any way that increases the nonconformity. (For example, a structure that has a side yard setback of five feet where the Ordinance requires a minimum side yard setback of ten feet cannot be enlarged so as to further encroach into the side yard setback.) Expansion of the structure in a way that complies with applicable dimensional standards or that decreases the degree of nonconformity is permitted.

A nonconforming structure shall not be moved, in whole or in part, to another location on or off the parcel of land on which it is located, unless the entire structure thereafter conforms to the requirements of this Ordinance.

(1)

Maintenance and repairs of a nonconforming structure shall not equal or exceed 50 percent of the market value of the structure.

(2)

Remodeling of a nonconforming structure within the existing building footprint is permitted, provided that the remodeling does not increase the degree of nonconformity and that applicable building and life safety codes are met.

(1)

Damage up to 50 Percent of Value

If a nonconforming structure is damaged by any means to an extent whereby the cost of restoring the structure to its before-damaged condition would be less than 50 percent of its market value before the damage occurred, the structure may be reconstructed, restored, rebuilt, structurally altered, or repaired if:

a.

The reconstruction, restoration, rebuilding, structural alteration, or repair does not increase, expand, enlarge, or extend the degree of nonconformity;

b.

A Building Permit authorizing the reconstruction, restoration, rebuilding, structural alteration, or repair is obtained within six months after the damage; and

c.

The reconstruction, restoration, rebuilding, structural alteration, or repair is completed in accordance with approved plans within one year after the damage.

(2)

Damage of 50 Percent or More of Value

If a nonconforming structure is damaged by any means to an extent whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of its market value before the damage occurred, the structure shall not be reconstructed, restored, rebuilt, structurally altered, or repaired except in conformity with the provisions of this Ordinance.

(1)

Policy

Those areas of Biloxi most vulnerable to storms and flooding contain many nonconforming structures that are important to maintaining the character of the city and its neighborhoods. To maintain that character yet reduce vulnerability to storm and flood damage, this subsection relaxes limitations on the enlargement, expansion, relocation, remodeling, reconstruction, restoration, rebuilding, structural alteration, or repair of nonconforming structures located within floodplains where hazard resiliency measures are incorporated and compatibility with the surrounding neighborhood is maintained.

(2)

Nonconforming Structures in Floodplains

Existing nonconforming structures located within an area of special flood hazard—as designated on Flood Insurance Rate Maps adopted as part of Chapter 8, Flood Damage Prevention, of the Biloxi Code of Ordinances—may be enlarged, expanded, remodeled, relocated elsewhere in an area of special flood hazard, or reconstructed, restored, rebuilt, structurally altered, or repaired after damage, without regard to the limitations in Sections 23-8-3(B)—(E) above, and subject to a Conditional Use Permit approved in accordance with Section 23-2-4(D), Conditional Use Permit, and in accordance with the following provisions:

a.

The nonconforming structure's resiliency to storm and flood damage shall be increased through use of at least four of the following measures, where undertaken in accordance with standards and guidelines of the National Flood Insurance Program (NFIP):

1.

Elevating the structure so its lowest habitable floor is at least 50 percent closer to the base flood elevation;

2.

Dry floodproofing exterior walls below the base flood elevation up to at least 75 percent of the height between ground level and the base flood elevation;

3.

Converting enclosed areas of the structure below the base flood elevation to nonhabitable space;

4.

Wet floodproofing enclosed areas of the structure below the base flood elevation to allow flood waters to temporarily fill the areas to equalize hydrostatic loads and prevent buoyancy, including the elevation or floodproofing of HVAC equipment and electrical system components;

5.

Installing permanent storm shutters on glass windows and doors or replacement of glass windows and doors with shatterproof glass;

6.

Installing flood openings in foundations and enclosed areas of the structure below the base flood elevation to allow flood waters to pass through to equalize hydrostatic loads and prevent buoyancy; or

7.

Securing shingle, built-up, and metal roofs against high wind damage.

b.

The footprint of the nonconforming part of the structure shall not be increased by more than 15 percent.

c.

The nonconforming structure shall be enlarged, expanded, remodeled, relocated, reconstructed, restored, rebuilt, structurally altered, or repaired in a manner that is compatible with the character of the surrounding neighborhood.

d.

The reconstruction, restoration, rebuilding, structural alteration, or repair shall comply with flood hazard prevention standards in Chapter 8, Flood Damage Prevention, of the Biloxi Code of Ordinances.

No use or structure shall be established on a nonconforming lot of record except in accordance with the standards in this section.

(1)

Conforming structures legally established on a nonconforming lot before November 9, 2010 may be continued, enlarged, extended, reconstructed, or structurally altered in any way that is in conformance with the standards of this Ordinance.

(2)

Nonconforming structures legally established on a nonconforming lot before November 9, 2010 may be continued, enlarged, or redeveloped only in accordance with the standards in Section 23-8-3, Nonconforming Structures.

Notwithstanding limitations imposed by other provisions of this Ordinance, a nonconforming lot that fails to comply with applicable dimensional standards (e.g., area, width, depth) may be used for a use permitted in the zoning district in which the lot is located. Development of the permitted use on the nonconforming lot shall comply with the other intensity and dimensional standards of the district, to the maximum extent practicable.

If a legally established single-family attached or detached dwelling use on a nonconforming lot in a residential zoning district is damaged to an extent whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of its market value before the damage occurred, the dwelling may be reconstructed within the same footprint as the damaged or destroyed dwelling even though the lot does not meet applicable dimensional standards.

If a vacant nonconforming lot is located adjacent to another lot (whether conforming or nonconforming) held in the same ownership, and the adjacent lot has sufficient size to allow for a rearrangement of property line (See Section 23-2-4(F)(2)b., Exempt Subdivision.) as a means of bringing the vacant lot closer into conformity with the requirements of the zoning district where it is located, then such rearrangement of property lines shall be required as a condition of approval for development on the vacant nonconforming lot.

Governmental acquisition of a portion of a lot for a public purpose that results in a reduction in lot width and/or lot area below that required shall not render the lot nonconforming.

A nonconforming lot may be increased in area, width, or both, through a rearrangement of property lines in accordance with the requirements of Section 23-2-4(F)(2)b, Exempt Subdivision, provided the rearrangement of property lines does not increase the lot's nonconformity.

A nonconforming sign may be maintained, but shall not be enlarged, structurally altered, or relocated in any way that makes the sign more nonconforming.

If a nonconforming sign is damaged by any means to an extent whereby the cost of storing the sign to its before-damaged condition would equal or exceed 50 percent of its replacement value before the damage occurred, the sign shall not be reconstructed, restored, rebuilt, structurally altered, or repaired except in conformity with the provisions of this Ordinance.

If a nonconforming signs advertises a business on the site of the sign, and the business ceases operations at the site, the sign shall be removed within six months after business operations cease.

Except as otherwise provided in Sections 23-8-5(A)—(C) above, nonconforming signs shall comply with the requirements applicable to nonconforming structures in Section 23-8-3, Nonconforming Structures.

The purpose of this section is provide a means whereby the city may require certain nonconforming site features to be brought into compliance with the standards of this Ordinance as part of remodeling or expansion of a structure.

(1)

For purposes of this section, the term "nonconforming site features" includes the following:

a.

Nonconforming off-street parking;

b.

Nonconforming landscaping;

c.

Nonconforming screening of mechanical equipment;

d.

Nonconforming perimeter buffers; and

e.

Nonconforming screening of walls or fences.

(2)

If an application is filed for a Building Permit for the remodeling or expansion of a structure and the development site contains one or more nonconforming site features identified in Section 23-8-6(B)(1), above, and the value of the proposed improvements totals at least 25 percent of the current fair market or assessed value of the existing structure, the applicant shall be required to address the nonconforming site feature as provided in this section.

(3)

The Director of Community Development may develop administrative guidelines to assist in the implementation of this section, including guidelines for the resolution of conflicts when it may not be possible for one or more types of nonconforming site features to be brought into compliance with the requirements of this Ordinance because of particular site constraints or impacts on adjacent properties.

(1)

Remodeling Costing 25 Percent or Less of Structure Value

Remodeling of a structure in any continuous 12-month period that costs 25 percent or less of the current fair market or assessed value of the structure (at the option of the applicant) shall not require any upgrading of the nonconforming site features identified in Section 23-8-6(B)(1).

(2)

Remodeling Costing between 25 and 75 Percent of Structure Value

Remodeling of a structure in any continuous 12-month period that costs more than 25 percent, but less than 75 percent, of the current fair market or assessed value of the structure (at the option of the applicant) shall require nonconforming site features identified in Section 23-8-6(B)(1) to be upgraded towards compliance with the standards of this Ordinance by a corresponding percentage of full compliance, up to achievement of 100 percent compliance.

Example: An existing building that requires 40 off-street parking spaces, but only has 20 spaces, is remodeled such that the cost of remodeling equals 30 percent of the building's value. The remodeling project must add 12 parking spaces (30% × 40), increasing the degree of compliance from 50 percent to 80 percent. A subsequent remodeling whose cost also equals 30 percent of building value might seem to call for the addition of another 12 spaces (30% × 40), but actually only 8 new spaces would be required to achieve 100% compliance.

(3)

Remodeling Costing 75 Percent or More of Structure Value

Remodeling of a structure in any continuous 12-month period that costs 75 percent or more of the current fair market or assessed value of the structure (at the option of the applicant) shall require all nonconforming site features identified in Section 23-8-6(B)(1) to be upgraded to achieve 100 percent compliance with the standards of this Ordinance.

(4)

When Two of Fewer Parking Spaces Required

When this subsection calls for a remodeling project to install two or fewer additional off-street parking spaces, such additional off-street parking is not required to be installed.

(5)

Determination of Building Cost and Structure Value

For purposes of determining if upgrading of nonconforming site features is required by this subsection, the cost of the remodeling shall be as shown on the approved Building Permit application. Fair market value shall be based on a market appraisal performed by a certified appraiser, at the applicant's expense. Assessed value shall be based on the most recently available Harrison County tax rolls.

(1)

Additions and Expansion Less than 15 Percent

Additions or expansions to a structure or use area in any continuous five-year period that increase the gross square footage of the structure or use area (measured at the beginning of the five-year period) by 15 percent or less shall not require any upgrading of the nonconforming site features identified in Section 23-8-6(B)(1).

(2)

Additions and Expansions between 15 and 50 Percent

Additions or expansions to a structure or use area in any continuous five-year period that increase the gross square footage of the structure or use area (measured at the beginning of the five-year period) by more than 15 percent but less than 50 percent shall require nonconforming site features identified in Section 23-8-6(B)(1) to be installed or upgraded towards compliance with the standards of this Ordinance by a corresponding percentage of full compliance, up to achievement of 100 percent compliance.

Example: An existing building in a development that requires 40 caliper inches of canopy trees, but only contains 20 caliper inches, is expanded by 30 percent of the development's gross floor area. The expansion project must add 12 caliper inches of canopy trees (30% × 40), increasing compliance from 50 percent to 80 percent. A subsequent addition whose size also equals 30 percent of existing building size might seem to call for addition of another 12 caliper inches of canopy trees (30% × 40), but actually only eight new caliper inches would be required to achieve 100% compliance.

(3)

Additions and Expansions Greater than 50 Percent

Additions or expansions to a structure or use area in any continuous five-year period that increase the gross square footage of the structure or use area (measured at the beginning of the five-year period) by more than 50 percent shall require all nonconforming site features identified in Section 23-8-6(B)(1) to be installed or upgraded to achieve 100 percent compliance with the standards of this Ordinance.

(4)

Additions and Expansions of Outdoor Use Areas Only

When only outdoor operations, storage, and display areas are being added or expanded on a site, the percentage increase in the gross square footage of the outdoor operations, storage, and display areas shall require perimeter buffers and screening to be installed or upgraded towards compliance with the standards of this Ordinance by a corresponding percentage of full compliance. The increased perimeter buffer and screening shall be located so as to achieve the performance objectives in Section 23-6-3, Landscaping, with priority given to screening the impacts of outdoor operations.

Where full compliance with the requirements of this section is precluded by physical constraints on development, the applicant shall comply with the requirements of this section to the maximum extent practicable, as determined by the Director of Community Development.