A.

Intent.

1.

Within the districts established by this chapter, there exist uses of land and structures which were lawful before the effective date of this chapter, but which do not now conform to the regulations of the district in which they are located.

2.

It is the intent of this chapter to permit such non-conforming uses to continue, subject to the limitations of this section and other applicable regulations of the city.

3.

It is also the intent of this chapter that non-conforming uses shall not be enlarged and shall not be used as a basis for adding other structures or uses prohibited elsewhere in the same district.

4.

Although nonconforming uses may exercise the right to continue operation, subject to the provisions of this chapter, nonconforming uses are incompatible with the normal exercise of right of use afforded under the provisions of the designated zoning category and of this chapter.

B.

Demonstration of non-conforming status.

1.

The burden of demonstrating nonconformity shall belong to the property owner.

2.

The nonconforming status shall specify whether the building, the lot, the use, the site, or some combination thereof is non-conforming at the time of designation. Requirements shall be in accordance with the type of nonconformity.

C.

Nonconforming uses.

1.

Any use which was lawful before the effective date of this chapter may be continued even though such use does not conform to the provisions of this chapter. Such use may be extended throughout the structure, provided no structural alterations, except those required by law or ordinance, are made therein.

2.

Any use which does not conform to the regulations of the zoning district and any applicable overlay district in which it is located shall be deemed a non-conforming use when:

a.

The use was in existence and lawfully operating prior to the effective date of this chapter, and which has since been in regular and continuous use;

b.

The use was in existence and lawfully operating at the time of any amendment to this chapter, but by such amendment is now found to be in a district where said use is not otherwise permitted, and has since been in regular and continuous use; or

c.

The use was in existence and lawfully operating at the time of annexation into the city and has since been in regular and continuous use.

3.

Should land adjacent to a nonconforming use, which is in the same ownership but not itself the site of the nonconforming use, be sold separately from the nonconforming use, the use of the land which is sold shall conform to the requirements of this chapter and shall not be considered a nonconforming use.

4.

The right to continue a nonconforming use shall be transferable by deed provided the preceding requirements are met.

5.

Whenever a nonconforming use is discontinued for one (1) year or more, all nonconforming use rights shall cease, the use shall be deemed abandoned and future use of the premises shall thereafter be in conformance with this chapter.

6.

Any nonconforming use may be changed to a conforming use. Once such a change is made, the use may not be changed back to nonconforming status.

D.

Nonconforming structures.

1.

Any structure which does not conform to the regulations of the zoning category and any applicable overlay district in which it is located shall be deemed a non-conforming structure when:

a.

The structure was in existence and lawfully located, constructed and operating prior to the effective date of this chapter, and which has since been in regular and continuous use;

b.

The structure was in existence and lawfully located, constructed and operating at the time of any amendment to this chapter, but by such amendment is now found to be in a district where said use, platted lot or structure is not otherwise permitted, and has since been in regular and continuous use; or

c.

The structure was in existence and lawfully located, constructed and operating at the time of annexation into the city, and has since been in regular and continuous use.

2.

Any nonconforming structure may be changed to a conforming structure. Once such a change is made, the structure may not be changed back to nonconforming status.

3.

For a non-conforming structure to be changed to a conforming structure, building permits and a certificate of occupancy, granted in accordance with the current building code at the time of the petition for a change to conforming status, shall be required.

4.

Except as hereinafter provided, a nonconforming structure may be occupied and operated and maintained with a conforming use, as long as the structure is maintained in a state of good repair and a certificate of occupancy is obtained from the city prior to the occupancy.

5.

When a conforming use is intended to be located within a nonconforming structure, this use may be enlarged or extended within the nonconforming structure. However, an extension or enlargement of a conforming use shall not change the non-conforming status of the structure if the structure is deemed to be non-conforming.

6.

When remodeling the exterior or adding onto a nonconforming structure at a cost equal to or greater than fifty (50) percent of the structure's value, both the preexisting structure and the addition shall be required to conform to the standards of this chapter.

7.

All remodeling of the exterior or adding onto a nonconforming structure at a cost less than fifty (50) percent of the value of the structure shall, at a minimum, have the same level and standard of materials, architectural features, and style as the existing structure.

8.

A nonconforming structure damaged in any manner and from any cause whatsoever to the extent of not more than fifty (50) percent of its replacement cost may be restored, provided restoration is begun within one (1) year and completed within two (2) years of the date of damages.

9.

Value for a preexisting structure is determined by the improvement value that is currently recorded with the Kendall County Appraisal District.

10.

Whenever a nonconforming structure is unoccupied, abandoned or in violation of any of the applicable building regulations of the city for one (1) year or more, all rights of nonconformity shall cease, and future use of the premises shall thereafter be in conformance with the regulations of this chapter.

E.

Nonconforming lots.

1.

Nonconforming lots that lawfully existed on the effective date of this chapter or subsequent amendments to this chapter shall be considered legal nonconforming lots.

2.

Minimum residential lot areas shall be in accordance with the table of dimensional standards, except that a lot having less area than required by this chapter, which was an official "lot of record" prior to the adoption of this chapter, may be used for a single-family dwelling.

F.

Nonconforming sites.

1.

Sites where improvements such as fences, parking areas, landscaping or sidewalks were conforming at the time of installation, but which are not in conformity with the standards of design standards at the time of adoption, shall be considered nonconforming sites.

2.

Any remodeling or replacement of a non-conforming site component at a cost less than fifty (50) percent of the value of the nonconforming component shall be permitted, provided the remodeling or replacement maintains the same materials and design as the existing non-conforming design component.

G.

Remodeling or replacement. Any remodeling or replacement of a nonconforming site component at a cost greater than fifty (50) percent of the value of the nonconforming component shall require conformity with the city's current standards.

H.

Nonconformities under previous ordinance.

1.

Any legal nonconformity under the zoning regulations in effect before the effective date of this chapter shall be considered a legal nonconformity under this chapter, provided the situation that resulted in the nonconformity under the previous regulations continues to exist.

2.

If, however, a nonconformity under a prior ordinance becomes conforming because of the adoption of this chapter or any subsequent amendment to this chapter, then such situation shall no longer be considered a nonconformity.

I.

Continuation of land use regarding manufactured home communities.

1.

The governing body of a municipality may not require a change in the nonconforming use of any manufactured home lot within the boundaries of a manufactured home community if:

a.

The nonconforming use of the land constituting the manufactured home community is authorized by law; and

b.

At least fifty (50) percent of the manufactured home lots in the manufactured home community are physically occupied by a manufactured home used as a residence.

2.

Requiring a change in the nonconforming use includes:

a.

Requiring the number of manufactured home lots designated as a nonconforming use to be decreased; and

b.

Declaring that the nonconforming use of the manufactured home lots has been abandoned based on a period of continuous abandonment of use as a manufactured home lot of any lot for less than twelve (12) months.

3.

A manufactured homeowner may install a new or used manufactured home, regardless of the size, or any appurtenance on a manufactured home lot located in a manufactured home community for which a nonconforming use is authorized by law, provided that the manufactured home or appurtenance and the installation of the manufactured home or appurtenance comply with:

a.

Nonconforming land use standards, including standards relating to separation and setback distances and lot size, applicable on the date the nonconforming use of the land constituting the manufactured home community was authorized by law; and

b.

All applicable state and federal law and standards in effect on the date of the installation of the manufactured home or appurtenance.

4.

If the construction of new single-family residences or the construction of additions to existing single-family residences on a site located in a designated floodplain is prohibited, the city may prohibit the installation of a manufactured home in a manufactured home community on a manufactured home lot that is located in an equivalently designated floodplain.

J.

Completion of buildings under construction. Nothing contained in this chapter shall require any change in the plans, construction or designated use of a structure actually under construction, and for which a building permit was issued, so long as such structure is completed within one (1) year from the date of this chapter.

K.

Variances.

1.

The board of adjustment may grant a variance to this section only if the owner can show there was a clear intent not to abandon the use even though the use may have been discontinued for one (1) year.

2.

Evidence that the use was not intended to be abandoned may include evidence that the property or structure continued to be marketed throughout the period of the vacancy for the non-conforming use, or that the property or structure has not during the period of vacancy become delinquent in city taxes.