Boulder City Zoning Code
NON-CONFORMING USES
NON-COMPLYING STRUCTURES AND OTHER NON-CONFORMITIES
§ 153.255 PURPOSE.
The following provisions are provided to establish procedures for determining the existence of a legal non-conforming use, a legal non-complying structure or other legal non-conformity, including non- complying lots and signs, and other matters relating to legal non-conforming uses, legal non-complying structures and other legal non-complying structures and activities.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1301)
§ 153.256 LEGAL NON-CONFORMING USES OR NON-COMPLYING STRUCTURES MAY BE CONTINUED.
(A) A legal non-conforming use or legal non-complying structure, as determined by the provisions of this chapter, may be continued by the present or a future property owner.
(B) A legal non-conforming use may be extended through the same building; provided, no structural alteration of the building is proposed or made for the purpose of the extension.
(C) For purposes of this chapter, the addition of a solar energy device to a building is not a structural alteration.
(D) The town shall not prohibit the reconstruction or restoration of a non-complying structure or terminate the non-conforming use of a structure that is involuntarily destroyed in whole or in part due to fire or other calamity unless the structure or use has been abandoned.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1302)
§ 153.257 AUTHORITY.
(A) As provided for by the Act, the BOA is hereby authorized as the land use authority to review and render a decision determining the existence of a legal non-conforming use, a legal non-complying structure or other legal non-conformity.
(B) The BOA is hereby authorized as the land use authority to review and render a decision concerning any disputes relating to the abandonment of structures associated with a non-conforming use or non-complying structure.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1303)
§ 153.258 INITIATION.
All requests for a determination of the existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity shall be initiated by filing the necessary application in the office of the Town Clerk. A property owner may present an application for review and decision by the BOA. An agent of the property owner, or a lessee of the property, may present an application for a determination of the existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity for review and decision; provided, such application is accompanied by a property owner affidavit of authorization.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1304)
§ 153.259 APPLICATION REQUIREMENTS; DETERMINATION OF APPLICATION COMPLETENESS REQUIRED.
All applications for a determination of the existence of a legal non-conforming use, legal non- complying structure or other legal non-conformity, as applicable, are required to comply with all requirements of this subchapter and this chapter. All applications for a determination of the existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity shall be determined complete by the Zoning Administrator.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1305)
§ 153.260 BURDEN OF PROOF WITH THE PROPERTY OWNER.
As provided by the Act, the property owner shall have the burden of establishing the legal existence of a non-conforming use, non-complying structure or other non-conformity.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1306)
§ 153.261 DETERMINATION OF EXISTENCE OF A LEGAL NON-CONFORMING USE, LEGAL NON-COMPLYING STRUCTURE OR OTHER LEGAL NON-CONFORMITY APPLICATION REQUIREMENTS.
All determination of existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity applications shall include and provide the following information:
(A) A complete determination of a legal non-conforming use, legal non-complying structure or other legal non-conformity application, available from the office of the Town Clerk;
(B) Determination of a legal non-conforming use, legal non-complying structure or other legal non- conformity application fees, as established by the Council; and
(C) Other information, as may be determined necessary by the applicant(s), to clearly establish the existence of a legal non-conforming use, non-complying structure, lot, sign or other non-conformity on the date of adoption of this chapter, or prior enactments thereof, and compliance with all requirements of this subchapter and this chapter, and compliance with all requirements of prior enactments thereof.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1307)
§ 153.262 APPROVAL STANDARDS FOR A DETERMINATION OF THE EXISTENCE OF A LEGAL NON-CONFORMING USE, LEGAL NON-COMPLYING STRUCTURE OR OTHER LEGAL NON-CONFORMITY APPLICATION BY THE BOA.
The BOA shall review the application and determine if the application, from the materials presented by the applicant, the existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity, complies with the following:
(A) The use, structure or other non-conformity is not an allowed use, structure or other activity allowed within the zoning district; and
(B) From the evidence presented by the applicant, who shall have the burden of establishing the legal existence of the non-conforming use, non-complying structure or other non-conformity, as provided by the Act, that sufficient information, documentation and other materials have been presented by the applicant to clearly establish that the use, structure or other non-conformity, which is the subject of the application, legally existed on the date of adoption of this chapter and complied with all prior enactments of this chapter.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1308)
§ 153.263 REQUIRED FINDINGS FOR APPROVAL OR DENIAL OF A DETERMINATION OF THE EXISTENCE OF A LEGAL NON-CONFORMING USE, LEGAL NON- COMPLYING STRUCTURE OR OTHER LEGAL NON-CONFORMITY APPLICATION BY THE BOA.
(A) If the BOA finds that the use, structure or other non-conformity, which is the subject of the application, legally existed on the date of adoption of this chapter, as adopted, and all other land use ordinances and requirements, as applicable, and complied with all prior enactments thereof, the application shall be approved. Following the approval by the BOA of a determination of the existence of a legal non-conforming use, legal non-complying structure or other legal non-conformity application, the applicant may apply for other necessary approvals, licenses or permits as may be applicable and authorized by this chapter.
(B) If the BOA finds that the use, structure or other non-conformity which is the subject of the application did not legally exist on the date of adoption of this chapter, as adopted, and all other land use ordinances and requirements, as applicable, and did not comply with all prior enactments thereof, the application shall be denied and no other approvals, licenses or permits shall be approved that are related to the use, structure or other non-conformity.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1309)
§ 153.264 EFFECT OF APPROVAL OF AN APPLICATION FOR A DETERMINATION OF THE EXISTENCE OF A LEGAL NON-CONFORMING USE, LEGAL NON-COMPLYING STRUCTURE OR OTHER LEGAL NON-CONFORMITY.
(A) A finding by the BOA of the existence of a legal non-complying use, non-complying structure, lot, sign or other non-conformity shall not authorize the establishment, restoration, reconstruction, extension, alteration, expansion or substitution of any non-conforming use, non-complying structure, lot, sign or other non-conformity.
(B) Following a decision by the BOA, the BOA Recording Secretary shall provide the applicant with a written notice of the decision. The written record of all applications shall be maintained on file by the Town Clerk.
(C) A finding by the BOA of the existence of a legal non-complying use, non-complying structure, lot, sign or other non-conformity shall not be deemed an approval of any other application, permit or license.
(D) A finding by the BOA of the existence of a legal non-complying use, non-complying structure, lot, sign or other non-conformity shall allow the filing of an application for any necessary approval, permit or license, as may be required by this chapter, as adopted, and all other land use ordinances and requirements, as applicable.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1310)
§ 153.265 REQUIREMENTS FOR NON-CONFORMING USES.
Following a determination by the BOA of the existence of a legal non-conforming use, the use shall comply with the following requirements.
(A) As provided by the Act, a legal non-conforming use may be continued by the present or future property owner.
(B) As provided by the Act, a legal non-conforming use may be extended through the same building; provided, no structural alteration of the building is proposed or made for the purposes of the extension. As provided by the Act, for the purposes of this section, the addition of a solar energy device to a building is not a structural alteration.
(C) Necessary maintenance and repairs may be made to a structure housing a legal non-conforming use by following the procedures for any approval, permit or license, including the issuance of a building permit, for such maintenance and repairs, as required by this chapter, as adopted, and all other land use ordinances and requirements, as applicable.
(D) As provided by the Act, the town may require the termination of a legal non-conforming use by providing a formula establishing a reasonable time period during which the owner can recover or amortize the amount of his or her investment in the non-conforming use.
(E) As provided by the Act, the town may not terminate a legal non-conforming use of a structure that is involuntarily destroyed in whole or in part due to fire or other calamity unless the use has been abandoned.
(F) As provided by the Act, a legal non-conforming use of a structure shall terminate if:
(1) The structure is allowed to deteriorate to a condition that the structure is rendered uninhabitable and is not repaired or restored within six months after written notice is provided to the property owner, by the Zoning Administrator, that the structure is uninhabitable and that the non- conforming use will be lost if the structure is not repaired or restored within six months; or
(2) The property owner has voluntarily demolished a majority of the building that houses the non-conforming use.
(G) A legal non-conforming use may only be changed to a use allowed in the Table of Uses for the zoning district in which the property is located, by following the approval procedures for such use, as required by this chapter, as adopted, and all other land use ordinances and requirements, as applicable.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1311)
§ 153.266 REQUIREMENTS FOR NON-COMPLYING STRUCTURES.
Following a determination by the BOA of the existence of a legal non-complying structure, the structure shall comply with the following requirements.
(A) As provided by the Act, a legal non-complying structure may be continued by the present or future property owner.
(B) As provided by the Act, the town may not prohibit the reconstruction or restoration of a legal non-complying structure that is involuntarily destroyed in whole or in part due to fire or other calamity unless the structure has been abandoned.
(C) Necessary maintenance and repairs may be made to a legal non-complying structure by following the procedures for any approval, permit or license, including the issuance of a building permit, for such maintenance and repairs, as required by this chapter, as adopted, and all other land use ordinances and requirements, as applicable.
(D) As provided by the Act, a legal non-complying structure shall terminate if:
(1) The structure is allowed to deteriorate to a condition that the structure is rendered uninhabitable and is not repaired or restored within six months after written notice is provided to the property owner, by the Zoning Administrator, that the structure is uninhabitable and that the non- complying structure will be lost if the structure is not repaired or restored within six months; or
(2) The property owner has voluntarily demolished a majority of the non-complying structure.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1312)
§ 153.267 REQUIREMENTS FOR NON-COMPLYING LOTS.
(A) This section shall apply to legal undeveloped non-complying lots or parcels.
(B) A legal lot of record or any parcel of record legally existing on the date of adoption of this chapter shall be eligible for a building permit authorizing the construction of one single-family dwelling, complying with the provisions of this chapter, as adopted, and all other land use ordinances and requirements, as applicable, even though such lot or parcel may not conform to the requirements of the zoning district in which the legal non-complying lot or parcel is located; provided:
(1) Such lot or parcel of land is located in a zoning district that allows single-family dwellings; and
(2) The proposed construction can qualify for the issuance of a building permit for a single-family dwelling, as required by the Building Codes as adopted.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1313)
§ 153.268 REQUIREMENTS FOR NON-COMPLYING SIGNS.
This section shall apply to signs that were legal on the date of adoption of this chapter, but which may now be a non-complying structure.
(A) A legal non-complying sign shall not be enlarged.
(B) A legal non-complying sign shall not be moved or replaced, except to bring the sign into compliance with this chapter, as adopted, and all other land use ordinances and requirements, as applicable.
(C) The text message of a legal non-complying sign may be changed if such changes do not create any new non-conformities or other non-compliance.
(D) A legal non-complying sign shall be considered abandoned if it advertises a business, service, commodity or other activity that has been discontinued for a minimum period of one year.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1314)
§ 153.269 TERMINATION OF A NON-CONFORMING USE BY THE TOWN PERMITTED; REASONABLE AMORTIZATION PERIOD REQUIRED.
As provided by the Act, the town may terminate a non-conforming use, except billboards, by providing a formula establishing a reasonable time period during which the owner can recover or amortize the amount of his or her investment in the non-conforming use, if any.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1315)
§ 153.270 TERMINATION OF A NON-CONFORMING USE DUE TO ABANDONMENT.
(A) As required by the Act, any party claiming a legal non-conforming use has been abandoned shall have the burden of establishing the abandonment.
(B) Abandonment may be presumed to have occurred if:
(1) A majority of the primary structure associated with the non-conforming use has been voluntarily demolished without prior written agreement with the town regarding an extension of the non-conforming use;
(2) The use has been discontinued for a minimum period of one year; or
(3) The primary building associated with the non-conforming use remains vacant for a minimum period of one year.
(C) (1) The property owner may rebut the presumption of abandonment under this section and shall have the burden of establishing that any claimed abandonment under this section has not in fact occurred.
(2) The BOA shall have authority to review and decide all disputes relating to abandonment of structures associated with a non-conforming use, non-complying structure or other non-conformity.
(D) The town may terminate the non-conforming use status of a school district or charter school use or structure when the property associated with the school district or charter school use or structure ceases to be used for school district or charter school purposes for a minimum period of one year.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1316)
§ 153.271 DETERMINATION OF A LEGAL NON-CONFORMING USE, LEGAL NON- COMPLYING STRUCTURE, OTHER LEGAL NON-CONFORMITY APPLICATIONS BY THE BOA TO BE ON FILE.
The Town Clerk shall maintain all determinations of a legal non-conforming use, legal non-complying structure or other legal non-conformity applications on file.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1317)
§ 153.272 REVOCATION OF A DETERMINATION OF A LEGAL NON-CONFORMING USE, LEGAL NON-COMPLYING STRUCTURE, OTHER LEGAL NON-CONFORMITY APPLICATIONS.
The approval of a determination of a legal non-conforming use, legal non-complying structure or other legal non-conformity application by the BOA shall be revoked by the BOA if the BOA finds that the approval was obtained in a fraudulent manner.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1318)
§ 153.273 APPEAL.
Any person aggrieved by a decision of the BOA related to a non-conforming use, non-complying structure or other non-conformity may appeal the decision to District Court, as provided by Act, and as provided herein.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1319)