It is the intent of this article to permit legal nonconforming lots, structures or uses to continue until they are removed or abandoned, but not to encourage their survival. However, this general statement of intent is subject to reasonable application in practice, and, in appropriate circumstances to authorize resumption, restoration, reconstruction, extension, or substitution of nonconforming uses as legal conditional uses after proper notification and review.

The City of Boyne City has been a functioning community of residences and businesses for more than 100 years, and during that period, business and residential uses have existed side by side. It is unrealistic to expect that the owner of a preexisting business located in an area zoned for residential uses will be willing to voluntarily discontinue the operation of the business when to do so will result in serious financial loss to the owner of the property.

Accordingly, realistic application of rules applicable to preexisting nonconforming uses and structures requires consideration of the reasonable choices facing the community.

A.

The State Zoning Enabling Act which sets forth the requirements for a local zoning ordinance requires that the ordinance provide that the lawful use of land or a structure exactly as the land or structure existed at the time of enactment of the ordinance may be continued, although that use or structure does not conform with the ordinance (MCL 125.583a [Repealed—See now MCL 125.3208]).

B.

The State Zoning Enabling Act also authorizes the local zoning ordinance to provide for the resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures upon terms and conditions provided in the ordinance.

C.

The State Zoning Enabling Act authorizes the local zoning ordinance to provide for special land uses which shall be permitted in a zoning district after review and approval by the planning commission provided that the ordinance specify those special land uses and activities eligible for approval consideration, the requirements and standards upon which decisions for special land uses shall be based and the procedures and supporting materials required for application, review and approval. The words "special land uses" as used in the Enabling Statute are equivalent to the words "conditional uses" as used in the Boyne City Zoning Ordinance. (MCL 125.584a(MCL 125.583a) [Repealed—See now MCL 125.3502]).

D.

It is recognized that some preexisting nonconforming uses or structures, while not in conformance with the requirements of the zoning district in which located, are not detrimental to the neighborhood where the activity or structure has been in use for many years and long accepted. An extension or expansion of such uses may, in some cases, not be detrimental to the neighborhood.

E.

It is recognized that the continuation of a preexisting nonconforming use as it presently exists may be quite detrimental to the neighborhood, but could be voluntarily changed to some other use by the property owner which, although not a use allowable in the zoning district, would be considerably less offensive than the present use; and, therefore, a desirable goal for improvement of the community.

Accordingly, it is the expressed intent of this ordinance to authorize wide latitude to the Boyne City planning commission to aid in reviewing and resolving problems associated with nonconforming uses and structures and to grant to the planning commission discretionary authority to provide for the reasonable resumption, restoration, reconstruction, extension or substitution of nonconforming uses or structures as legal conditional uses when the requirements and standards set forth hereafter are satisfied.

Any lot or lawful use of land or a structure existing on the passage date of this zoning ordinance, or on the passage date of any future amendments which may be made to this zoning ordinance, and located in a district in which it would not be permitted, or prohibited, regulated, restricted, or otherwise unlawful as a new use or otherwise under the regulations of this zoning ordinance is declared to be a nonconforming lot, use, or structure and not in violation of this zoning ordinance. However, a nonconforming use shall be subject to, and the owner shall comply with, the regulations in this zoning ordinance.

It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such nonconforming uses and structures are declared by this chapter to be incompatible with permitted uses in the districts involved. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Nonconforming uses are considered to present a greater public burden than nonconforming lots and structures, therefore the intent of this ordinance to gradually eliminate nonconforming uses or decrease their nonconforming status, but to permit certain nonconforming structures to continue under certain conditions, discouraging their expansion or enlargement. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land shall not be extended or enlarged by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited generally in the district involved.

To avoid undue hardship, nothing in this article shall be deemed to require a change in the plans, construction or designated use of any structure on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter, and upon which actual building construction has been diligently carried on. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner except that where demolition or removal of an existing structure has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the structure involved.

Where, on the passage date of this zoning ordinance, or on the passage date of any future amendments which may be made to this zoning ordinance, a lawful use of land exists, which uses would not be permitted or prohibited, regulated, restricted, or otherwise unlawful by the regulations imposed by this zoning ordinance, the use may be continued so long as it remains otherwise lawful provided:

A.

No such nonconforming use shall be enlarged, increased or extended to occupy a greater area of land than was occupied on the effective date of this zoning ordinance, or on the effective date of any future amendments which may be made to this zoning ordinance;

B.

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that portion occupied by such use on the effective date of this zoning ordinance, or on the effective date of any future amendments which may be made to this zoning ordinance;

C.

If any such nonconforming use of land ceases for any reason for a period of more than one year, such land shall conform to the regulations specified by this zoning ordinance for the district in which such land is located;

D.

Those alleged nonconforming uses which cannot be proved to have been legally existing prior to the effective date of this zoning ordinance, or on the effective date of any future amendments which may be made to this zoning ordinance, shall be declared illegal nonconforming uses and shall be discontinued following such effective date; [and]

E.

No additional structure not conforming to this zoning ordinance shall be erected in connection with such nonconforming use of land.

If a lawful use involving an individual structure, or a structure and premises in combination, exists on the effective date of this zoning ordinance, or on the effective date of any future amendments which may be made to this zoning ordinance, which use would not be allowed in the district in which it is located under this zoning ordinance, the lawful use may be continued so long as it remains otherwise, lawful, subject to the following:

A.

No existing structure devoted to a use not permitted by this zoning 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;

B.

Any nonconforming use may be extended throughout any part of a building which was manifestly arranged, designed, or designated for such use at the time of adoption of this zoning ordinance, or at the time of adoption of any future amendments which may be made to this zoning ordinance, but no such use shall be extended to occupy any land outside such building;

C.

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use, provided the planning commission determines that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. Whenever a nonconforming use has been changed to a conforming use, or to a use permitted in a district of greater restrictions, it shall not thereafter be changed to a nonconforming use;

D.

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 for the district in which such structure is located, and the nonconforming use may not thereafter be resumed;

E.

When a nonconforming use of a structure, or structure and premises in combination, is discontinued or ceases for one year, or for a total of 12 months during any two-year period, the structure, or structure and premises in combination, shall not thereafter be used, except in conformance with the regulations of the zoning district in which it is located. Structures occupied by seasonal uses shall be excepted from this provision; [and]

F.

Where a nonconforming use status applies to a structure and premises in combination, the removal or destruction of the entire structure, shall eliminate the nonconforming status of the land.

Where a lawful structure exists on the effective date of this zoning ordinance, or on the effective date of any future amendments which may be made to this zoning ordinance, which structure could not be built under this zoning ordinance by reasons of restrictions on 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:

A.

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity. Should such structure be altered or modified so as to eliminate, remove or lessen any or all of its nonconforming characteristics, then such nonconforming characteristics shall not be later reestablished or increased;

B.

If such structure is moved for any reason whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved;

C.

If any such nonconforming structure ceases being used for any reason for a period of more than one year, any subsequent use of such structure shall conform to the regulations specified in this zoning ordinance for the district in which such structure is located;

D.

Should such structure be destroyed by any means to an extent greater than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this article; [and]

E.

A residential nonconforming structure may be allowed to expand; provided the expansion does not increase the size of the established footprint, or the expansion is within a yard which retains compliance with the required setback and height (e.g., a home with a nonconforming front yard setback may be expanded in the rear so long as the rear yard setback remains conforming). Provided, further, that the following criteria are met for the subject structure:

1.

The cost of such work shall not exceed 50 percent of the market value of such residential structure prior to the time such work is started;

2.

The only nonconforming situation on the parcel shall be dimensional ones related to the house and/or garage; [and]

3.

Any other expansion shall be prohibited unless a variance is granted by the zoning board of appeals.

A.

In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this zoning ordinance, a single-family dwelling and customary accessory buildings may be erected on any single lot of record on the effective date of this zoning ordinance; provided such lot is located in a block on which 51 percent or more of the lots on both sides of the street are occupied by single-family dwellings. Where 51 percent or more of the existing homes are built upon a larger lot or combination of lots, a building permit will not be granted for a lot of less area or width than the size of the lots of the majority of the dwellings existing on the passage date of this zoning ordinance.

B.

In those areas where less than 51 percent of the lots are built upon in a one-block area, the provisions regarding the use of combined lots shall apply.

C.

Permission to use a single nonconforming lot as provided in this section shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district. However, yard dimensions and other requirements, not involving lot area or lot width, or both, shall conform to the regulations for the district in which the lot is located.

D.

If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record on the passage date of this zoning ordinance, and if all or part of the lots does not meet the requirements for lot width and area as established by this zoning ordinance, the lands involved shall be considered to be an undivided parcel for the purposes of this zoning ordinance. No portion of such parcel shall be used or occupied, which portion does not meet lot width and area requirements established by this zoning ordinance, nor shall any division of the parcel be made which leaves remaining any lot width or area below the requirements stated in this zoning ordinance.

A.

On any nonconforming structure, or on any portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repairs or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding 25 percent of the current state equalized valuation of the nonconforming structure or portion thereof, as the case may be; provided that the cubic content existing when it became nonconforming shall not be increased.

B.

If a nonconforming structure, or a portion of a structure containing a nonconforming use, becomes physically unsafe or unlawful due to a lack of repairs and maintenance, and is declared by the city to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.

Nothing in this zoning ordinance shall prevent the reconstruction, repair, restoration and continued use of any nonconforming building or structure damaged by fire, collapse, explosion, acts of God or acts of public enemy, subsequent to the effective date of this zoning ordinance, wherein the expense of such reconstruction does not exceed 30 percent of the state equalized valuation of the entire building or structure at the time such damage occurred, provided that all of the following apply:

A.

Such valuation shall be subject to the approval of the planning commission;

B.

Such restoration and resumption shall take place within six months of the time of such damage and it shall be completed within one year from the time of such damage; [and]

C.

Such use shall be identical to the nonconforming use permitted and in effect directly preceding such damage.

Where pending insurance claims require an extension of time, the planning commission may grant a time extension, provided that the property owner submits a certification from the insurance company attesting to the delay. Until such time as the debris from the fire damage is fully removed, the premises shall be adequately fenced or screened from access by children who may be attracted to the premises. No fee shall be charged for an appeal under this section.

Whenever a zoning district shall be changed, any then existing nonconforming use in such changed district may be continued, provided all other regulations governing the use are complied with. Whenever a nonconforming use of a building or premises has been changed to a conforming use, such use shall not thereafter be changed to a nonconforming use.

In the event any nonconforming use is discontinued for a period of one year, it shall be presumed that the owner thereof intends to abandon the right to continue or resume the same and any subsequent use shall conform to the uses permitted in the district in which the premises are located.

The owner of the property upon which the nonconforming use is located shall be entitled to submit proof of intent to the planning commission to continue the use to rebut the presumption of abandonment; however, the burden of such proof shall rest upon the property owner. If the planning commission determines that the owner did not intend to abandon the right of continuation of the nonconforming use, the owner shall be entitled to resume the use previously made.

When a nonconforming use of property is discontinued through vacancy, lack of operation or other similar conditions for a period of one year or more, thereafter no right shall exist to maintain on such property a nonconforming use unless the zoning board of appeals grants such privilege within six months after such discontinuance. No nonconforming use, if changed to a use permitted in the district in which it is located, shall be resumed or changed back to a nonconforming use.

The use of a nonconforming building or structure may be changed to another more restrictive use. Where the use of a nonconforming building or structure is hereafter changed to a more restrictive use, it shall not thereafter be changed to a use which is less restrictive.

No nonconforming use of any land or structure shall hereafter be enlarged or extended. No nonconforming building or structure shall be moved in whole or in part to another location unless such building or structure and the off-street parking spaces, yards and other open spaces provided are made to conform to all the regulations of the district in which such building or structure is to be located.

There may be a change in tenancy, ownership or management of an existing nonconforming use, provided there is no change in the nature or character of such nonconforming use.

A.

The planning commission may, from time to time, recommend to the city commission the acquisition of private property or an interest in private property that does not conform in use or structure to the regulations and restrictions of the various districts defined in this zoning ordinance, and may recommend the removal of such use or structure.

B.

Whenever the city commission has under advisement the acquisition by purchase, condemnation or otherwise, as provided by law, of any nonconforming building, structure or use, a preliminary public hearing thereon shall be held before the city commission. Not less than 15 days before the hearing, a notice of the time, place and purpose of such public hearing shall be published in a paper circulating in the city, and the city clerk shall send by mail, addressed to the owner of any such property at the address given in the last assessment roll, a written notice of the time, place and purpose of such hearing. If the cost and expense, or any portion thereof, is to be assessed to a special district, the city clerk shall be directed to furnish the city commission with a tentative special assessment district, the tentative plan of assessment, the names of the respective owners of the property in such district and the addresses of such owners as given in the last assessment roll. The city clerk shall also send the notice to the respective owners in the tentative assessment district.

C.

Whenever the city commission, after a public hearing as required in subsection (C) hereof, declares, by resolution, that proceedings be instituted for the acquisition of any property on which is located a nonconforming building, structure or use in accordance with the laws of the state, the City Charter, this zoning ordinance and other applicable ordinances of the city, the city clerk shall send, by registered mail, a certified copy of such resolution to the respective owners of the properties in any special assessment district, at the addresses given in the last assessment roll.

D.

Upon the passing of title to the private property so acquired, as provided in subsection (D) hereof, to the city, the city commission shall cause the discontinuance or removal of the nonconforming use or the removal, demolition or remodeling of the nonconforming structure. The city commission shall thereafter order such property sold or otherwise disposed of, but only for a conforming use. The city commission shall confirm the cost and expense of such project and report any less cost to the county equalization department. The city clerk shall then prepare an assessment roll in the manner provided for in the City Charter, these Codified Ordinances and other applicable ordinances of the city. Such assessment roll may, in the discretion of the city commission, be in one or more, but not more than five, annual installments.

A.

If, at any time after the adoption of this zoning ordinance, the city becomes aware of a nonconforming use, the owner of such nonconforming use shall be notified by the planning director of the provisions of this section and that his property constitutes a nonconforming use. Within 30 days after receipt of such notice, the owner shall apply for and be issued a certificate of occupancy by the city for the nonconforming use. The application for such certificate shall designate the location, nature and extent of the nonconforming use and such other details as may be necessary for the issuance of the certificate of occupancy.

B.

If the owner of a nonconforming use fails to apply for a certificate of occupancy within 30 days after receipt of such notice, the use ceases to be nonconforming and is declared to be in violation of this zoning ordinance. The city clerk and the city attorney shall take appropriate action to enjoin such violation.

C.

If the city finds, upon reviewing the application for a certificate of occupancy, that the existing use is illegal or in violation of any other ordinance or law, or if he finds that the building for which the certificate is requested has been constructed or altered for the existing use or any other use without full compliance with the building ordinance or zoning ordinance in effect at the time of construction or alteration, he shall not issue the certificate of occupancy but shall declare such use to be in violation of this zoning ordinance.

D.

Within six months after the adoption of this zoning ordinance, or any amendment thereto, the city shall prepare a record of all known nonconforming uses and occupations of lands, buildings and structures including tents and trailer coaches, existing at such time. Such record shall contain the name and address of the owner of record of such nonconforming use and of any occupant, other than the owner, the legal description of the land and the nature and extent of such use. Such list shall be available at all times in the office of the city clerk.

In any case where plans and specifications for a building or structure have been filed, which building or structure would conform with the zoning regulations in effect on the date of such filing, but not with the regulations of this zoning ordinance, and where a zoning permit for such building or structure has been issued and construction work started on the effective date of this zoning ordinance, such work may proceed, provided it is completed within one year of such date.