The purpose of this chapter is to regulate and restrict uses, structures, lots, and signs that were established legally prior to the effective date of this ordinance that no longer conform to the requirements of this ordinance or future ordinance amendments. All such situations are collectively referred to in this chapter as "nonconformities." While nonconformities may continue, this chapter is intended to achieve their eventual elimination, in order to preserve the integrity of this ordinance and the character of the City.

A.

Generally. This chapter's regulations apply to all nonconformities. Uses, buildings or structures, land, lots, signs, or other site elements described in this chapter that were illegally established or constructed are not nonconformities and the provisions of this chapter do not apply to them; they instead remain "unlawful" and are violations of this ordinance.

B.

Territorial changes. Whenever zoning district boundaries change to a different zoning district from annexation, these regulations apply to any existing nonconformity.

C.

Change of ownership or tenancy. Changes of ownership, tenancy, or management of property with an existing nonconformity are permitted, but such nonconformities shall continue to be subject to the provisions of this chapter.

D.

Exceptions.

1.

Nonconformities created by public action. Any nonconforming structure or land expressly created or caused by a conveyance of privately owned land to a federal, state, or local government to serve a public purpose is conforming for the purposes of this ordinance and is not subject to the limitations of this chapter. This exemption applies only in cases where private land is obtained by a governmental entity for a public purpose through condemnation, threat of condemnation, or otherwise, which creates a nonconformity in the remainder parcel in terms of setback, lot size, or other applicable standards of this ordinance. This exemption does not apply to right-of-way dedication or other public conveyances of land required by the City in the course of routine site plan approvals.

2.

Nonconformities created through government action. If a structure, use of land, use of structure, or characteristic of use does not comply with the requirements of this ordinance solely as a result of an acquisition of land or other action by a government agency for a public purpose, then such structure, use of land, use of structure, or characteristic of use on land not acquired by the government shall be deemed conforming.

3.

Exception due to variances, administrative adjustments, or conditional use permits. This chapter shall not apply to nonconformities that are the result of the approval of a variance, conditional use permit, or administrative adjustment and are deemed conforming for the purposes of this ordinance.

E.

Determination of nonconformity status. In all cases, the burden of establishing the existence of a legal nonconformity shall be solely upon the owner of the nonconformity, not the City.

F.

Major and minor nonconforming uses and structures. Nonconforming uses and structures are classified as major or minor, as follows:

1.

Major. Major nonconforming uses or structures are those that the Director finds have the following characteristics to such an extent that they should, over time, be eliminated:

a.

Generation of nuisances;

b.

Incompatibility with adjacent properties;

c.

Incompatibility with the Comprehensive Plan; or

d.

Generation of substantiated criminal complaints.

2.

Minor. Minor nonconforming uses or structures are those that are not classified as major nonconformities.

3.

Conversion. Refer to Section 7-1-7, Conversion of Minor Nonconformities, for provisions related to changing a minor nonconformity to a conforming use or structure.

A.

Generally. A nonconforming use is any use that:

1.

Previously nonconforming. On the effective date of this ordinance, was previously lawfully established and complied with the applicable regulations in effect at the time it was established but does not comply with the applicable regulations of this ordinance; or

2.

Nonconforming due to amendment. On or after the effective date of this ordinance, was lawfully operating according to this ordinance's provisions but, by a later ordinance text amendment became an unpermitted use in the district in which the use is located.

B.

Continuance. A lawful nonconforming use continued so long as it remains otherwise lawful, subject to the provisions of this section.

C.

Expansion or enlargement.

1.

Expansion of structure devoted to nonconforming use. An existing structure devoted to a nonconforming use shall not 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.

Expansion of nonconforming use.

a.

A nonconforming use shall not be enlarged, increased, or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance.

b.

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

D.

Relocation of nonconforming use. A nonconforming use shall not be moved in whole or in part of any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this ordinance.

E.

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

F.

Change or discontinuance of nonconforming use.

1.

Change in use. A structure, or structure and land in combination, in or on which a nonconforming use is replaced with a permitted use for any period of time, the nonconforming use shall not be resumed and the permitted use shall conform to all applicable regulations.

2.

Discontinuance or abandonment of nonconforming use.

a.

Use of a structure. When a nonconforming use of a structure or structure and premises in combination is discontinued or abandoned for six consecutive months, it shall lose its nonconforming status and the structure or structure and premises in combination shall only be used in conformance with the regulations of the district in which it is located.

b.

Use of land. If any such nonconforming use of land ceases for any reason for a period of more than 30 days, it shall lose its nonconforming status and any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.

G.

Specific uses and special exceptions. A specific use or special exception use existing prior to the effective date of this ordinance that is permitted in its entirety as a principal use in the district in which it is located under this ordinance shall remain applicable.

A.

Generally. A nonconforming lot means any existing lot created on or before the effective date of this ordinance that complied with the regulations in effect at the time of creation but that does not comply with all the regulations applicable in this ordinance.

B.

Creation of nonconforming lots prohibited. The subdivision of any land shall not result in a lot area or dimension that does not meet the minimum standards of this ordinance.

C.

Continuance. A nonconforming lot of record may be used for any use permitted in the subject zoning district and structures may be constructed, built, moved onto, expanded, reconstructed, or occupied subject to following:

1.

Access to street. The lot has direct paved access to an existing improved public or private street or alley;

2.

Ownership. The lot is in separate ownership from all adjacent and contiguous parcels, therefore preventing acquisition of the additional land area needed to comply with the standards that would normally apply to the creation of the lot, such as minimum area and width; and

3.

Compliance with other standards. Development on the lot complies with all other applicable standards of this ordinance, such as use standards and development standards.

A.

Generally. A nonconforming sign means any existing sign established on or before the effective date of this ordinance that complied with the regulations in effect at the time of development but does not comply with all the regulations applicable in this ordinance.

B.

Continuance. A nonconforming sign existing as of the effective date of this ordinance may be continued until any of the following occur:

1.

The size or shape of the sign is changed;

2.

The sign structure is altered. Alteration does not include repairs and/or maintenance;

3.

The nonconforming sign is accessory to a nonconforming use that has lost its nonconforming status; or

4.

The primary structure on the property at which the sign is located is the subject of an application for a building permit for reconstruction, remodeling, expansion, or other improvements to the primary structure on such property, and the value of the proposed improvements total more than 25 percent of its replacement cost of such primary structure.

C.

Maintenance of nonconforming signs. Nonconforming signs shall continue to be maintained in safe condition in accordance with to the building regulations of the City.

D.

Alteration, relocation, or replacement of nonconforming signs. A nonconforming sign shall not be structurally altered, relocated, or replaced unless it is brought into compliance with the provisions of this section.

E.

Reconstruction of damaged sign. If a sign and/or its support are damaged to the extent where the repair costs exceed 50 percent of the replacement cost of the sign, the sign shall be removed or brought into compliance.

A.

Generally. A nonconforming structure means any existing structure erected or modified on or before the effective date of this ordinance that complied with the regulations in effect at the time it was erected or modified but that does not comply with all the regulations applicable in this ordinance.

B.

Continuance. Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height, yards or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the provisions of this section.

C.

Enlargement, alteration, or movement.

1.

Increase in nonconformity. A nonconforming structure shall not be enlarged or altered in a way that increases its nonconformity.

2.

Moved or relocated. If a nonconforming structure is moved for any reason for any distance it shall conform to the regulations for the district in which it is located after it is moved.

D.

Damage or destruction.

1.

More than 50 percent of cost. If a nonconforming structure is damaged or destroyed by any means to an extent greater than 50 percent of its replacement cost at the time of damage or destruction, then such structure shall not be reestablished unless it is made to conform to the requirements of this ordinance.

2.

Less than 50 percent of cost. Where a nonconforming building is damaged by less than 50 percent of its replacement cost at the time of damage, it may be repaired or restored, provided any such repair or restoration is started within 12 months and is completed within 18 months from the date of partial destruction.

3.

Reconstruction costs. Reconstruction costs shall be prepared by the applicant and submitted to the Building Official for review. The cost of land or any factors other than the cost of the structure are excluded in the determination of cost of restoration for any building or activity devoted to a nonconforming use.

A.

Purpose. In many instances, minor nonconformities are integral parts of the City's character and function, so their continuing existence promotes the City's policy objective of supporting a sense of place by strengthening existing neighborhoods. In these instances, the classification "nonconformity" and resulting restriction on investment may not be what the community desires. As such, a nonconforming use or structure may be made conforming pursuant to this section in order to remove the potential stigma that may be associated with the "nonconforming" designation.

B.

Conditional use permit procedure and decision criteria.

1.

Procedure. An owner of a minor nonconforming use or structure may apply for a conditional use permit per Subsection 6-3-4.4, Conditional Use Permit, that, upon approval, has the effect of:

a.

Making the use or structure conforming; or

b.

Allows re-establishment or reconstruction of a minor nonconforming use or structure beyond the limits established in this article.

2.

Exclusions. This procedure only applies to minor nonconforming uses and structures as described in Section 7-1-2, Application, and does not apply to any other type of nonconformity.

3.

Decision criteria.

a.

In determining whether to approve, approve with conditions, or deny a CUP under this section, the review bodies shall consider the applicable review criteria in this ordinance and any one or more of the following that apply to the request:

i.

The structure or use, as constructed, conducted, and managed, is considered a minor nonconformity per Section 7-1-2, Application, and has been integrated into the neighborhood's function;

ii.

Nearby residents regularly patronize or are employed at the subject property;

iii.

Construction or management practices eliminate nuisances such as noise, light, waste materials, unreasonably congested on-street parking, or similar conflicts;

iv.

There is no material history of complaints about the structure or use; or

v.

The conditions of the CUP will eliminate the sources of the complaints.

b.

The structure or use has been maintained in good condition and its classification as a nonconformity would be a disincentive for such maintenance.

c.

In order to approve a CUP, the City Council shall make affirmative findings on all of the applicable decision criteria.

4.

Conditions. The City Council may impose conditions relative to the establishment or expansion of buffers, landscape areas, or other site elements, or other limitations necessary to ensure that the structure or use will not become a nuisance or that a nuisance will not be intensified.

C.

Force majeure.

1.

Generally. In the event of community-wide force majeure, such as a hurricane, tornado, or significant storm with flooding, or acts of public enemy, the City Council, by ordinance, may suspend all or a portion of the requirements of this chapter for an established period.

2.

Site-specific.

a.

A nonconforming use or structure that is damaged, partially destroyed, or completely destroyed by force majeure may be repaired, rebuilt, re-established, or replaced to its nonconforming condition as existed at the time of such damage or destruction.

b.

Unless a nonconforming use or structure is repaired, rebuilt, re-established, or replaced within two years of the date of the force majeure, such building shall only be repaired, rebuilt, re-established, or replaced in accordance with the provisions of this ordinance. However, if the nonconforming use or structure is in an area under a federal disaster declaration and the use or structure has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then the owner shall have an additional two years within which to complete the repairs, rebuilding, re-establishment or replacement.

Minor repairs or maintenance of nonconformities that are required to keep structures or sites in a safe condition are permitted, provided that the minor repair or maintenance does not increase the extent of nonconformity. For purposes of this section, "maintenance or minor repair" shall mean:

A.

Repairs that are necessary to maintain and to correct any damage or deterioration to the structural soundness or interior appearance of a building or structure without expanding or altering the building or structure;

B.

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

C.

Repairs that are required to remedy unsafe conditions that cause a threat to public safety.