(a)

Purpose and intent. The purpose of this section is to provide for the regulation of nonconforming uses, buildings and structures, and to specify those circumstances under which they shall be permitted to continue.

(b)

Scope of regulations. This chapter establishes separate districts, each of which is an appropriate area for the location of the uses which are permitted in that district. It is necessary and consistent with the establishment of those districts that those nonconforming uses, buildings and structures which substantially and adversely affect the orderly development or property value of other property in the district be either discontinued, reduced to conformity as soon as the fair interests of the parties will permit, or be permitted to continue with certain restrictions.

(c)

Continuation of nonconforming use. Whenever a use, building or premises becomes a nonconforming use through a change in the zoning ordinance or district boundaries, such use may be continued although the use does not conform to the provisions of this chapter. The continuance of nonconforming uses, structures or land is subject to the following limitations:

(1)

Expansion. A building containing a nonconforming use shall be allowed a 25 percent maximum expansion based on its gross floor area, excluding any basement. Such enlargement shall be permitted provided the yard, height, landscaping, parking and loading requirements of the zoning district in which it is located are complied with.

Example computation:

N = existing gross floor area in square feet

N sq. ft. × .25 = maximum enlargement

(2)

Reconstruction/restoration.

a.

When the use of a building or structure is nonconforming and such a building or structure is destroyed by fire, explosion, or natural disaster, such building or structure must be reconstructed or restored in accordance with the applicable requirements of the zoning district in which it is located. For the purpose of this chapter, a structure shall be considered to be destroyed when the cost of restoration exceeds one-half the current assessed valuation of the building or structure prior to destruction.

b.

When a building or structure is damaged but not destroyed by fire, explosion, or natural disaster, such building or structure may be repaired or reconstructed and may subsequently have the same or a more restrictive use.

(3)

Change in use. A nonconforming use may not be changed except to a permitted use, permitted special use or conditional use in the zoning district in which it is located. A change to a permitted special use or conditional use is subject to all additional regulations and procedures as required by this chapter.

(4)

Repairs and maintenance.

a.

Ordinary repairs to a building or structure containing a nonconforming use shall be permitted provided that no structural alterations may be made in or to such building or structure except those required by law or to make the building or structure and use thereof conform to the regulations of the district in which it is located.

b.

For purposes of this chapter, "ordinary repairs" includes normal maintenance of a building or structure and other replacements of, or substitutions for, machinery or equipment. Ordinary repairs does not mean the replacement or restoration of foundations or structural elements.

(d)

Discontinuance of nonconforming use. Nonconforming uses, structures and land are not permitted to continue if such use is discontinued for more than one year. The city council may adopt, after notice by certified mail to the property owner, an amortization schedule to bring about the gradual elimination of such nonconforming use.

(e)

Nonconforming uses in general. In general, nonconforming uses shall meet the following requirements:

(1)

The existence of a nonconforming use on a part of a lot shall not be construed to establish a nonconforming use upon the entire lot.

(2)

A nonconforming building or structure may be moved in whole or in part to another location on the lot as long as said building or structure would not be nonstandard as defined in this chapter after such move is completed.

(3)

Accessory buildings and uses customarily incidental to the operation of the nonconforming use may be constructed on the property provided they are constructed according to all applicable codes and regulations and further provided that said construction does not exceed the 25 percent expansion allowed for enlargements of nonconforming uses in accordance with subsection (c)(1) of this section.

(f)

Nonstandard uses. Nonstandard uses may be continued although such uses do not conform to the provisions of this chapter. Nonstandard structures and buildings may be enlarged, extended, reconstructed or altered if such changes comply with the yard, height and parking requirements for the district in which they are located.

(g)

Effect on use which is illegal under prior law. Nothing in this chapter authorizes or permits the continuance of the use of a building, structure or premises in violation of zoning regulations in effect prior to the effective date of this chapter. Accordingly, the use shall have been lawfully established.

(Ord. No. 21-03, 8-26-2003)

(a)

Established. A board of adjustment is hereby established which may, in appropriate cases and subject to appropriate conditions and safeguards, hear appeals and grant variances and special exceptions to the terms of this chapter. Said approval shall be in accordance with the general purpose and intent of this chapter and in conformance with the general or specific rules contained herein. Members shall have permanent residency within the City of Brookings or joint jurisdiction area surrounding the City of Brookings.

(b)

Alternate terms. The city council shall also appoint a first alternate and a second alternate for a term of three years each. If a member is unable to attend a meeting, the first alternate or second alternate, in turn, shall serve in their place.

(c)

Officers. The board shall elect a chairperson and vice-chairperson from its members.

(d)

Rules. The board shall organize and adopt rules to govern its proceedings, provided, however, that such rules are not inconsistent with this code or State or Federal law.

(e)

Powers. The board of adjustment has the powers provided by law and ordinance.

(Ord. No. 21-03, 8-26-2003; Ord. No. 15-013, § 1, 8-11-2015)

The board of adjustment shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto.

(Ord. No. 21-03, 8-26-2003)

The board of adjustment shall also hear and decide petitions for variances to modify the strict application of the setback, area, height, parking or density requirements as will not be contrary to the public interest where each of the following conditions exist:

(1)

Due to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and variance shall not violate the spirit of the ordinance and substantial justice may be achieved as a result of variance.

(2)

Unique circumstances apply to the property which do not apply to other properties in the same vicinity or district.

(3)

The variance is necessary for the preservation of a property right that is substantially the same as that possessed by owners of other property in the same district.

(4)

The variance requested is the minimum variance which would alleviate the hardship.

(5)

Reasonable use of the property is not permitted under the terms of this chapter.

(Ord. No. 21-03, 8-26-2003)

Any order of the board of adjustment granting a variance or special exception shall be invalid unless the action authorized in the order is substantially completed within three years from the date of such order and such order shall expire without notice. At the expiration of said three year period, the Board may, however, extend the time period for good cause.

(Ord. No. 21-03, 8-26-2003)

The community development director is hereby authorized and directed to enforce all of the provisions of this chapter and establish rules for its administration. For such purposes, the community development director shall have the powers of a law enforcement officer. In accordance with prescribed procedures and with the approval of the city council, the community development director may appoint technical officers and inspectors and other employees who shall be authorized from time to time.

(Ord. No. 21-03, 8-26-2003)

(a)

Whenever necessary to make an inspection to enforce any of the provisions of this chapter or whenever the community development director or their authorized representative has reasonable cause to believe that there exists in any building or upon any premises an ordinance violation, the community development director or their authorized representative may enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon the community development director by this chapter provided that if such building or premises is occupied, the community development director shall first present proper credentials and request entry; and if such building or premises is unoccupied, the community development director or designee shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If such entry is refused, the community development director or their authorized representative may pursue any remedy provided by law to secure entry.

(b)

When the community development director or their authorized representative shall have first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or occupant or any other persons having charge, care or control of any building or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the community development director or their authorized representative for the purpose of inspection and examination pursuant to this chapter.

(Ord. No. 21-03, 8-26-2003)

Whenever any work is being done contrary to the provisions of this chapter, the community development director or their authorized representative may order the work stopped by notice in writing served on any persons doing or authorizing the work, and any such persons shall forthwith stop such work until authorized by the community development director or their authorized representative to proceed with the work.

(Ord. No. 21-03, 8-26-2003)

Whenever any building or structure regulated by this chapter is being used contrary to the provisions of this chapter, the community development director or their authorized representative may order such use discontinued and the structure, or portion thereof, vacated by notice served on any person using such building or structure contrary to this chapter or causing such use to be continued. Such persons shall discontinue the use within the time prescribed after receipt of such notice which requires that the structure, or portion thereof, comply with the requirements of this chapter.

(Ord. No. 21-03, 8-26-2003)

(a)

A zoning and use registration permit shall be obtained from the community development director for any of the following:

(1)

Occupancy and use of a building hereafter constructed, enlarged, relocated, reconstructed or altered.

(2)

Any change in the use of an existing building.

(3)

Occupancy and use of vacant land or change in the use of land except for an agricultural use consisting primarily of tilling the soil.

(b)

No such occupancy, use or change of use may occur until a zoning and use registration permit has been issued by the community development director. No zoning and use registration permit may be issued unless the proposed occupancy is in full conformity with all of the provisions of this chapter.

(c)

A zoning and use registration permit shall be deemed to authorize, and is required, for both the initial use and the continued occupancy and use of the building or land to which it applies. The owner or its authorized agent may be required to submit plans, drawn to scale, indicating the location of all buildings and the use conducted therein or the use of any land. The permit shall continue in effect as long as such building and the use thereof or the use of such land is in full conformity with the provisions of this chapter and any requirements made pursuant hereto. However, upon the serving of written notice by the community development director or their authorized representative of any violation of the zoning ordinance with respect to any building or the use thereof or the use of such land, the zoning and use registration permit for such use shall be null and void, and a new zoning and use registration permit shall be required for any further use of such building or land.

(d)

A zoning and use registration permit shall be required for all lawful nonconforming uses of land or buildings resulting from the adoption of, or amendment to, this chapter. The permit application shall be filed with the community development director by the owner or lessee of the land or building occupied by such nonconforming use within two years of the date that such nonconforming use is created. Failure to apply may be considered evidence that such nonconforming use did not lawfully exist at the effective date of this chapter or any amendment thereto resulting in such nonconforming use.

(Ord. No. 21-03, 8-26-2003)