(a)

Intent. This article is intended to permit the continuation of those lots, structures, uses, characteristics of use, or combinations thereof, which were lawful before the passage of the City Code or which at one time had been lawfully permitted under the City Code, but which would be prohibited, regulated or restricted under the terms of the current City Code or future amendments thereto. This article is designed to provide standards and guidelines for the control and management of nonconforming uses and noncomplying buildings and structures, especially in regulating changes in the use of land or in the buildings or structures, including quality, volume or intensity, location, ownership or tenancy, accessory and incidental uses, extension, enlargement, replacement, or any other change in characteristic.

It is the intent of this article to permit these nonconformities and noncompliances to continue until they are removed through discontinuance, abandonment or amortization, but not to encourage their continuation unless otherwise authorized under this article either expressly or by special permit. Such nonconforming uses and structures are declared by this article to be incompatible with permitted uses in the zoning districts involved unless the city council issues a special permit based upon evidence that special circumstances exist in accordance with the standards set forth in this article. It is further the intent of this article that nonconforming uses and structures shall not be enlarged upon, expanded, increased or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district.

(b)

Rules for interpretation. Nothing in this article shall be interpreted as authorization for, or approval of, the continuation of any illegal use of a building, structure or land or illegal structure or building that was in violation of any ordinance in effect at the time of the passage of this article or any amendments thereto. The casual, intermittent, temporary or illegal use of land, building or structure or construction of an unlawful structure shall not be a basis to establish the existence of a nonconforming use or structure. A lawful building permit issued for any building or structure prior to the enactment of this article, the construction of which is in conformity with approved site plans, if applicable, and building plans shall be deemed nonconforming under this article if the building or structure is built in full compliance with the City Code as it existed at the time of the issuance of the building permit. In the event there is a conflict with the provisions of this article and a specific amortization provision requiring the removal or modification of a nonconforming structure or discontinuance of a nonconforming use of land, the provision which requires the nonconformity to come into compliance with the current City Code the earliest shall apply.

(c)

Building and fire codes. No provision contained in this article or elsewhere in the City Code shall nullify, void, abrogate or supersede any requirement contained in a building or fire code that is duly enacted by law.

(d)

Definitions. As used in this article, the following words shall have the meaning ascribed unless the context clearly indicates otherwise:

(1)

Destroyed or destruction shall mean damage by any means, except by vandalism or other criminal or tortious act by someone other than the property owner, such that the cost to repair or reconstruct the structure exceeds 50 percent of the fair market value of the structure at the time of destruction, as established by the Brevard County Property Appraiser or by a licensed appraiser, whichever is greater.

(2)

Dwelling unit shall mean a residential living unit which serves as a person's domicile and said person has registered the unit with the Brevard County Tax Collector as homestead property.

(3)

Lot of record shall mean a lot which is part of a subdivision recorded in the official record books of Brevard County, Florida, or a parcel of land described by metes and bounds legal description, the description of which has been recorded in the official record books of Brevard County, Florida, and complies with the subdivision of land regulations of the city.

(4)

Nonconforming or nonconformity shall mean any lot, structure, use of land or structure, or characteristic of any use or structure which was lawful at the time of subdivision, construction, or commencement, as the case may be, which over time no longer complies with the City Code or other applicable law due to a subsequent change of the City Code or other law.

(5)

Structural materials shall mean any part, material or assembly of a building or structure which affects the safety of such building or structure and/or which supports any dead or designed live load and the removal of which part, material or assembly could cause, or be expected to cause, all or any portion to collapse or fail.

(Ord. No. 17-2006, § 2, 10-17-06)

(a)

Mobile home parks and single-family mobile home districts in existence on October 28, 1975, shall be permitted, provided the number of spaces shall not exceed those licensed or previously platted to such mobile home parks or districts on that date and provided further that such mobile home parks shall not exceed the limits of property also on that date under unity of title and shall be in accordance with state law.

(b)

Removal and installation of a mobile home unit shall be done only after a permit is issued for this purpose by the building official.

(Ord. No. 17-2006, § 2, 10-17-06)

The lawful use of a nonconforming structure may be continued subject to the following provisions:

(a)

No such structure may be enlarged or altered in a way which increases its nonconformity;

(b)

Any structure or portion thereof may be altered to decrease its nonconformity;

(c)

Should such structure be destroyed, it shall not be repaired or reconstructed except in conformity with the provisions of the City Code; and

(d)

Should such structure be moved for any reason for any distance whatsoever, it shall thereafter conform to the regulations of the zoning district in which it is located after it is moved.

(Ord. No. 17-2006, § 2, 10-17-06)

A nonconforming use lawfully existing at the time of the enactment of the City Code or any subsequent amendment thereto may be continued subject to the following provisions:

(a)

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the adoption or subsequent amendment of the City Code; unless such use is changed to a use permitted in the district in which such use is located;

(b)

No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the adoption or subsequent amendment of the City Code;

(c)

No additional structures which do not conform to the requirements of the City Code shall be erected in connection with such nonconforming use of land.

(Ord. No. 17-2006, § 2, 10-17-06)

If a lawful use involving individual structures, or of structures and premises in combination, exists at the adoption or subsequent amendment of the City Code, that would not be allowed in the zoning district under the terms of the City Code, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

(a)

No existing structure devoted to a use not permitted by the City Code 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 parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this article but no such use shall be extended to occupy any land outside such building;

(c)

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; and

(d)

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.

(e)

Notwithstanding subsections (a) through (d), the board of adjustment may grant a change of use (used in conjunction with a nonconforming structure and premises) from one nonconforming use to another nonconforming use which is equally or more restrictive, equally or less intensive, and equally or more compatible with the surrounding area.

(1)

An application for a change of use shall be submitted to the building official and shall include the following:

a.

The property owner's name and address, a recorded deed indicating ownership and the legal description of the property.

b.

An affidavit executed before a notary public under penalty of perjury attesting to the existing use and the date the use was established.

c.

A sealed, as-built survey or a scaled drawing of the site along with a notarized affidavit that the drawing is true and correct. Such survey shall show the dimensions, height, number of units and square footage of all structures, setback of all structures, and distances between structures.

d.

An application fee as established by the city council to be set forth in appendix B to the zoning code.

e.

Clear and convincing evidence that demonstrates that the proposed nonconforming use (used in conjunction with a nonconforming structure and premises) is as equally or more restrictive, equally or less intensive, and equally or more compatible with the surrounding area than the present nonconforming use.

(2)

The due process and notice provisions set forth in section 110-28 shall apply to all applications for change of use.

(3)

All proposed applications for change of use shall be submitted to the planning and zoning board for its study and written recommendation to the board of adjustment. Such proposal shall be submitted at least 14 days prior to the planning and zoning board meeting at which it is to be considered.

(4)

Upon receipt of the planning and zoning board's recommendation, the board of adjustment shall issue a written order certifying whether or not the proposed nonconforming use is equally or more restrictive, equally or less intensive, and equally or more compatible than the present nonconforming use. The board of adjustment shall consider the written recommendation of the planning and zoning board as part of the official record when hearing an application for change of use.

(5)

All change of use recommendations and final orders shall be based on the following relevant factors, including, but not limited to, whether the requested use:

a.

Uses less space;

b.

Has fewer employees;

c.

Requires less parking;

d.

Creates less traffic;

e.

Has fewer deliveries;

f.

Creates less noise;

g.

Creates a better benefit to the surrounding area than the previous use;

h.

Is more acceptable with the existing and future use or make up of the area;

i.

Is more normally found in a similar neighborhood; or

j.

Creates less of an impact than the present nonconforming use.

(Ord. No. 17-2006, § 2, 10-17-06)

(a)

In any zoning district in which single-family dwellings or duplexes are permitted, a single-family dwelling or duplex, and customary accessory buildings may be erected, expanded, or altered on any single lot of record, notwithstanding that such lot fails to meet the requirements for area, width, and/or depth for the applicable zoning district. For new single-family dwellings and duplexes, this provision shall only apply where yard dimensions (minimum lot coverage, minimum living area and maximum height) and setback requirements conform in all other respects with the land development regulations for the applicable zoning district. Existing one-story single-family dwellings may be expanded and altered to add a second story or ground floor addition of habitable space in conformance with the yard dimensions (minimum lot coverage, minimum living area and maximum height) and setback requirements for the applicable zoning district; or add a second story of habitable space within the existing building footprint of the existing single-family dwelling, notwithstanding the existing dwelling footprint does not conform to the minimum lot coverage, minimum living area and setback requirements.

(b)

On any developed (non-vacant) parcel of land that does not constitute a lot of record, but upon which an existing single-family dwelling or duplex was issued a certificate of occupancy by the city or county prior to August 20, 2024, said developed parcel of land shall hereby be deemed a single lot of record approved by the city in compliance with the Code. The existing single-family dwelling or duplex can be maintained, altered, expanded or reconstructed on said developed lot of record in accordance with the applicable provisions of subsection (a). This subsection does not apply to vacant parcels of land.

(Ord. No. 17-2006, § 2, 10-17-06; Ord. No. 18-2024, § 2, 8-20-24)

(a)

A nonconforming use of a building or premises which has been abandoned shall not thereafter be returned to such nonconforming use. A nonconforming use shall be considered abandoned:

(1)

When the intent of the owner to discontinue the use is apparent; or

(2)

When the characteristic equipment and the furnishings of the nonconforming use have been removed from the premises and have not been replaced by similar equipment within 180 days, unless other facts show intention to resume the nonconforming use; or

(3)

When it has been replaced by a conforming use; or

(4)

Where the use is discontinued or abandoned for a period of more than 180 consecutive days or for 18 months (545 days) during any three-year period, except where the use constitutes a dwelling unit. In the case of dwelling units, the discontinuance or abandonment period shall be 730 consecutive days (two years).

(b)

The city council may grant extensions of time for a nonconforming use of a building or premises, which would otherwise be considered abandoned pursuant to subsection (a), to continue if the abandonment was directly caused by an act of God or other emergency situation outside of the control of the property owner.

(c)

In the event a more specific abandonment, discontinuance, or amortization provision is stated elsewhere in this City Code for a specific nonconforming structure, land use, or land area, the more specific provision shall apply.

(d)

No provision contained in this article, or elsewhere in the City Code regarding the abandonment, discontinuance, or amortization of nonconforming structures or land uses shall nullify, void, or abrogate any similar provision contained in a duly executed binding development agreement approved by the city council prior to October 17, 2006.

(Ord. No. 17-2006, § 2, 10-17-06)

(a)

Reasonable routine repair and maintenance of nonconforming structures is permitted and is not a change which would terminate a nonconforming status, provided the work is necessary to keep the structure in a state of good repair. The work may include the replacement of existing materials with like materials. However, repairs and maintenance may only be authorized by the city council pursuant to section 110-200 or by the building official provided that the building official determines compliance with the following:

(1)

The repairs and maintenance comply with applicable building and fire codes.

(2)

No violation of sections 110-193, 110-194, 110-195, 110-197 exists.

(3)

The permittee shall be in compliance with all other applicable provisions of this article.

(4)

There are no pending code enforcement actions or liens existing on the subject property.

(5)

If replacement materials are involved, such replacement may not exceed 50 percent of the fair market value of the structure, as established by the Brevard County Property Appraiser or by a licensed appraiser, whichever is greater.

(b)

Nothing in this article shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official. However, this subsection shall not be construed as a means of circumventing the intent of this article calling for the elimination of nonconforming structures by allowing a nonconforming structure to be substantially rebuilt so as to extend the ordinary and natural life of a nonconforming structure.

(c)

The building official is authorized to permit structural alterations to nonconforming structures in instances where the Occupational Safety and Health Administration ("OSHA") requirements necessitate alterations, provided the alterations shall not be authorized primarily to replace deteriorated materials. Permittees shall be required to produce verification that said alterations are required by OSHA including, but not limited to, a citation to all applicable OSHA regulations and any OSHA notifications requiring the alterations.

(d)

This section does not apply to structures used for single-family dwelling or two-family dwelling purposes which structures may be renovated, repaired, or replaced in accordance with a lawfully issued building permit.

(Ord. No. 17-2006, § 2, 10-17-06)

The casual, intermittent, temporary or illegal use of land or structures, or construction of an unlawful structure, shall not be sufficient to establish the existence of a nonconforming use or structure. Such use or structure shall not be validated by the adoption of this article or amendments hereto, unless it complies with the terms of the City Code.

(Ord. No. 17-2006, § 2, 10-17-06)

(a)

The intent and purpose of this section is to recognize that there are limited and special circumstances where overall community and public policy objectives of the city encourage, and shall be served by, the continuation of some nonconforming uses of residential buildings for human occupancy provided said uses are not detrimental to the surrounding neighborhood and to the community values established in the city's comprehensive plan and city codes. The city council desires to establish specific standards for this category of special permit in order to allow the continuation of some nonconforming uses of residential buildings for human occupancy notwithstanding any contrary provisions of this article or City Code.

(b)

The city council, at a duly held public hearing, may grant a special permit to allow the continuation of a nonconforming use of a residential building for human occupancy provided the following terms and conditions are strictly satisfied:

(1)

The owner of the property on which said nonconforming use exists files a special permit application provided by the city; and

(2)

The applicant demonstrates that the continuation of said nonconforming use:

a.

Is capable of contributing in a positive way to the character and serves the needs of the community including reoccupancy for the accommodation of neighborhood walk-to-service uses, walk-to-work opportunities, and live-work spaces; reuse of buildings with architectural or historic value; and reuse of buildings that generate a significant economic benefit to the community; and

b.

Is compatible with, and not detrimental to, the surrounding neighborhood in terms of traffic, noise, parking, odor, light, intensity and land uses, hours of operation, landscaping, aesthetics, structural design, density, public safety and fire hazard; and

c.

Is consistent with the community values, objectives, and policies established in the city's comprehensive plan and City Code.

(c)

The city council may impose conditions and safeguards as a condition of approval of any special permit granted under this section.

(Ord. No. 17-2006, § 2, 10-17-06)