The purpose of this article is to define and regulate different types of nonconformities with the intent that ultimately most nonconformities will be mitigated or brought into compliance with the requirements of this chapter. This article declares that nonconformities are incompatible with surrounding conforming properties. Consequently, such nonconformities should be removed or mitigated. Their continued unmitigated existence should be discouraged and they should not be enlarged upon, expanded, or extended.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Abandoned shall mean the discontinuance of a nonconforming use for a period of six (6) continuous months or more. Cessation of a use due to damage caused by fire, explosion, or other catastrophe does not constitute abandonment unless there is no action to commence restoration within twelve (12) months of the incident. Any period of discontinuance of a commercial or industrial use caused by strikes, or material shortages, shall not be considered in calculating the length of discontinuance.

Destroyed shall mean damage to a building caused by fire, explosion, or other catastrophe in which the costs to reconstruct or repair the building exceed more than fifty (50) percent of the value of the building immediately prior to the time the damage occurred.

Mitigation plan shall mean a strategy developed by the property owner, Planning Department Staff, and approved by the Zoning Board of Appeals to eliminate as many nonconforming aspects of a nonconforming use as possible and to alleviate or mitigate any negative impacts of the use on surrounding properties.

Nonconforming feature shall mean a characteristic of a building or property such as signs, parking, loading, landscaping, performance standards, or condition of a special/provisional use which lawfully existed prior to the enactment of the requirements of this chapter, but does not comply with the current requirements of this chapter.

Nonconforming location shall mean a use which lawfully existed prior to the enactment of the requirements of this chapter and is permitted in the zoning district, but does not meet the location requirements of the district.

Nonconforming lot shall mean a lot which lawfully existed prior to the enactment of the requirements of this chapter, but which does not meet the minimum lot size or lot width requirements of the zoning district in which it is located.

Nonconforming structure shall mean a structure or part thereof which lawfully existed prior to the enactment of the requirements in this chapter, but which is not in conformance with the zoning regulations for building bulk, dimensions, height, area, yards, or floor area ratio of the district in which it is located.

Nonconforming use shall mean a use of land or a building which lawfully existed prior to the enactment of the requirements of this chapter and which does not comply with the use restrictions of the zoning district in which it is located.

Nonconformity shall mean any nonconforming aspect of a structure, land, or use as defined in this section.

Repair, major shall mean the repair or replacement of bearing walls, fixtures, wiring, roof, or plumbing which exceeds twenty (20) percent of the replacement value of the building or structure.

Repair, minor shall mean the repair or replacement of non-bearing walls, fixtures, wiring, roof, or plumbing to an extent not exceeding twenty (20) percent of the replacement value of the building or structure.

Vacant building shall mean the cessation of all activity in a building. Said building shall not be considered vacant if the lessee of any building shall, at any time before the expiration of said lease, cease to occupy or use said building and the owner of said building is not entitled legally to regain possession of said building.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Any nonconformity lawfully existing on the effective date of this ordinance or prior zoning ordinances, but which does not conform with the regulations of this chapter, may be continued under the regulations of this article. Those violations under enforcement upon the date of adoption of this ordinance shall not be permitted to continue.

(b)

If a building or land hereafter becomes subject to the provisions of this ordinance, whether by annexation to the City or otherwise, and any aspect of the use or land is nonconforming, such use or aspect of the use shall be considered a lawful nonconformity and may continue under the provisions of this article.

(c)

If a nonconformity is created by a subsequent amendment to this chapter, such nonconformity shall be considered a lawful nonconformity which may continue subject to the provisions of this article.

(d)

Any use, structure, or feature which was not lawfully established by obtaining necessary permits and/or constructed in accordance with all applicable codes at the date of adoption of this ordinance shall not be permitted to continue under the provisions of this article.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

The regulations of this article pertaining to a building occupied by a nonconforming use shall apply not only to buildings completely occupied by such a use, but shall also apply to buildings in which the nonconforming use occupies only a portion of the building.

(b)

Nothing herein contained shall be construed as prohibiting change in tenancy, ownership, or management of a nonconforming lot, use, or structure, provided such change is otherwise lawful.

(c)

Actions permitted by the Zoning Board of Appeals, or a use approved as a part of a Planned Development shall not be considered a nonconformity and shall not be subject to the provision of this article, provided that any nonconforming use granted an extension of a termination date by said Board under the provisions of Sections 37-312 and 37-312.1 of the Amended Zoning Ordinance of 1965 shall continue to be a nonconformity to the extent that it does not comply with the restrictions of the zoning district in which it is located.

(C.B. No. 98-243, § 2, 10-20-98; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

If the City takes by eminent domain or by purchase a portion of a lot for a public right-of-way or for some other public use or purpose, and thereby renders said lot or a structure, parking lot or other permanent improvement on said lot nonconforming, the following rules shall apply:

(1)

A nonconforming lot may be developed or redeveloped for any use permitted in the district in question as long as all development regulations in said district, other than those regulating lot area and width, are complied with.

(2)

A nonconforming structure, parking lot or other permanent improvement may be continued, structurally altered, repaired, or reconstructed provided that such modifications shall not increase the nonconformity.

(b)

The City Council may grant an exemption for the construction of a parking lot that would otherwise be nonconforming under the regulations of this Chapter as a condition of an agreement to exchange City-owned property for private property needed for a public right-of-way or other public use or purpose that would support the City's exercise of eminent domain if all of the following circumstances are present:

(1)

The property being acquired by the City for the public use or purpose currently provides parking spaces that satisfy a private property's requirements for off-street parking under Article VII of this Chapter; and

(2)

The purpose of the property exchange is to provide a new location for off-street parking spaces to replace those on the property being acquired for the public use or purpose; and

(3)

The nonconformity is necessary to provide a reasonable amount of replacement parking and will not unreasonably alter the essential character of the area.

(c)

Nothing in this ordinance shall be deemed to require a change in the plans, construction, or designated use of any building or lot for which there was an approved building permit at the time of the effective date of this ordinance. Such building shall be considered a lawful nonconformity and shall be subject to the provisions of this article. A permit which has been abandoned under the provisions of Article XIII, Administration and Enforcement shall not qualify for this exemption.

(C.B. No. 2009-189, § 1, 10-6-09; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Nonconforming lots shall comply with the provisions for substandard lots in Article IV, Development Standards.

(b)

Alterations to a nonconforming structure shall not increase, extend, or expand the nonconformity.

(c)

If the part of the structure which is not in conformance is structurally damaged, demolished, removed, or declared uninhabitable, by the Neighborhood Services Department of the City, it shall not be replaced or restored unless it is in conformance with the regulations in this chapter.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18; C.B. No. 2025-037, § 1(Exh. A), 3-18-25)

(a)

Nonconforming parking and loading areas shall comply with the provisions in Article VII, Parking, Loading, and Access Drives.

(b)

Nonconforming signs shall comply with the provisions in Article VIII, Signs.

(c)

Nonconforming screening and landscaping areas shall comply with the provisions in Article X, Landscaping and Screening.

(d)

Any other nonconforming feature shall be allowed to continue to exist, but cannot be altered, enlarged, or expanded in a manner that would increase its nonconformity. The violation of any restriction or condition placed upon a nonconforming use by the Zoning Board of Appeals as a condition of an extension of the termination date of a nonconforming use, under the provisions of Sections 37-312 and 37-312.1 of the Amended Zoning Ordinance of 1965, shall be deemed to be an alteration which increases the nonconformity of the use, in violation of this section.

(e)

Any other nonconforming feature that is removed, demolished, or destroyed shall be replaced or restored only if it is conformance with the regulations in this chapter, unless the nonconforming feature is an historically significant element of a structure designated as a landmark or is located within a conservation or historic district.

(f)

The sale of merchandise or food outdoors, when not permitted by the provisions of this section shall be discontinued immediately.

(g)

Nonconforming accessory uses shall be terminated when the principal use is terminated.

(C.B. No. 98-243, § 3, 10-20-98; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Any provisional use that is nonconforming with respect to location, which is abandoned, demolished, destroyed, or declared uninhabitable, shall not be replaced or restored unless it is to a use that is permitted at that location.

(b)

Except as permitted in an approved mitigation plan, no provisional use that is nonconforming with respect to location shall be:

(1)

Expanded to another part of the building; or

(2)

Enlarged, extended, or expanded unless the use is changed to a use which is permitted at that location.

(3)

Structurally altered or undergo major repairs.

(C.B. No. 2008-201, § 2, 9-16-08; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Any use that would be required to be approved as a special use, that was legally established prior to the adoption of this ordinance, which is abandoned, demolished, destroyed, or declared uninhabitable shall not be replaced or restored unless it is approved in accordance with Article V, Provisional and Special Uses.

(b)

Any special use shall not expand into another part of the building, enlarge the building, make structural alterations, or make major repairs unless approved in accordance with Article V, Provisional and Special Uses.

(C.B. No. 2008-201, § 2, 9-16-08; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Any lawful use of land which becomes nonconforming as a result of the adoption of this ordinance, annexation, or subsequent amendments, may be continued only for a period of five (5) years from the date upon which such use becomes nonconforming.

(b)

The term "use of land" includes both principal and accessory uses and refers not only to the use of bare or unimproved land, but also to any use of land which involves a structure or involves an accessory structure but no principle structure. Temporary structures or manufactured homes that are not part of a unified development shall be considered accessory buildings.

(c)

Any nonconforming use of land that is abandoned or discontinued shall not be resumed unless it complies with the provisions of this chapter.

(d)

Any nonconforming use of land shall not expand on the zoning lot or move to another portion of the zoning lot unless it complies with the provisions of this chapter.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

If a nonconforming use of a structure is abandoned as defined in section 37-632, or the structure containing said use is demolished, destroyed, or declared uninhabitable by the Neighborhood Services Department of the City, then said nonconforming use shall not be resumed at that location.

(b)

If a structure with a nonconforming use is damaged by fire, explosion, or other catastrophe, but is not destroyed, then repairs to the structure will be allowed within twelve (12) months from the date the damage was incurred.

(c)

Any nonconforming use of a structure shall not expand into any other portion of the structure unless it complies with the provisions of this chapter.

(d)

No major repair or structural alteration may be made to any portion of a structure which contains a nonconforming use if the effect of said major repair or alteration is to extend the life of that portion of the structure.

(e)

Any structure with a nonconforming use may not change to another use unless the new use complies with the provisions of this chapter.

(f)

Any nonconforming, nonresidential use of a structure may continue only in the manner and to the extent provided in Division V of this Article.

(C.B. No. 98-243, § 4, 10-20-98; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

a)

If a structure containing a non-conforming use in the IT-SF1 or IT-SF2 Zoning District is Destroyed as defined herein, and the structure was originally constructed for said use, the use may be re-established in the District under the following provisions:

i.

The new use and structure is subject to approval of a Planned Development under the provisions of this Chapter.

ii.

The new structure may not exceed the size of the original structure destroyed in terms of building footprint and height.

b)

The re-established use and structure shall meet all other applicable requirements of the Chapter except as where provided as flexibility within an approval of a Planned Development.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The reconstruction of the nonconforming use must commence within the first twelve (12) months following the day on which the nonconforming use was destroyed.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The burden of establishing a legal nonconformity is to be met by the owner or party seeking to apply the provisions of this chapter. The following items may constitute sufficient proof to establish if the nonconformity was lawfully established.

(a)

Date of construction of the structure or date the use was established. Proof may consist of a certified copy of the business license or structure permit.

(b)

Continuous operation of the nonconformity. Proof may consist of affidavits signed by persons who have personal knowledge of the continuous use of the premises since said use was in conformity with the then existing zoning regulations.

(c)

Any advertisement, correspondence, or other documentation with a date identifying that the operation was legally in existence prior to adoption of this chapter, annexation, or subsequent amendments.

(d)

The date of collection or reporting of taxes, fees, or other payments that may establish the date of existence of the nonconformity.

(e)

Any other proof or documentation that can legally establish the date of existence of the nonconformity.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Properties subject to zoning enforcement for an illegal use or termination of a nonconforming use prior to the date of the adoption of this ordinance are not eligible to continue as a nonconforming use and must be cease.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The Planning Department shall notify all property owners of structures with lawfully-established nonconforming, nonresidential uses of their nonconforming status.

Such notice shall be properly served upon such owner by mail addressed to the owners at their last known address or if the letter is returned showing that it has not been delivered, by posting a copy in a conspicuous place on the property affected by such notice, and by at least one publication of such notice in a local newspaper of general circulation.

Included in the letter shall be a date by which said use shall be terminated in the absence of the submittal of a mitigation plan, and the date, two (2) years from the date of the notification, by which the property or business owner shall submit said mitigation plan for the nonconforming use of a structure. Such notice shall also contain the following:

(a)

A description of the real estate sufficient for identification.

(b)

The current zoning designation.

(c)

A description of why the property is nonconforming.

(d)

An explanation of regulations regarding nonconforming uses of structures.

(e)

If the nonconforming use is a use of land, the notice shall include a statement that such use shall be terminated within five (5) years of the date it became nonconforming.

If an owner of a nonconforming use is not notified of the nonconforming status of the use, the date of termination of the nonconforming use remains in full force and effect.

(C.B. No. 98-243, § 5, 10-20-98; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The following material shall accompany an application for a Mitigation Plan:

(a)

Application for Mitigation Plan on forms provided by the Planning Department.

(b)

Site plan meeting the requirements of this article.

(c)

A description of proposed measures to mitigate the impact of the nonconforming use and time schedule for instituting such measures.

(d)

Fee as established elsewhere in chapter 26 of the Code.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Each application for a Mitigation Plan approval shall be accompanied by a site and landscape plan (collectively, the "site plan"). The dimensions of said site plan shall not exceed twenty-four (24) inches by thirty-six (36) inches and shall be drawn to a scale which is not numerically greater than one hundred (100) feet equals one inch. The following data and information shall be included in said site plan:

(a)

The location, dimension, material, and configuration of all structures, structures, and other improvements.

(b)

A statement of the current use of the property. The owner may substitute another nonconforming use, insofar as the use proposed to be allowed through the Mitigation Plan is equal to, or is more restricted than, the classification of the former use and such substitution or addition does not increase congestion in the streets, impair the health, safety, morals or general welfare of the district in which it is located.

(c)

The location and extent of usable open space.

(d)

The location, access, and other dimensions of existing and proposed off-street parking facilities and the number and configuration of spaces to be provided.

(e)

The location, dimensions, and materials of existing and proposed sidewalks, driveways, and other impervious surfaces.

(f)

The location and intensity of illumination of any illuminated areas.

(g)

The proposed use of open space.

(h)

A landscaping plan in accordance with the requirements of Article X, Landscaping and Screening.

(i)

The location of all property lines, utilities, and related easements, including electric lines, storm drainage, sanitary sewers, and water services.

(j)

The elevation of all structures and structures to depict height.

(k)

The lot size in square feet and the dimensions thereof.

(l)

The land uses surrounding the lot(s) for which site plan approval is being sought.

(m)

A date, north arrow, scale, legal description and address of the property, and name of the development.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

(a)

Upon receipt of a complete application with the accompanying material, the Zoning Administrator shall schedule the item to be reviewed by the Zoning Board of Appeals.

(b)

The Planning Department shall give notice of the public hearing in accordance with the procedures for a Zoning Board of Appeals hearing on a variation as indicated in Article XIV, Zoning Board of Appeals.

(c)

The Zoning Administrator shall prepare a report, presenting the facts of the case to the Zoning Board of Appeals. The report shall make a recommendation to forward the case to the City Council; to approve; approve with additional requirements; or to defeat the proposed Mitigation Plan. In the event the Board defeats the proposed Mitigation Plan, the case shall not be forwarded to the City Council.

(d)

The Zoning Board shall conduct a hearing in accordance with the procedures in Article XIV, Zoning Boards of Appeals.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Before approving any Mitigation Plan, the Board shall make a favorable finding of fact, solely based upon evidence presented at the public hearing. The findings shall always include the following:

(a)

That the continued operation in accordance with the plan will not increase congestion in the streets, or impair the health, safety, morals or general welfare of the residents or other occupants of surrounding properties.

(b)

That the plan includes adequate measures to mitigate current and potential future negative impacts of the use.

(c)

That the owners are proposing no changes to the use which would potentially create additional negative impacts from the use.

(d)

That if no negative impacts of the use as currently operated are identified, the proposed mitigation plan maintains all aspects of the use as it is currently operated.

(e)

That the continuation of the nonconforming use, in consideration of the degree of land use conflict between a nonconforming use and its surrounding properties, will not diminish the value of nearby property, nor impair the public health, safety, morals or general welfare of the residents or other occupants of surrounding properties.

(C.B. No. 99-186, §§ 1, 2, 7-6-99; C.B. No. 2000-182, § 2, 7-18-00; C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The Zoning Board of Appeals will approve or defeat the proposed Mitigation Plan. Approval of the Mitigation Plan may also include additional conditions and requirements as are appropriate or necessary for the protection of the public health, safety and welfare, and to satisfy the findings required for approving a Mitigation Plan. Such conditions may include, but are not limited to the following:

(a)

Regulate the location, extent, and intensity of certain aspects of the use as appropriate.

(b)

Require additional landscaping or screening of such uses by means of fences, walls and vegetation.

(c)

Regulate vehicular access and the design and location of parking and loading areas and structures.

(d)

Require conformance to health, safety and sanitation requirements as necessary.

(e)

Regulate signs and outdoor lighting to be more compatible with the surrounding neighborhood.

(f)

Any other conditions deemed necessary to effect the purposes of this chapter.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

As part of the approval of the request for a Mitigation Plan, the Board shall complete a Certificate of Approval which shall contain the following information:

(a)

A legal description and common address of the subject property.

(b)

A statement for each finding summarizing how such finding has been satisfied.

(c)

Any conditions, safeguards, or flexible standards imposed on the Mitigation Plan as a condition of approval.

(d)

A list of mitigation measures not indicated on the site plan.

(e)

A time table for undertaking mitigation measures.

(f)

Any exhibits, including the site plan, shall be attached to the Mitigation Plan permit with a statement that the Mitigation Plan approval is conditioned on the project being operated in accordance with such plans unless specific exceptions are stated in the Certificate of Approval.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

The Mitigation Plan shall control operations of the use. Minor amendments to the approved Mitigation Plan may be made to the Zoning Administrator in writing. The Zoning Administrator shall review the written request to determine if the request qualifies as a minor amendment. The Zoning Administrator may approve the following minor amendments:

(a)

Flexibility that has been expressly provided for through the Certificate of Approval.

(b)

Minor changes that have not been specifically identified as a major amendment. Such change may only be authorized if engineering or other physical limitations of the site, not foreseen at the time the Mitigation Plan was approved, warrant such a change.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Major amendments may only be made under the procedures that are applicable to the initial approval of a Mitigation Plan. Unless accounted for in the Certificate of Approval, the following are major amendments:

(a)

A reduction in overall amount of usable open space.

(b)

A reduction in off-street loading and parking spaces by ten (10) percent.

(c)

The change in location of any structure by more than ten (10) feet in any direction.

(d)

An overall reduction in the area designated for landscaping treatment.

(e)

A change in the circulation pattern that would reduce or increase points of access, change access to another street, or increase projected traffic volumes.

(f)

A delay in the deadline to undertake any specific mitigation measure by more than six (6) months. Delays for planting of landscape for seasonal conditions shall not constitute a major amendment.

(g)

A combination of three (3) or more changes classified as minor amendments, which have not been specifically allowed by the Certificate of Approval, shall constitute a major amendment.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

If the Zoning Board of Appeals fails to approve the Mitigation Plan, the landowner may elect one of the following options:

(a)

Resubmit a new application and plan.

(b)

Appeal to City Council. If City Council disapproves the Mitigation Plan, then the application shall be referred back to the Zoning Board of Appeals to determine a termination date for the nonconforming use.

(c)

In any one case, only three (3) proposed Mitigation Plans may be submitted. If none of these plans are approved by the Board or City Council, then a date for termination of the nonconforming use must be established.

(d)

Such termination date shall be based on the severity of the impacts, the expected economic life of the structure, the market value of the investment, and any other relevant factors. In no case shall the termination date be longer than ten (10) years.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)

Failure to comply with the Mitigation Plan shall constitute a zoning violation and shall be subject to zoning enforcement action.

(C.B. No. 2018-149, § 1(Exh. A), 9-18-18)