Clinton City Zoning Code
NON-CONFORMITIES
§ 152.320 PURPOSE.
Within the districts established by this chapter, some lots, uses of lands or structures or combinations thereof may exist which were lawful prior to the effective date or amendment of this chapter, but that are prohibited, regulated or restricted under the terms of this chapter. The legitimate interest of those who lawfully established these non-conformities are herein recognized by providing for the continuance of such uses, subject to regulations limiting their completion, restoration, reconstruction, extension and/or substitution. While it is the intent of this chapter that such non-conformities be allowed to continue until removed, they should not be encouraged to survive, unless otherwise allowed in this chapter or specifically addressed in this chapter.
(Prior Code, § 1161.01) (Ord. O-18-20, passed 11-20-2018)
§ 152.321 GENERAL PROVISIONS.
(A) Any non-conforming building, structure, lot or use existing at the time of the effective date of this chapter may be continued, even though such building, structure, lot or use does not conform to the provisions of this chapter. Such non-conforming building, structure, lot or use, shall be subject to the provisions of this chapter.
(B) The lot on which there is located a non-conforming use shall not be reduced in area or width to a lot area or lot width smaller than that required within the applicable zoning district, nor shall any existing yard be reduced so as to be smaller than the minimum yard requirements thereof.
(C) Passage of this chapter in no way legalizes any illegal uses or structures existing at the time of the adoption of this chapter.
(D) If the legally non-conforming use of any dwelling, building, structure or of any land or premises is voluntarily discontinued for two years or more, any future use thereof shall be in conformity with the provisions of this chapter.
(Prior Code, § 1161.02) (Ord. O-18-20, passed 11-20-2018)
§ 152.322 NON-CONFORMITIES AND CHANGES IN USE OR VARIANCES.
(A) Whenever a non-conforming use has been changed to a conforming use, such use shall no longer be defined as a non-conforming use and the previously existing non-conforming use shall not be re-established unless otherwise authorized by this chapter.
(B) The granting of a variance for a use or structure that otherwise complies with this chapter shall not create a non-conforming use or structure when the variance is granted.
(C) When a property owner or authorized agent is granted a variance for a non-conforming use or structure that addresses the non-conformity, the use or structure shall no longer be considered non-conforming.
(D) If a property owner or authorized agent is granted a variance for a non-conforming use or structure that addresses some non-conformities but additional non-conformities continue, the use or structure shall still be considered legally non-conforming.
(Prior Code, § 1161.03) (Ord. O-18-20, passed 11-20-2018)
§ 152.323 NON-CONFORMING USES.
If at the time of adoption of this chapter, lawful uses of land or structures exist that would not be permitted by the regulations of this chapter, the uses may be continued so long as they remain otherwise lawful and provided the following.
(A) Enlarging or increasing. No such non-conforming uses shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this Zoning Code unless it complies with the provision of division (F) below.
(B) Moving. No structure containing a non-conforming use shall be moved, in whole or in part, to any portion of the lot or parcel other than that occupied by such uses at the effective date of adoption or amendment of this Zoning Code.
(C) Discontinuing, abandoning or vacating. If any such non-conforming use is discontinued, abandoned or vacated for more than two years, any subsequent use of such land or structure shall conform to the regulations specified by this Zoning Code for the applicable zoning district.
(D) Additional structures. No additional structures related to a non-conforming use shall be constructed unless such new structure complies with the requirements of this chapter and the applicable zoning district.
(E) Change of non-conforming use. A non-conforming use may be changed to another non-conforming use; provided that the proposed non-conforming use is in less conflict with the character and use of the district than the existing non-conforming use, as determined by the BZA at a public hearing.
(F) Expansion of a non-conforming use. The expansion of a non-conforming use is prohibited.
(G) Termination of non-conforming uses.
(1) Termination of use through discontinuance. When any non-conforming use is discontinued or abandoned for more than two years, any new use shall not be used except in conformity with the regulations of the district in which it is located, and the non-conforming use may not thereafter be resumed. The intent to continue a non-conforming use shall not be evidence of its continuance.
(2) Termination of use by damage or destruction.
(a) If a non-conforming residential use is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot within the same footprint of the original building. Such reestablishment of the use shall require the issuance of a zoning certificate.
(b) If any other type of non-conforming use is damaged or destroyed, the reestablishment of the non-conforming use may only be permitted if reviewed and approved by the BZA after a public hearing. The BZA shall take the following under consideration when making a determination about permitting the reestablishment of the non-conforming use:
1. The extent of damage and whether the damage is so significant as to be considered a complete structure loss (i.e., full rebuild);
2. Whether the restoration or construction could potentially create new non-conformities and/or whether such restoration or construction can reasonably eliminate some non-conformities;
3. Whether the damage or destruction was done by act of the owner or tenant, by a natural force, or some other event that was out of owner’s control;
4. That such restoration or construction is commenced within one year of the date that such notice is given; and
5. That the owner of the property in question has filed a notice of intention with the Zoning Inspector to continue the non-conforming use within six months of such destruction or damage with the Zoning Inspector.
(c) In the event that such notice is not filed, then the non-conforming use in question shall be deemed to be abandoned and subject to the two-year rule.
(Prior Code, § 1161.04) (Ord. O-18-20, passed 11-20-2018) Penalty, see § 152.999
§ 152.324 NON-CONFORMING STRUCTURES.
(A) Any non-conforming structure may be enlarged, maintained, repaired or altered; provided that no such enlargement, maintenance, repair or alteration shall create either an additional non-conformity or increase the degree of the existing non-conformity of all or any part of such structure.
(B) No non-conforming structure shall be relocated in whole or in part to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the applicable zoning district.
(C) Governmental acquisition of a portion of a lot for a public purpose that results in reduction in a required yard or building setback below that required in the applicable zoning district shall not render a structure non-conforming.
(Prior Code, § 1161.05) (Ord. O-18-20, passed 11-20-2018)
§ 152.325 NON-CONFORMING LOTS OF RECORD IN RESIDENTIAL DISTRICTS.
(A) If an existing lot of record in a residential district is occupied by a dwelling, such dwelling shall be maintained and may be repaired, modernized or altered, provided that:
(1) The building shall not be enlarged in floor area unless the enlarged section(s) complies with all regulations of this chapter, with the exception of the lot area and the lot width regulations;
(2) The number of dwelling units shall not be increased unless in conformance with this chapter;
(3) Dwelling units may be expanded without requiring any additional garage space or parking space; provided the addition does not occupy space that could be used for parking or a garage in compliance with these regulations; and
(4) The Zoning Inspector may authorize detached garages to be located not less than five feet from side and rear lot lines when the Zoning Inspector determines that compliance with the applicable setback requirements is not possible.
(B) Any construction proposed on an existing lot of record that is a flag lot which results in a proposed dwelling unit being constructed behind an existing dwelling shall be reviewed by the Planning Commission. The Planning Commission shall review the placement of the building on the lot and may require screening to protect the privacy of the existing dwelling unit.
(Prior Code, § 1161.06) (Ord. O-18-20, passed 11-20-2018)
§ 152.326 REPAIR AND MAINTENANCE.
(A) On any non-conforming structure or portion of a structure containing a non-conforming use, work may be done on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing; provided that the footprint and height of the structure as it existed, when it became non-conforming, shall not be increased.
(B) Nothing in this section shall be deemed to prevent the strengthening or restoring to 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. Where appropriate, a building permit for such activities shall be required.
(Prior Code, § 1161.08) (Ord. O-18-20, passed 11-20-2018)
§ 152.327 BURDEN OF PROOF.
An applicant for any review procedure that deals with a non-conformity shall bear the burden of proof in demonstrating that the non-conformity was legal on the date the use, structure or lot became non-conforming.
(Prior Code, § 1161.09) (Ord. O-18-20, passed 11-20-2018)