Within the districts established by this ordinance or amendments that may later be adopted there exist (a) lots, (b) structures, (c) uses of land and structures, and (d) characteristics of use, which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendment. It is the intent of this ordinance to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this ordinance that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of structure and land in combination shall not be extended or enlarged after passage of this ordinance by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses, of a nature which would be prohibited generally in the district involved.

To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this ordinance and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.

In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory building may be erected on any single lot of record prior to April 23, 1981, notwithstanding lot size limitations imposed by other provisions of this ordinance. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that yard dimensions, setbacks, building size, and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the board of adjustment. Further, this ordinance shall not allow any lots, that have been re-platted, combined, or the dimensions otherwise altered after the above date, to revert back to the dimensions in existence on the above date.

(Ord. No. 81-11, § 2, 4-23-81; Ord. No. 81-12, § 2, 4-23-81; Ord. No. 2021-005, § 2, 4-8-21)

Where at the time of passage of this ordinance lawful use of land exists which would not be permitted by the regulations imposed by this ordinance, and where such use involves no individual structure with a replacement cost exceeding $1,500.00, the use may be continued so long as it remains otherwise lawful, provided:

(a)

No such nonconforming use 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 ordinance.

(b)

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this ordinance.

(c)

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

(d)

No additional structure not conforming to the requirements of this ordinance shall be erected in connection with such nonconforming use of land.

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, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

(a)

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

(b)

Should such nonconforming structure or nonconforming portion of structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.

(c)

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

If lawful use involving individual structures with a replacement cost of $1,500.00 or more, or of structure and premises in combination, exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, 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 this ordinance 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 ordinance, but no such use shall be extended to occupy any land outside such building.

(c)

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may as a special exception be changed to another nonconforming use provided that the board of adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of adjustment may require appropriate conditions and safeguards in accord with the provisions of this ordinance.

(d)

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, and the nonconforming use may not thereafter be resumed.

(e)

When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for three consecutive months or for nine months during any three-year period (except when government action impedes access to the premises), the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located.

(f)

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming use status of the land. "Destruction" for the purpose of this subsection is defined as damage to an extent of more than 50 percent of the replacement cost at time of destruction.

(a)

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing to an extent not exceeding ten percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.

(b)

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.

(c)

Where a dwelling unit is located in any district other than PUD which, under the terms of this ordinance constitutes a nonconforming structure, if thereafter such dwelling unit is destroyed or damaged to an extent that the same cannot be rebuilt or restored as a nonconforming structure under the terms of article IV of this ordinance, then the owner may rebuild or restore such dwelling unit if:

(1)

The dwelling unit was not so damaged or destroyed through the fault or action of the owner thereof;

(2)

At the time the dwelling unit was so destroyed or damaged it was occupied by the owner or tenant as his private residence;

(3)

The dwelling unit is rebuilt or restored according to its original plans and specifications; and

(4)

The building permit is applied for within 90 days from the date it was so damaged or the time it was so destroyed and the rebuilding or restoration thereof is completed within a time specified by the building official.

(d)

Where a dwelling unit is located in any district other than PUD which, under the terms of this ordinance constitutes a nonconforming structure, the owner may increase the living area of such dwelling unit by no more than 100 percent of the existing original dwelling unit living area over any consecutive five calendar years or parts thereof. Any new construction must meet set back and yard requirements for a R-1 (one-family) district.

(Ord. No. 79-22, § 2(2), 8-9-79)

Any use which is permitted as a special exception in a district under the terms of this ordinance (other than a change through board of adjustment action from a nonconforming use to another use not generally permitted in the district) shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

No use which is determined or declared to be a nuisance in the manner provided by law or is otherwise unlawful shall be regarded as a nonconforming use under this ordinance.

Cross reference— Nuisances generally, § 46-86 et seq.