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Dayton City Zoning Code

ARTICLE 14

700: Nonconformities

Sec. 14.701.1 Purpose

The purpose of this Article is to:

  1. No Expansion. Ensure that nonconforming uses do not expand;
  2. Protection. Protect conforming uses from nuisances that may be associated with nonconformities; 
  3. Curtain Investment. Curtail substantial investment in nonconformities that are contrary to the purpose of this UDC; 
  4. Elimination. Eliminate substantially damaged or abandoned nonconformities whose degrees of incompatibility with adjacent lands uses are high; and 
  5. Balance. Balance the City's objective to eliminate nonconformities with a landowner’s right to maintain and make use of a nonconformity.

Effective on: 5/20/2019

Sec. 14.701.2 General Provisions

  • Types of Nonconformities. There are five general types of nonconformities addressed in this Article.
    1. Nonconforming Uses. The following uses are nonconforming uses:
      1. Uses that were lawfully established but are not currently listed as permitted or conditional uses;
      2. Uses that do not meet the requirements of Section 14.103, Specific Use Standards; and
      3. Uses that were lawfully established within a floodplain or floodway, but are no longer permitted in the floodplain or floodway.
    2. Nonconforming Structures. The following are nonconforming structures:
      1. Structures that were lawfully established but fail to meet a numerical standard in Section 14.102, Basic Districts and Standards; and
      2. Structures that were lawfully established within a floodplain or floodway, but are no longer permitted due to their location or elevation within the floodplain or floodway.
    3. Nonconforming Lots of Record. A lawfully established lot, not held in common with any other lot, that does not meet the area or other dimensional standards of this UDC, is a nonconforming lot of record. Lots that are held in common, but which individually do not meet lot area or dimensional standards, are curable nonconformities. Where a landowner owns several nonconforming lots that abut each other, they may be combined to create conforming lots or, if full conformity is not possible, they may be combined to the extent that the combination increases the degree of conformity.
    4. Nonconforming Signs. A lawfully established sign that fails to meet the applicable requirements of Section 14.205, Signs, is a nonconforming sign.
    5. Nonconforming Site Elements. The following site elements are nonconforming if there were lawfully established but do not meet the standards of Article 14.200, Design and Site Development Standards. 
      1. Building exterior material or design,
      2. Parking, loading, or stacking areas or driveways;
      3. Development landscaping or bufferyards; and
      4. Outdoor lighting.
    1. Unlawful Uses, Structures, or Signs. This Article does not legalize uses, structures, or signs that were established, constructed, or modified without the required approvals. Such uses, structures, or signs are not "legally nonconforming," but instead remain "unlawful," and are violations of this UDC and any other applicable law. Likewise, this Article does not legalize unlawful subdivisions of property that may have occurred before the effective date of this UDC.
    2. Nonconformities Created by Public Action. Any nonconforming structure or land expressly created or caused by a conveyance of privately owned land to a federal, state, or local government to serve a public purpose is conforming for the purposes of this UDC, and is not subject to the limitations of this Article. This exemption applies only in cases where private land is obtained by a governmental entity for a public purpose, through condemnation, threat of condemnation or otherwise, which creates a nonconformity in the remainder parcel in terms of setback, lot size, or other applicable standards of this UDC. This exemption does not apply to right-of-way dedication or other public conveyances of land required by the City in the course of subdivision or other routine site plan approvals.
    1. Maintenance and Alterations.
      1. Maintenance. Routine maintenance of a nonconforming structure or sign, or of a conforming structure containing a nonconforming use, is permitted, including necessary non-structural repairs, painting, change in message on a sign, and incidental alterations that do not extend or intensify the nonconforming uses or the life of the nonconforming structures.
      2. Alterations.
        1. No structural alteration shall be made to any nonconforming structure or sign or to a structure containing a nonconforming use except if:
          1. The alteration is required by law; 
          2. The alteration will result in eliminating the nonconforming use, structure, or sign; or
          3. The alteration will not maintain or increase the degree of nonconformity.
        2. For example, in regard to paragraph a.3, above, if a structure is set back three feet from a property line and this UDC requires five feet, then no portion of an addition shall come closer to the property line than the minimum required five feet.
    1. Major and Minor Nonconforming Uses and Structures. Nonconforming uses and structures are classified as major or minor, as follows:
      1. Major. Major nonconforming uses or structures are those that generate nuisances or represent such incompatibility with adjacent properties and/or the Comprehensive Plan that they should be eliminated.
      1. Minor. Minor nonconforming uses or structures are those not classified as major nonconformities.
    1. Determination of Nonconforming Status. The property owner bears the burden of demonstrating to the Director: 
      1. Classification. The classification of a nonconformity as minor; and
      2. Establishment. That a nonconformity was lawfully established.
    1. Elimination of Nonconforming Status. The owner of a nonconformity may employ the mechanisms denoted in Table 14.701.2-1, Elimination of Nonconforming Status, in an attempt to eliminate the nonconformity.
     Table 14.701.2-1, Elimination of Nonconforming Status 
     Nonconformity Mechanism to Eliminate Nonconforming Status
     UseConversion of the existing use to a conforming use. 
    Approval of a Zoning Map Amendment to a district in which the use is permitted.
    Approval of a Conditional Use Permit in accordance with Section 14.703, Conversion of Minor Nonconformities.
    StructureModification of the structure to conform.
    Approval of a Variance to allow the structure as built.
    Approval of a Zoning Map Amendment o district to which the structure would conform.
    Approval of a Conditional Use Permit in accordance with Section 14.703, Conversion of Minor Nonconformities.
     SignModification of the sign to conform. 
    Replacement of the sign with a permitted sign type
     Lot of RecordApproval of a Replat. 
    Combination of properties held in common ownership to create a conforming lot.
    Site Elements  Modification of the improvement to conform. 
     

     

    Effective on: 5/20/2019

    Sec. 14.702.1 Uses

  • All Nonconforming Uses. The following shall apply to major and minor nonconforming uses. 
    1. A nonconforming use shall not be changed to another nonconforming use.
    2. If a nonconforming use is changed to a conforming use, the nonconforming use shall not be resumed.
    3. If the use of only a portion of a building or property is changed from a nonconforming use to a conforming use, then the use of that portion of the building or property shall not be changed back to the nonconforming use.
    1. Major Nonconforming Uses.
      1. Discontinuance of a major nonconforming use for a period of six consecutive months constitutes abandonment of the use, regardless of the owner’s intent. A major nonconforming use shall not be re-established on the property after it is abandoned unless the City Council approves a Zoning Map Amendment in accordance with Sec. 14.604.2 that makes the prior use conforming.
      2. A major nonconforming use shall not be expanded, enlarged, extended, increased, or moved to occupy an area of land or building that was not used or occupied on the effective date of this UDC or any amendment that made the use nonconforming.

      3. No structures containing a major nonconforming use shall be enlarged unless the major nonconforming use is permanently discontinued.

    2. Minor Nonconforming Uses.
      1. Discontinuance of a minor nonconforming use for a period of 12 consecutive months constitutes abandonment of the use, regardless of the owner's intent. A minor nonconforming use shall not be re-established on the property after it is abandoned unless the unless the property owner converts the nonconforming use to a conforming use in accordance with Section 14.703, Conversion of Nonconformities, prior to the end of the six-month period.
      2. No minor nonconforming use shall be expanded or extended in such a way as to:
        1. Occupy any open space or landscaped area that is required by this UDC;
        2. Exceed pervious cover, intensity, or height limitations of the zoning district in which the use is located;
        3. Occupy any land beyond the boundaries of the property as it existed on the effective date of this UDC; or
        4. Displace any conforming use in the same building or on the same property.

    Effective on: 5/20/2019

    Sec. 14.702.2 Structures

  • Damage or Destruction. If a major or minor nonconforming structure is damaged or partially destroyed by any means, the structure may be restored to its original dimensions provided that: 
    1. Percentage. The damage or destruction does not exceed 50 percent of the gross floor area (GFA) of a major nonconforming structure or 66 percent of the GFA of a minor nonconforming structure;
    2. Permit. A Building Permit is obtained for repairs within six months of the date the building was damaged; 
    3. Construction. The construction is commenced within six months after obtaining the required Building Permits; and
    4. No Increase. The original nonconformity is not enlarged, increased, or extended.
  • Existing Nonconforming Structures in the Regulated Floodway. It is the intent of the City that no permanent buildings or structures be located or substantially improved in the Regulated Floodway, except according to the standards in Article 14.400, Environmental Management, and that existing nonconforming structures shall be removed upon abandonment. As such, a property with an abandoned nonconforming structure in the Regulated Floodway shall not be eligible for any development review approval until the property owner removes the abandoned nonconforming structure. 

    • Effective on: 5/20/2019

    Sec. 14.702.3 Signs

  • Damage or Destruction. If a nonconforming sign is damaged or destroyed by any means and the repair or reconstruction cost, whichever is applicable, equals or exceeds 50 percent of the fair market value of the sign at the time of the damage, it shall be removed or brought into compliance with this UDC.
  • No Message. If a nonconforming sign does not display any message for a period of six months, it shall be removed or brought into conformance with this UDC.
  • Removal. If a nonconforming sign is removed for any reason, it shall not be replaced unless the replacement sign conforms to this UDC.
  • Danger. A nonconforming sign that the Building Official determines to be a danger to public safety due to damage or wear shall be removed and shall not be replaced unless the replacement sign conforms to this UDC.
  • Removal of Certain Prohibited Signs. Signs made of materials identified in Sec. 14.205.3.C, Prohibited Sign Materials, and placed in locations identified in Sec. 14.205.3.E, Prohibited Sign Locations, shall be removed within 30 days after the effective date of this UDC.

    • Effective on: 5/20/2019

    Sec. 14.702.4 Lots

  • Combination of Lots to Increase Conformity.
    1. Combination. Where a property owner owns more than one abutting nonconforming lot of record, the lots shall be combined to create fully conforming lots prior to any other development application submittal for the property. Or, if full conformity is not possible, they shall be combined if the combination will increase the degree of conformity. 
    2. No Combination. A property owner is not required to combine lots pursuant to Paragraph A.1, above, if:
      1. The combination of lots would not address the nonconformity;
      2. The combination of lots would disrupt the lotting pattern of the street, for example, by creating an internal through on a street segment that does not include any other through lots;
      3. Two or more of the lots are developed with principal buildings, and the combination of lots would require that one or more of the buildings be torn down or the property undergo a Zoning Map Amendment in order to comply with this UDC; or
      4. The combination of lots would result in regularly shaped lots being combined into a single lot with an irregular shape, such as a flag lot.
    1. Construction on Nonconforming Lots of Record. A nonconforming lot of record that that cannot be combined with another lot in accordance with Subsection A, Combination of Lots to Increase Conformity, may be built upon if, as of the effective date of this UDC:
      1. Permitted Use. The use is permitted in the zoning district in which the lot is located; 
      2. Sufficient Frontage. The lot has sufficient frontage on a public street to provide access that is appropriate for the proposed use; and
      3. Setbacks and Height. All setbacks and height requirements are met, except that the Director may authorize a reduction of required setbacks of up to 10 percent, provided that the Director finds that the reduction does not allow a building that would be larger than a building that would be permitted on the minimum conforming lot in the zoning district.

    Effective on: 5/20/2019

    Sec. 14.702.5 Site Elements

  • Generally. Table 14.201.1-1, Design and Site Development Standards Applicability, shows when development, redevelopment, or improvements to a site require compliance with Article 14.200, Design and Site Development Standards. Over time, such development activities will have the effect of removing the majority of nonconforming site elements in the jurisdiction of this UDC; however, this Section ensures that the site elements listed in Sec. 14.701.2.A.2, Nonconforming Site Elements, that met the requirements of previous development regulations are not modified to increase their degree of nonconformity.
  • Nonconforming Driveway.
      1. Continuance. Any nonconforming driveway access is permitted to continue as a nonconforming driveway until: 
        1. Additional Access. Any additional driveway is constructed for the subject property or for the unified development of which it is a part; or
        1. Repaving or Reconstruction. The driveway requires reconstruction or repaving. 
      1. Termination. If the criteria in Subsection B., Nonconforming Driveway, are met, the nonconforming driveway shall no longer be permissible, and the Director shall require driveway access to meet the requirements of this Article 14.200. The Director may block any such nonpermissible driveways after notice is mailed to the property owner of record.
    1. Other Nonconforming Site Elements. No other nonconforming site element may be modified except to bring the site element into greater compliance with the requirements on Article 14.200. 
       

    Effective on: 5/20/2019

    Sec. 14.703.1 Purpose

    In many instances, minor nonconformities are integral parts of the City's character and function, so their continuing existence promotes the City's policy objective of protecting its neighborhoods. In these instances, the classification "nonconformity" and resulting restriction on investment may not be what the community desires. As such, the use or structure may be made conforming pursuant to this Section in order to remove the potential stigma that may be associated with the "nonconforming" designation.

    Effective on: 5/20/2019

    Sec. 14.703.2 Procedure and Decision Criteria

  • Procedure. An owner of a minor nonconforming use or structure may apply for a Conditional Use Permit (CUP) that, upon approval, has the effect of:
    1. Making the use or structure conforming; or
    2. Allows re-establishment or reconstruction of a minor nonconforming use or structure beyond the limits established in Section 14.702, Types of Nonconformities. 
  • Exclusions. This procedure only applies to minor nonconforming uses and structures and does not apply to any other type of nonconformity.
  • Decision Criteria. 
    1. Review and Decision. In determining whether to approve, approve with conditions, or deny a CUP under this Section, the review bodies shall consider the applicable review criteria in this UDC and the following: 
        1. Minimal Nonconformities. The structure or use, as conducted and managed, has minimal nonconformities and has been integrated into the neighborhood's function.
        2. Patrons and Employment. Nearby residents regularly patronize or are employed at the subject property.
        3. Nuisances. Construction or management practices eliminate nuisances such as noise, light, waste materials, unreasonably congested on-street parking, or similar conflicts.
        4. Previous Complaints.
          1. There is no material history of complaints about the structure or use; or
          2. The conditions of the CUP will eliminate the sources of the complaints.
        5. Disincentive for Maintenance. The structure or use has been maintained in good condition and its classification as a nonconformity would be a disincentive for such maintenance.
      1. Affirmative Findings. In order to approve a CUP, the final decision-making body shall make affirmative findings on all of the applicable decision criteria.
    1. Conditions. The BOA may impose conditions relative to the establishment or expansion of bufferyards, landscape areas, or other site elements, or other limitations necessary to ensure that the structure or use will not become a nuisance. 
       

    Effective on: 5/20/2019