Within the zones established by this title or subsequent amendments thereto, there exists lots, structures and uses, which were lawfully established or created, but which would be prohibited, regulated or restricted under the terms of this title or future amendments. It is the intent of this title to permit nonconforming lots, structures and uses to continue. Nonconformities are declared by this title to be incompatible with permitted uses, structure and lots in the zones involved. To avoid undue hardship, nothing in this chapter shall deemed to require a change in the plans, construction or designated use of any building on which a building permit has been issued as long as substantial construction has been started within six months of the issuance of the permit provided that work is carried out diligently.

(Ord. No. 1841, § 2(Att. B), 11-12-2013; Ord. No. 1937, § 17, 8-8-2018)

If, on or after November 16, 2001, a single lot is in separate ownership and is not contiguous with other lots owned by same owner, and if the lot is in a zone where single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected even if the lot fails to meet the zoning requirements for minimum area, or lot depth or lot width provided that the development shall conform to all other zoning requirements.

If two or more adjacent lots of record or combinations of lots and portions of lots are in single ownership as of November 16, 2001 no lot or portion of the lots shall be used or sold in a manner which diminishes compliance with lot width or depth or area requirements established by this chapter, nor shall any division of any parcel be made that creates a lot with width, or depth or area below the requirements stated in this chapter.

(Ord. No. 1841, § 2(Att. B), 11-12-2013)

Where a lawful structure exists as of November 16, 2001, that does not conform to the requirements in this title, such structure may be continued to be used and maintained so long as it remains otherwise lawful, subject to the following provisions:

A.

If a nonconforming structure or nonconforming portion of structure is destroyed by any means to an extent that its replacement cost will exceed 75 percent of its value at the time of destruction, it may only be reconstructed in conformity with the provisions of this title.

B.

Pre-existing nonconforming structures may be enlarged and/or altered if the following criterion are met:

a.

The building height will not be increased beyond the current maximum height allowed in that zone; and

b.

The current intrusion into the setback as determined by title 11 will not increase; and

c.

The expansion/enlargement will not intrude upon other applicable setback requirements; and

d.

The expansion/enlargement will not encroach within the setbacks of a floodplain, floodway, critical area, and/or other shoreline of the state; and

e.

The lot coverage maximum will not exceed the maximum allowed per title 11; and

f.

The remaining provisions of the zone are met as provided within this title.

C.

If the structure is moved for any reason, for any distance, it must be brought into conform[ity] to the regulations for the zone in which it is located.

D.

Value. The value of a nonconforming building or structure shall be determined from the International Conference of Building Officials (ICBO) building permit valuation tables in use on the date the damage occurs. The owner of a damaged building or structure may obtain an independent appraisal from a certified professional appraiser.

E.

Maintenance and alterations.

a.

Ordinary maintenance and repair of a nonconforming building or structure are allowed.

b.

Alterations required by law to meet health and safety regulations are allowed.

(Ord. No. 1841, § 2(Att. B), 11-12-2013; Ord. No. 1937, § 18, 8-8-2018)

A nonconforming use may be continued so long as it remains otherwise lawful, subject to the following provisions:

A.

Nonconforming uses may not be enlarged, extended, expanded or moved in any way except as herein allowed, nor may the structure in which it is located be enlarged or extended in any way such as by increasing square footage, increasing building or structure height or the extension thereof by the addition of accessory buildings, or other similar extension. Changes in a nonconforming use such as the addition of more employees, the addition of more or better equipment, extending the hours of operation, and other similar changes which could or do result in an intensification of a nonconforming use are allowed and conditional use permits shall not be required for making any such change or changes.

B.

When a nonconforming use is discontinued or abandoned for 12 consecutive months, the structure and land shall thereafter be used only in conformity with the regulations of the zone in which it is located. If any nonconforming use is not occupied or operated because its building has sustained damage amounting to less than 75 percent of its value, that use may be reestablished if construction of a new or repaired building begins within one year of the date the damage occurred.

C.

Conditional uses. A legal use does not become nonconforming if the zone in which it is located is changed to a zone in which a conditional use permit is required for that use. However, the use may not be altered or changed; nor, may the building or structure in which it is located be enlarged or extended without obtaining a conditional use permit. Any use legally existing prior to the effective date of this title, or prior to the effective date of subsequent amendments to the title or the official zoning map which is within the scope of uses permitted by a conditional use permit in the zone in which the property is located shall be deemed a conditional use without the necessity of a conditional use permit, provided that any expansion or alteration of said use shall conform to all regulations pertaining to conditional uses.

D.

Conversions. A nonconforming use may be converted to another nonconforming use if the Dayton Hearing Examiner issues a conditional use permit for the conversion, pursuant to the procedures of DMC title 10. The commission may issue such a conditional use permit only after finding the following:

1.

The structure housing the existing nonconforming use cannot reasonably be used for any permitted use because of its particular design; and

2.

The proposed use will be as compatible with uses permitted in the zone district as the existing nonconforming use; and

3.

Measures will be taken, where necessary, to protect the neighborhood from any detrimental effects to the public health and welfare that will or probably will result from the conversion of the nonconforming use.

In cases involving the conversion of a nonconforming use to another nonconforming use, it is not necessary for the hearing examiner to make findings as set forth in DMC 11-09.040 in addition to the findings required by this subsection.

(Ord. No. 1841, § 2(Att. B), 11-12-2013)