Defiance City Zoning Code
CHAPTER 1181
Nonconformities
1181.01 PURPOSE.
Within the districts established by this code, some lots, uses of lands or structures, or combinations thereof may exist which were lawful prior to the effective date or amendment of this code, but that are prohibited, regulated, or restricted under the terms of this code. The legitimate interest of those who lawfully established these nonconformities are herein recognized by providing for the continuance of such uses, subject to regulations limiting their completion, restoration, reconstruction, extension, and/or substitution. Nevertheless, while it is the intent of this code that such nonconformities be allowed to continue until removed, they should not be encouraged to survive, unless otherwise allowed in this chapter or specifically addressed in this code. (Ord. 8592. Passed 7-2-24.)
1181.02 GENERAL PROVISIONS.
(a) Any use, building, structure, land or premises that exists at the time of the effective date of this code that was legally established under a previous code amendment or versions may be continued although such use, building, structure, or use of land does not conform to the provisions of this code.
(b) Passage of this code in no way legalizes any illegal uses existing at the time of its adoption.
(c) An applicant for any development review procedure that deals with a nonconformity shall bear the burden of proof in demonstrating that the use was a legal nonconformity on the effective date of this code.
(d) It is not the intention herein to classify as nonconforming a use or building allowed in a district as a conditional use or structure under the regulations of this code.
(e) Zoning Registration for Nonconforming Uses. The owner or lessee of a nonconforming structure, use, or lot may register such nonconforming structure, use, or lot with the Zoning Commissioner who shall maintain a permanent record of such registrations of nonconforming uses. The Zoning Commissioner shall inspect such property and shall certify that such nonconforming use is in existence or operation on the date such registration is made.
(Ord. 8592. Passed 7-2-24.)
1181.03 NONCONFORMING USES.
Where, at the time of adoption of this code, lawful uses of land or structures exist that would not be permitted by the regulations of this code, the uses may be continued so long as they remain otherwise lawful and provided:
(a) No such nonconforming uses shall be enlarged or increased, nor extended to occupy a greater area of land that was occupied at the effective date of adoption or amendment of this code unless it complies with the provisions of Subsection 1181.03(e) Expansion of a Nonconforming Use.
(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 uses at the effective date of adoption or amendment of this code.
(c) No additional structures shall be constructed on a lot with a nonconforming use unless such new structure complies with the requirements of this code and the applicable zoning district.
(d) Change or Substitution of Nonconforming Use.
(1) The lawful use of an existing building or structure can be continued, although such use does not conform to the provisions of this code. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more restricted use (as determined by the code enforcement officer) or to a conforming use.
(2) Whenever a nonconforming use is changed to a less intensive use, such use shall not thereafter be changed to a more intensive nonconforming use.
(e) Expansion of a Nonconforming Use.
(1) Notwithstanding the foregoing provisions to the contrary, a structure containing a nonconforming residential use may be increased or improved, regardless of the applicable zoning district, provided the structure continues to be used for residential purposes only.
(2) Notwithstanding the foregoing provisions to the contrary, a structure containing a nonconforming, nonresidential use, may be increased or improved, regardless of the applicable zoning district, where the owner of such use can demonstrate through application to the Planning Commission that the manner in which the useable area of the nonconforming use will be increased or improved will have minimal adverse impact upon adjacent properties and other permitted land uses in the surrounding neighborhood or can be made compatible with the adjacent properties and the uses in the surrounding neighborhood upon compliance with specified conditions.
(3) Variances to expand a nonconforming use into a required setback or to otherwise vary a regulation that applies to the subject site shall be prohibited.
(4) The Planning Commission shall review a request to expand a nonconforming use pursuant to the variance procedure in Subsection 1165.08(d)(4) Sign Variance, and shall be subject to the review criteria of this section.
(f) Existing Use Reclassified as a Conditional Use. In the event an existing use that was permitted by right at the time the use was established is thereafter reclassified as a conditional use in the applicable district due to a zoning text amendment, such use shall be considered to be an approved conditional use without any further action. However, any subsequent change to such use shall require review and approval by the Planning Commission in accordance with this chapter and Section 1165.07 Conditional Use Permit. Such use, provided it is conditionally permitted in the applicable district, shall not be considered a nonconforming use.
(g) Termination of Nonconforming Uses.
(1) Termination of Use through Discontinuance. A nonconforming use which is discontinued for a period of one year shall not again be used except in conformity with the regulations of the district in which it is located (unless the same is in litigation and the litigation has started within the first twelve (12) months).
(2) Termination of Use by Damage or Destruction.
A. If a nonconforming single-family residential use in a nonresidential district is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot. Such reestablishment of the use shall require the issuance of a zoning permit.
B. If a nonconforming, nonresidential use in a residential district is damaged, but not to an extent greater than fifty percent (50%) of the principal structure's value, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit.
C. If a nonconforming, nonresidential use in a residential district is damaged beyond fifty percent (50%) of the principal structure's value, such structure and use may only be reestablished with approval by the Planning Commission after consideration of surrounding uses and the impact of the nonconforming use.
(h) Exceptions for Existing Industries. Nothing in this code shall prohibit the expansion of present industries at the same or adjoining properties (including across streets), provided that the land classification is the same as that of the industry, and that setback and yard dimensions are not less than those in existence around the original property at the time of enactment of this code. Lesser yard requirements for expansion of existing industries shall be determined, upon application, by the Planning Commission.
(Ord. 8592. Passed 7-2-24.)
1181.04 NONCONFORMING STRUCTURES.
A nonconforming building or structure may continue to be used or occupied by a use permitted in the applicable zoning district so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following provisions:
(a) Any nonconforming structure may be enlarged, maintained, repaired, or altered provided, however, no such enlargement, maintenance, repair or alteration shall either create an additional nonconformity or increase the degree of the existing nonconformity of all or any part of such structure, unless otherwise specified in this code.
(b) A nonconforming structure shall not 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 after being relocated.
(c) The principal use of a nonconforming building may be changed to any other use permitted in the applicable zoning district as long as the new use complies with all regulations of this code specified for such use, except the regulations to which the building did not conform prior to the change in use.
(d) The 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 nonconforming.
(e) A nonconforming trailer or mobile home, once removed, shall not be replaced by another unit, unless the replacement is installed within one week of the removal of the previous unit.
(f) Damage or Destruction of a Nonconforming Structure Containing a Conforming Use.
(1) If a nonconforming structure is damaged, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit. If an owner rebuilds a legally nonconforming structure under this provision, they may expand the structure provided, as stated in Subsection 1181.04(a), any expansion or change does not increase the nonconformity that existed prior to the damage.
(2) If a nonconforming structure is damaged beyond fifty percent (50%) of the principal structure's value, such structure shall only be rebuilt in compliance with the requirements of this code.
(3) If the owner voluntarily removes the structure or reduces the nonconformity, that has not been damaged or destroyed, that owner shall not be permitted to rebuild the structure to the original height, size, or setback. (Ord. 8592. Passed 7-2-24.)
1181.05 NONCONFORMING LOTS.
A nonconforming lot of record may be used in accordance with this section.
(a) Existing Lots of Record.
(1) Any lot of record sixty (60) feet or less, existing on the effective date of this code in any R-2 or R-3 District, may be used for the erection of a single-family dwelling even though its area and width are less than the minimum requirements set forth in this code. Each side yard shall be a minimum of five (5) feet.
(2) Any lot of record eighty-five (85) feet or less, existing on the effective date of this code in any R-1 District, may be used for the erection of a single-family dwelling even though its area and width are less than the minimum requirements set forth in this code. Each side yard shall be a minimum of eight (8) feet.
(3) Planning Commission approval shall not be required when the provisions above apply.
(b) Adjacent Existing Lots of Record.
(1) Where two (2) adjacent lots of record held by one owner do not meet the minimum yard requirements of the zoning districts in which they are located, the Planning Commission may require that the lots be combined and used for one main building.
(2) The prevailing setback requirement shall be met.
(3) Where three or more contiguous, unimproved lots of record, with less than the required area and width, are held by one owner, the Planning Commission may require the re-platting to fewer lots to permit compliance with the minimum yard requirements.
(c) Nonconforming Lots of Record in Residential Districts.
(1) 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:
A. The building shall not be enlarged in floor area unless the enlarged section complies with all regulations of this code, with the exception of the lot area and the lot width regulations.
B. The number of dwelling units shall not be increased unless in conformance with this code.
(2) In any residential district, a single-family dwelling and its customary accessory uses may be erected on a vacant single lot of record after the effective date of this code provided the buildings comply with the following:
A. The width of the side yard of any such lot need not exceed ten percent (10%) of the width of the lot, provided, however, that there shall be a minimum side yard setback of five (5) feet.
B. The rear yard setback of any such lot need not exceed twenty percent (20%) of the depth of the lot, provided, however, that the minimum rear yard setback shall be ten (10) feet.
C. Notwithstanding the above provision, any construction proposed on an existing lot of record that is a panhandle 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.
(d) Nonconforming Lots of Record in Nonresidential Districts. In any nonresidential district, a use that is permitted in the applicable district, and its customary accessory uses, may be erected on a vacant lot of record provided the buildings comply with the following:
(1) The width of the side yard of any such lot need not exceed ten percent (10%) of the width of the lot, provided, however, that there shall be a minimum side yard setback of five (5) feet.
(2) The rear yard setback of any such lot need not exceed twenty percent (20%) of the depth of the lot, provided, however, that the minimum rear yard setback shall be ten (10) feet.
(3) In no case shall a nonresidential use on a nonconforming lot of record be exempt from the provisions of Chapter 1177 Landscaping and Buffer Standards. (Ord. 8592. Passed 7-2-24.)