Any person who fails to perform an act required by the Zoning and Property Chapters or who commits an act prohibited by the Zoning and Property Chapters shall be guilty of a simple misdemeanor punishable by fine or shall be guilty of a municipal infraction punishable by a civil penalty as provided for in this Code of Ordinances.

   If any building, structure or sign is erected, constructed, reconstructed, altered, repaired, converted or maintained or if any building, structure, sign or land is used in violation of the Zoning and Property Chapters, the City of Denison, in addition to other remedies, shall institute any proper legal action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use; to restrain, correct or abate such violation; to prevent the occupancy of the building, structure or land; or to prevent any illegal act, conduct, business or use in or about the premises.

   The regulations imposed and the districts created by the Zoning and Property Chapters may be amended from time to time by the City Council but no such amendments shall be made without public hearing before the Council and after a report has been made upon the amendment by the Planning and Zoning Commission. At least seven (7) days’ notice of the time and place of such hearing shall be published in a newspaper having general circulation in the City. In case the Commission does not approve the change, or in the case of a protest filed with the Council against a change in district boundaries signed by the owners of twenty percent (20%) or more either of the area of the lots included in such proposed change or of those immediately adjacent thereto and within 200 feet of the boundaries thereof, such amendment shall not be passed except by the favorable vote of three-fourths (3/4) of all the members of the Council.

   Any person may submit to the Council an application requesting a change in the zoning district boundaries as shown on the Official Zoning District Map. Such application shall be filed with the zoning enforcement officer accompanied by a fee set by resolution of the Council and shall contain the following information:

      1.   The legal description and local address of the property.

      2.   The present zoning classification and the zoning classification requested for the property.

      3.   The existing use and proposed use of the property.

      4.   The names and addresses of all the owners of all property within 200 feet of the property for which the change is requested.

      5.   A statement of the reasons why the applicant feels the present zoning classification is no longer valid.

      6.   A plat showing the locations, dimensions and use of the applicant’s property and all property within 200 feet thereof, including streets, alleys, railroads and other physical features.

   All fees shall be deposited to the General Revenue Fund of the City. Failure to approve the requested change shall not be deemed cause to refund the fee to the applicant.

   As a part of an ordinance changing land from one zoning district to another zoning district or an ordinance approving a site development plan, the Council may impose conditions on a property owner which are in addition to existing regulations if the additional conditions have been agreed to in writing by the property owner before the public hearing required under this chapter or any adjournment of the hearing. The conditions must be reasonable and imposed to satisfy public needs which are directly caused by the requested change.

      1.   Purpose. The site plan review procedure provides for the administrative review, in addition to plan review required by other sections of the Denison Code of Ordinances, of projects that have potentially significant effects on traffic circulation or a significant effect on land uses on adjacent properties. The procedure provides for review and evaluation of site development features and possible mitigation of unfavorable effects on surrounding property.

      2.   Administration. The Zoning Administrator shall review, evaluate, and act on all site plans submitted pursuant to this procedure. An applicant may appeal a denial of any application to the Planning Commission and, if substantial satisfaction is not gained from such review, to the City Council.

      3.   Uses Requiring Site Plan Review. All uses indicated as subject to site plan review in Tables 167.1 through 167.6 are subject to the provisions of this section, unless otherwise subject to a special use permit procedure for specific zoning districts.

      4.   Application Requirements. An application for a site plan review may be filed by the owner(s) of a property or the owners' authorized agent with the Zoning Administrator. The application shall include the following information:

         A.   Name and address of the applicant.

         B.   Owner, address, and legal description of the property

         C.   A description of the nature and operating characteristics of the proposed use.

         D.   A site plan, drawn to a scale sufficient to permit adequate review and dimensioned as necessary, showing the following information:

            (1)   The date, scale, north point, title, name of owner, and name of person preparing the site plan.

            (2)   The location and dimensions of boundary lines, easements, and required yards and setbacks of existing and proposed buildings and site improvements.

            (3)   The location, size, and use of proposed and existing structures on the site.

            (4)   The location of all proposed site improvements, including parking and loading areas, pedestrian and vehicular access, sewers, sidewalks, utilities, service areas, fencing, screening, landscaping, and lighting.

            (5)   Location of any major site feature, including drainage and contours at no greater than five foot intervals.

            (6)   Any other information that may be required for review by the Zoning Administrator.

      5.   Erosion and Sediment Control. No clearing, grading, or construction work shall be done in any district until the necessary erosion and sediment control measures, if necessary (site land disturbance exceeds 1 acre) in accordance with an approved construction site Soil Erosion and Sedimentation Control Plan, have been provided to comply with the soil loss limit regulations adopted by the Crawford County Soil Conservation District on August 30, 1972.

      6.   Requirement of Erosion and Sediment Control Measures. When an application for a site plan review is filed, the Zoning Officer shall review the proposed construction and determine whether erosion and sediment control measures are necessary to comply with the soil loss limit regulations referred to in subsection 5 above. If the Zoning Officer determines that erosion and sediment control measures are necessary, said officer shall attach a written statement of the necessary measures to the site plan review. No clearing, grading, or construction work shall be done pursuant to a site plan until erosion and sediment control measures have been provided in compliance with the site plan review. The Zoning Officer may consult with and obtain the recommendations of the City Engineer or the Crawford County Soil Conservation District with respect to erosion and sediment control measures and may delay issuance of site plan approval and a land disturbance permit for a reasonable time for that purpose.

      7.   Storm Water Management Plan. Prior to the development of one acre or more (43,560 square feet), the Zoning Officer shall first review the proposed construction to ensure that the construction includes a connection to an existing, adequate storm sewer system. In the absence of an existing, adequate storm sewer system, the Zoning Officer shall require adequate provision for storm water management prior to issuance of an occupancy permit. Storm water management may include retention facilities and/or payment to the City by the applicant of a fee for future storm sewer outside of the applicant’s property. The Zoning Officer shall consult with the City Engineer prior to approving storm water management plans which do not connect to an existing, adequate storm sewer.

      8.   Administrative Action and Appeal. The Zoning Administrator must act upon each complete application within ten working days of filing. An applicant may appeal a denial to the Planning Commission within ten days of the action. The Planning Commission shall consider the appeal at the first available meeting after the filing of the appeal. An applicant may appeal a denial by the Planning Commission to the City Council within ten days of the Commission’s action. The City Council shall consider the appeal at the first available meeting after the filing of the appeal.

      9.   Review and Evaluation.

         A.   The Zoning Administrator (or the Planning Commission and City Council in cases of appeal) shall review and approve the site plan based on the criteria established in Table 174.1 and conformance with applicable regulations in these Zoning Regulations.

         B.   The Zoning Administrator (or the Planning Commission and City Council in cases of appeal) shall make the following findings before approval of the site plan:

            (1)   The proposed development, together with any necessary modifications, is compatible with the criteria established in Table 174.1.

            (2)   Any required modifications to the site plan are reasonable and are the minimum necessary to minimize potentially unfavorable effects.

            (3)   The site plan conforms to the Zoning Regulations.

      10.   Modification of Site Plan. The Zoning Administrator (or the Planning Commission and City Council in cases of appeal) may require modification of a site plan as a prerequisite for approval. Required modifications may be more restrictive than base district regulations and may include, but not be limited to, additional landscaping or screening; installation of erosion control measures; improvement of access or circulation; rearrangement of structures on the site; or other modifications deemed necessary to protect the public health, safety, welfare, community character, property values, and/or aesthetics.

      11.   Term and Modification of Approval.

         A.   A site plan approval shall become void two years after the date of approval, unless the applicant receives a building permit and diligently carries out development prior to the expiration of this period.

         B.   The Zoning Administrator may approve an application to modify a previously approved site plan if he/she determines that the modification does not affect findings related to the criteria set forth in Table 174.1.

         C.   The Zoning Administrator may revoke a site plan approval if he/she determines that the development is not complying with the terms and conditions of the approval. Such revocation may be appealed to the Planning Commission and City Council.

      12.   Approval to Run With Land. An approval pursuant to this section shall run with the land until the expiration date of such approval.

 

   A Board of Adjustment is established, which shall consist of five members. The terms of office of the members of the Board of Adjustment shall be as provided by statute. Members of the Board of Adjustment shall be appointed by the City Council and shall be residents of the City of Denison, Iowa. A majority of the members of the Board of Adjustment shall be persons representing the public at large and shall not be involved in the business of purchasing or selling real estate.

   The meetings of the Board of Adjustment shall be held at the call of the chair and at such other times as the Board may determine. Such chair, or in his or her absence the acting chair, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member on each question, or if absent or failing to vote, indicating that fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. The presence of four members shall be necessary to constitute a quorum.

      1.   Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the Zoning Enforcement Officer or of any other administrative officer in the enforcement of the Zoning and Property Chapters or of the state zoning laws. Each appeal shall be taken within a reasonable time as provided by the rules of the Board. The Zoning Enforcement Officer and any other officer whose decision is the subject of the appeal shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from is taken.

      2.   An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Enforcement Officer certifies to the Board, after notice of appeal shall have been filed with him or her, that, because of the facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application on notice to the Zoning Enforcement Officer and on due cause shown.

      3.   The Board shall fix a reasonable time for the hearing on the appeal, shall give public notice thereof as well as due notice to the parties in interest, and shall decide the appeal within a reasonable time. At the hearing any party may appear in person or by agent or by attorney. Before an appeal is filed with the Board of Adjustment, the appellant shall pay a fee to the City Clerk in the amount specified by the City of Denison Schedule of Civil Penalties and Fees in the appendix of the City Code.

   The Board of Adjustment shall have the power and duty to:

      1.   Hear and decide appeals taken pursuant to Section 174.09.

      2.   Grant a variance in the regulations of the Zoning and Property Chapters that will not be contrary to the public interest, where owing to special conditions a literal enforcement of the regulations will result in unnecessary hardship, and so that the spirit of the chapters shall be observed and substantial justice done. To establish unnecessary hardship a property owner must show all of the following elements:

         A.   The land in question cannot yield a reasonable return from any use permitted by the regulations of the district in which the land is located. Failure to yield a reasonable return may only be shown by proof that the owner has been deprived of all beneficial or productive use of the land in question. It is not sufficient merely to show that the value of the land has been depreciated by the regulations or that a variance would permit the owner to maintain a more profitable use.

         B.   The plight of the owner is due to unique circumstances not of the owner's own making, which unique circumstances must relate specifically to the land in question and not to general conditions in the neighborhood.

         C.   The use to be authorized by the variance will not alter the essential character of the locality of the land in question.

   In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation subject to enforcement under Sections 174.01 and 174.02. No appeal for a use variance shall be considered by the Board unless a proposed amendment to rezone the subject property to a district classification permitting such use has been considered and denied by the City Council within the preceding year, provided that this requirement shall not apply to appeals for area variances.

      3.   Grant a variation from the terms of Section 167.35, Floodplain/Floodway Overlay District, that will not be contrary to the public interest, where owing to special conditions a literal enforcement will result in unnecessary hardship. Any such variance granted must meet the following applicable standards, in addition to the general standards for variances set forth in subsection 2 of this section.

         A.   No variance shall be granted for any development within the FW district which would result in a significant increase in the 100-year flood level.

         B.   Variances shall only be granted upon:

            (1)   A showing of good and sufficient cause;

            (2)   A determination that failure to grant the variance would result in exceptional hardship to the appellant;

            (3)   A determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, creation of nuisances, or victimization of the public;

            (4)   A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; and

            (5)   A showing that the Iowa Department of Natural Resources has been notified of the requested variance.

      4.   Permit the exceptions in this subsection to the district regulations set forth in the Zoning and Property Chapters, provided all exceptions shall by their design, construction and operation adequately safeguard the health, safety and welfare of the occupants of adjoining and surrounding property; shall not impair an adequate supply of light and air to adjacent property; shall not unduly increase congestion in the public streets; shall not increase public danger of fire and safety; and shall not diminish or impair established property values in surrounding areas. However, nothing in this subsection shall be interpreted as authorizing the Board to grant an exception to any separation requirement, such power being expressly denied the Board. Any exception to a separation requirement granted for a structure for which a building permit has not been issued shall be null and void. In granting any exception, the Board may prescribe appropriate conditions and safeguards in conformity with these chapters. The Board of Adjustment may permit:

         A.   Exceptions to any setback, area, length, width, height, yard, size or projection limitation or to the minimum required number of off-street parking or loading spaces; provided such an exception may be granted only where:

            (1)   Such exception does not exceed 50 percent of the particular limitation or number in question; or

            (2)   Such exception is from a yard requirement to permit an addition to an existing legal non-conforming building and such addition extends no further into the required yard than the existing building;

            (3)   The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off-street parking or loading areas accessory to such a permitted use;

            (4)   The exception is reasonably necessary due to practical difficulties related to the land in question;

            (5)   Such practical difficulties cannot be overcome by any feasible alternative means other than an exception; and

            (6)   The exception is in harmony with the essential character of the neighborhood of the land in question.

         B.   Use of property for off-street parking areas accessory to permitted residential district uses where such parking areas do not immediately adjoin the permitted residential district use.

         C.   Exceptions to the minimum lot width requirement, where such lot meets the lot width at the building line and satisfies the following conditions:

            (1)   The development pattern of the lot is in harmony with the development pattern of the neighborhood in which it is located;

            (2)   The development has unique terrain, views or vegetation; and

            (3)   The development is consistent with the density of the adjoining lots.

         D.   Exceptions to the minimum design standards for single-family detached dwellings where the design of the dwelling is consistent with the design of existing dwellings in the neighborhood of the land in question, or the exception is necessary to permit the construction of a dwelling upon a lot of unusual shape or topography.

         E.   Exceptions to the time period within which a use may be resumed after a temporary discontinuance of that use, where:

            (1)   The discontinuance of the use was due to unique circumstances not of the owner's own making.

            (2)   The use to be authorized by the exception is in harmony with the essential character of the neighborhood of the land in question.

      5.   Hear and decide applications for special permits in accordance with Section 174.11 of this chapter.

      1.   Uses Allowed by Special Permit. In accordance with subsection 2 of Section 167.12, the Board of Adjustment may, by special permit after public hearing, authorize the location of buildings and uses in districts as indicated in Tables 167.1 through 167.6, provided, however, that no such special permit shall be granted authorizing any building or use in a FW district.

      2.   Application. Application for a special permit under the terms of this section shall be accompanied by evidence concerning the feasibility of the proposed request and its effect on surrounding property and shall include a site plan defining the areas to be developed for structures; the areas to be developed for parking; the locations of sidewalks and driveways and the points of ingress and egress, including access streets where required; the location and heights of walls; the location and type of landscaping; and the location, size, and number of signs. The application shall further demonstrate compliance with the general and specific standards for approval of a special permit under subsection 3 of this section.

      3.   Review. The Board of Adjustment shall have the power and duty to approve a special permit for a proposed use if it finds that the applicant has demonstrated that the design, construction and manner of operation of the proposed use will substantially conform to the standards set forth below:

         A.   General. Any structure or use of land to be allowed by a special permit shall by its design, construction and operation adequately safeguard the health, safety and welfare of the occupants of adjoining and surrounding property; shall not unduly increase congestion in the public streets; shall not increase public danger of fire and safety; and shall not diminish or impair established property values in surrounding areas, and shall have no significant detrimental impact on the use and enjoyment of adjoining properties.

         B.   Bulk Standards. Any deviation from the district bulk standards applicable to uses allowed by the district regulations must be reasonably necessary due to practical difficulties related to the land or type of use in question; and, such practical difficulties cannot be overcome by any feasible alternative means.

         C.   Residential Setback. Adequate setbacks shall be provided to protect adjacent residentially zoned property from non-residential and institutional uses.

         D.   Architectural Character. New buildings and alterations to existing buildings located in or adjacent to existing developed areas shall be compatible with the existing architectural character of such areas. Compatibility may be achieved through techniques such as the repetition of roof lines, the use of similar proportions in building mass and outdoor spaces, similar relationships to the street, similar window and door patterns, and/or the use of building materials that have color shades and textures similar to those existing in the immediate area of the proposed development. Brick and stone masonry shall be considered compatible with wood framing and other materials.

         E.   Building Mass. New buildings and alterations to existing buildings shall be either similar in size and height, or if larger, shall be articulated, setback or subdivided into massing that is proportional to the mass and scale of other structures on the same block and adjoining blocks. Articulation may be achieved through variation of roof lines, setbacks, patterns of door and window placement, and the use of characteristic entry features. To the maximum extent feasible, the height, setback and width of new buildings and alterations to existing buildings should be similar to those of existing buildings on the same block. Taller buildings or portions of buildings should be located interior to the site. Buildings at the ends of blocks should be of similar height to buildings on the adjoining blocks.

         F.   Parking. No parking should be permitted in a required front yard of an "R" district unless shown to be compatible with the adjoining land use. Parking lots containing more than eight parking spaces should comply with the adopted landscape standards applicable to commercial development in the C-1 district, unless a higher standard is applicable under the site plan regulations.

      4.   Conditions and Safeguards. In granting any special permit under the terms of this section, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the special permit is granted, shall result in revocation of the special permit.

      5.   Change in Use or Site Plan. If a special permit is granted under the terms of this section, any change thereafter in the approved use or site plan shall be resubmitted and considered in the same manner as the original proposal.

      1.   Uses of land, structures and uses of structures which would otherwise be prohibited under the Zoning and Property Chapters but have been allowed by the granting of an exception or variance or have been allowed as a special permit may continue until such exception, variance or special permit lapses as provided in this section.

      2.   If any such use of land or of a structure is not commenced within two years of the allowance of the variance, exception or conditional use, whichever is later, or is discontinued for a period of one year, such variance, exception or conditional use shall lapse, and any subsequent use of such land or structure shall conform to the district regulations for the district in which such land or structure is located.

      3.   In the event the construction of any such structure is not commenced within two years of the issuance of the variance, exception or special permit for such structure, whichever is later, and diligently pursued to completion, such variance, exception or special permit shall lapse, and any subsequent use of such land shall conform to the district regulations for the district in which such land is located. If any such structure is destroyed by any means to an extent of 60 percent or more of its replacement cost at the time of destruction, it shall not be reconstructed; any such variance, exception or special permit for such structure shall lapse; and any subsequent use of such land shall conform to the district regulations for the district in which such land is located.

      1.   In exercising the powers mentioned in Section 174.10, the Board of Adjustment may, in conformity with the provisions of law, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determinations as it believes proper, and to that end shall have all the powers of the Zoning Enforcement Officer. The concurring vote of four of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Enforcement Officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter; provided, however, that the action of the Board shall not become effective until it has filed a written decision in the board office describing the action taken, the vote of each member participating therein and the reasons for such action, specifying the manner in which the applicant either satisfied or failed to satisfy each of the applicable standards, conditions or elements set forth in Section 174.10. Decisions shall be filed promptly following the Board's action and shall be open to public inspection.

      2.   Every variation and exception granted or denied by the Board shall be supported by a written testimony or evidence submitted in connection therewith.

      3.   If any application for a variance or exception shall have been denied by the Board of Adjustment, no new application for the same relief shall be considered for two years by the Board unless the Board shall find that conditions have changed.

      4.   Any taxpayer or any officer, department, board or bureau of the City or any persons jointly or severally aggrieved by any decision of the Board may present to a court of record a petition for writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board. All decisions of the Board, except decisions granting use variances or a variance from any separation requirement shall be final immediately upon filing. Each decision granting a use variance or a variance from any separation requirement shall be referred to the City Council for review pursuant to I.C. §414.7. The City Council shall review such decision within 30 days after the decision is filed. After such review, the Council may remand the decision to the Board for further study. If the City Council does not act to review the decision within 30 days after it is filed, the decision shall become effective on the 31st day. If the City Council declines to remand a decision, that decision shall become final on the date of the Council's action. If the City Council remands a decision to the Board, the effective date of the decision is delayed for 30 days from the date of remand.

      5.   Upon remand of a decision from the City Council, the matter shall be placed on the agenda for further study at the first Board meeting after such Council action. If, for any reason, the Board does not hold a regularly scheduled meeting during such 30-day period, it shall be required to hold a special meeting and consider an act upon the remanded decision within such 30-day period. At such meeting the Board shall act to either affirm its earlier decision or grant a rehearing. A rehearing shall be treated in the same manner as an appeal pursuant to Section 174.09, except that no fee shall be payable. If the Board grants a rehearing, its initial decision shall be deemed to have been withdrawn. The Board decision on rehearing is not reviewable by the City Council and shall be final upon filing.

   Within the various districts established by the Zoning and Property Chapters or amendments that may be adopted, there exist structures and uses of land and structures which were lawful prior to the effective date of the ordinance from which said chapters derived but which would be prohibited under these chapters. It is the intent of this section to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this section to be incompatible with permitted uses in the districts involved. It is further the intent of this section that such nonconformities shall not be enlarged upon, expanded or extended.

      1.   Nonconforming Uses of Land. The lawful use of land upon which no building or structure is erected or constructed which becomes nonconforming under the terms of the ordinance from which the Zoning and Property Chapters derived or as they may be amended may be continued so long as it remains otherwise lawful, subject to the following:

         A.   No such nonconforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied at the effective date of the ordinance adopting or amending said chapters.

         B.   No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel, which was not occupied by such use at the effective date of the ordinance adopting or amending said chapters.

         C.   If any such nonconforming use of land ceases for any reason for a period of more than six months, any subsequent use of such land shall conform to the district regulations for the district in which such land is located.  

      2.   Nonconforming Uses of Structures. If a lawful use of a structure or of a structure and land in combination exists at the effective date of the ordinance adopting or amending the Zoning and Property Chapters that would not be allowed in the district under the terms of said chapters, the use may be continued so long as it remains otherwise lawful, subject to the following:

         A.   No existing structure devoted entirely or in part to a use not permitted by said chapters in the district in which it is located, except when required by law, shall be enlarged, extended, reconstructed, moved or structurally altered, unless the use is changed to a use permitted in the district in which such structure is located.

         B.   Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use on the effective date of the ordinance adopting or amending said chapters. No such use shall be extended to occupy any land outside such building.

         C.   If no structural alterations are made, a nonconforming use of a structure may be changed to another nonconforming use of a similar nature within the same or a more restricted classification. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restrictive use.

         D.   If a nonconforming use of a structure or structure and land in combination is abandoned, the use of such shall thereafter conform to the uses permitted in the district in which it is located. A use shall be deemed abandoned if while such use has been discontinued the owner of the property makes any change to the property inconsistent with the resumption of such use. Changes inconsistent with the resumption of a use include, but are not limited to: placing the property to another use; or combining two or more dwelling units under one water, gas or electric meter; creating an opening between two dwelling units.

         E.   If a nonconforming use of a structure or structure and land in combination is discontinued for more than one year for any reason, the use of such shall thereafter conform to the uses permitted in the district in which it is located.

         F.   Any structure devoted to a use made nonconforming by said chapters that is destroyed by any means to an extent of fifty percent or more of its assessed value at the time of destruction, exclusive of the foundations, shall not be reconstructed and used as before such happening. If the structure be less than fifty percent destroyed above the foundation, it may be reconstructed and used as before, provided it is done within six months of such happening and is build of like or similar materials. Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.

         G.   Notwithstanding paragraph F above, if the nonconforming structure is a single family residence, is located in a Neighborhood Commercial (C-1) or Highway Commercial (C-2) zone, and prior to the destruction of the structure, the structure had an assessed valuation in excess of $50,000, the nonconforming structure may be reconstructed in compliance with the following requirements. The reconstructed structure must conform with all setback requirements for single family residences in a Single Family Low-Density District zone. The reconstructed structure may not be altered or enlarged in a way which increases its nonconformity. Reconstruction must commence within six months of destruction and must be completed within twelve months of destruction. An extension of the twelve month completion time may be granted by the City Manager for good cause shown.

      3.   Nonconforming Structures, Including Signs. Where a structure other than a sign exists at the effective date of the ordinance adopting or amending said chapters that could not be built under the terms of the chapters because of restriction on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following:

         A.   No such structure may be enlarged or altered in a way which increases its nonconformity.

         B.   If such structure is destroyed by any means to an extent of 50 percent or more of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with this chapter. Any single-family semidetached or two-family dwelling which was a conforming structure on the effective date of this ordinance may be structurally altered, and if destroyed may be reconstructed and used as before, provided such reconstruction is commenced within six months of such destruction and diligently pursued to completion.

      1.   Nonconforming Uses of Land. The regulations governing nonconforming uses of land in any R district as described in subsection 1 of Section 174.15 shall also apply to this section.

      2.   Nonconforming Uses of Structures. If a lawful use of a structure or of a structure and land in combination exists at the effective date of the ordinance adopting or amending the Zoning and Property Chapters that would not be allowed in the district under the terms of said chapters, the use may be continued so long as it remains otherwise lawful, subject to the following:

         A.   Within the FW district, no existing structure devoted entirely or in part to a use not permitted by said chapters in the district in which it is located, except when required by law, shall be enlarged, extended, reconstructed, moved or structurally altered, unless the use is changed to a use permitted in the district in which such structure is located.

         B.   Any structure in any district other than an R or FW district devoted to a use made nonconforming by said chapters may be structurally altered or enlarged in conformity with the lot area, lot coverage, frontage, yard, height, and parking requirements of the district in which located, provided such construction shall be limited to buildings on land owned of record by the owner of the land devoted to the nonconforming use prior to the effective date of the ordinance from which this section derives. Such structural alteration or enlargement shall not authorize the substitution of a nonconforming use that is less restrictive than the one to which the structure was devoted on the effective date of the ordinance from which this section derives.

         C.   Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use on the effective date of the ordinance adopting or amending said chapters. No such use shall be extended to occupy any land outside such building.

         D.   If no structural alterations are made, a nonconforming use of a structure may be changed to another nonconforming use of a similar nature within the same or a more restricted classification. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restrictive use.

         E.   If a nonconforming use of a structure or structure and land in combination is abandoned, the use of such shall thereafter conform to the uses permitted in the district in which it is located. A use shall be deemed abandoned if while such use has been discontinued the owner of the property makes any change to the property inconsistent with the resumption of such use. Changes inconsistent with the resumption of a use include, but are not limited to: placing the property to another use; combining two or more dwelling units under one water, gas or electric meter; or creating an opening between two dwelling units.

         F.   If a nonconforming use of a structure or structure and land in combination is discontinued for more than one year for any reason whatsoever, the use of such shall thereafter conform to the uses permitted in the district in which it is located.

      3.   Nonconforming Structures. The regulations governing nonconforming structures in any R district, as described in subsection 3 of Section 174.15 shall also apply to this section.  

      1.   Nothing in these Zoning and Property Chapters shall be deemed to prevent the restoring to a 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.

      2.   Any use of land, use of structures or structures, in existence on the effective date of the ordinance from which these Zoning and Property Chapters derive which was not an authorized nonconformity under previous zoning ordinances shall not be authorized to continue its nonconforming status pursuant to said chapters or amendments to said chapters.

   The Zoning Enforcement Officer shall exercise the following powers and duties:

      1.   Exercise all enforcement powers under Sections 174.01 and 174.02, including but not limited to the investigation of complaints of zoning violations, issuance of notices and municipal infraction citations to violators, and the preparation and submission to the legal department of reports of those zoning violations which continue unabated after exhaustion of reasonable administrative remedies toward their abatement, for such legal action as the facts of each report may require.

      2.   In all cases in which the City commences court action, cooperate with the City attorney by performing such additional investigative work as the City attorney shall require.

      3.   Attend the meetings of the Planning and Zoning Commission and the Zoning Board of Adjustment as requested by those bodies, investigate and review all cases presented to the Zoning Board of Adjustment, and advise that body on those cases upon request.

      4.   If the City, after analysis of the report, institutes legal proceedings, cooperate fully with the City attorney in the perfecting of such proceedings.

      5.   The Zoning Enforcement Officer may provide a written determination regarding the application of the Zoning and Property Chapters and related land use regulations to a specific site to any person requesting such information upon receipt of a fee in the amount set in the schedule of fees adopted by the City Council by resolution.

      1.   Required for Land and Buildings. No land shall be occupied or used and no building erected or structurally altered shall be occupied or used in whole or in part for any purpose whatsoever until a Certificate of Occupancy and Compliance is issued by the Zoning Enforcement Officer, stating that the building and use comply with the provisions of the Zoning and Property Chapters and the City's building and health ordinances.

      2.   Required for Change of Use. No change of use shall be made in any building or part thereof erected or structurally altered under the purview of this zoning code without a permit being issued therefor by the Zoning Enforcement Officer. No permit shall be issued to make a change unless the changes are in conformity with the Zoning and Property Chapters.

      3.   Permit Fee. Prior to the issuance of a certificate of occupancy and compliance, the applicant shall pay to the City Clerk a fee in the amount provided by the Denison Schedule of Civil Penalties and Fees in the Appendix of this Code of Ordinances . Where applicable, such sums shall be paid to the City Clerk upon application for a building permit.

      4.   Fee Exemption for Federal Property. Application for a certificate of occupancy and compliance for property wholly owned by the federal government may be made without paying the fee described in subsection 3 above.

      5.   Nonconforming Uses.

         A.   Nothing in the occupancy permit regulations shall prevent the continuance of a nonconforming use as authorized, unless discontinuance is necessary for the safety of life or property.

         B.   A certificate of occupancy shall be required of all nonconforming uses. Application for certificate of occupancy for nonconforming uses shall be filed with the Zoning Enforcement Officer, accompanied by affidavits of proof that such nonconforming use was not established in violation of the Zoning and Property Chapters or any requirements otherwise stipulated or ordered by the Zoning Administrator.

      6.   Time Limits; Records. Certificates for occupancy and compliance shall be applied for coincidentally with the application for a building permit and shall be issued within ten days after the lawful erection or alteration of the building is completed and to the satisfaction and approval of the Zoning Administrator, with respect to the rules and regulations of this zoning code and any requirements otherwise stipulated or ordered by the Zoning Administrator. A record of all certificates shall be kept on file in the office of the Zoning Enforcement Officer, and copies shall be furnished on request to any person having a proprietary or tenancy interest in the building affected.

   No excavation for or the erection or alteration of any building shall be undertaken before a land disturbance permit, if applicable, and/or a building permit have been issued, and no building or premises shall be occupied until the certificate of occupancy and compliance permit is issued for said construction project.

   Each application for a building permit shall be accompanied by a plat in duplicate, drawn to scale, showing the actual dimensions of the lot to be built upon; the size, shape and location of the building to be erected; and other information as may be necessary to provide for the enforcement of the Zoning and Property Chapters. A record of applications and plats shall be kept in the office of the Zoning Enforcement Officer.

      1.   Definition. The term “substantial compliance”, as used in this section, shall have the following meanings, except where the context clearly indicates a different meaning. Substantial compliance includes, but is not limited to, a change:

         A.   Which does not increase the density of developments or the number of dwelling units, e.g., substituting two single-family units for a duplex, or two duplexes for a fourplex.

         B.   Affecting the off-street parking arrangement, e.g., changing the angle of parking or adding or eliminating garages, as long as any such change conforms to Chapter 172.

         C.   In the orientation of a building, as long as no yard dimension shown on the original plan is reduced by more than ten percent.

         D.   To increase open space, setbacks or landscaping materials.

         E.   In plant material.

         F.   To permit drive-up telephones, walk-up telephones or telephone booths, erected by a public service corporation, provided the location is approved by the Planning Director and the City engineer to ensure the facility does not interfere with pedestrian or vehicular circulation on the property, on adjoining property or on the public streets. Such facility shall be exempt from the bulk regulations and the development plan.

      2.   Procedures for Changing a Planned Unit Development Preliminary or Final Development Plan.

         A.   This subsection applies only to Section 167.32, Planned Unit Development District, as specifically referenced in subsection 10 of Section 167.32.

         B.   A preliminary or final development plan may be changed upon approval by the Zoning Administrator, if the Zoning Administrator determines that the change is in substantial compliance with the development plan as originally approved. Such approval shall be in writing and shall be signed by the Zoning Administrator. An applicant may request such a change by submitting the following:

            (1)   A letter from the owner of the development authorizing the change.

            (2)   A copy of the overall development plan clearly showing the change.

            (3)   Three copies of the revised development plan. If the change is to a final development plan, the revised plan shall provide clear illustration of the proposed changes for review by the Zoning Administrator. The Zoning Administrator may use his/her discretion in requiring other evidentiary or planning measures with subsections 7 and 8 of Section 167.32.

         C.   All changes to a preliminary or final development plan not deemed to be in substantial compliance with the development plan as originally approved shall be made in accordance with the procedures in effect at the time of initial approval.

(Chapter 174 - Ord. 1374 – May 10 Supp.)