This Article provides for the regulation of nonconforming lots, structures and uses and specifies those circumstances and conditions under which such nonconformities shall be permitted to continue. The ability to continue a nonconforming lot, building, structure or use shall not be affected by a change in ownership or operator of the structure or use, unless such ownership or operator is a condition attached to an approval for a special use or exception. For the purposes of these regulations, nonconformities are defined as follows:

A.

Nonconforming Lot of Record: A zoning lot which is shown by a recorded plat or deed to have been owned separately and individually from adjoining tracts of land at a time when the creation of a lot of such size and width at such location would not have been prohibited by any zoning regulations and such lot now neither complies with the lot area requirements or the width for any permitted uses in the zoning district in which it is located.

B.

Nonconforming Structure: An existing building or structure which does not comply with the maximum lot coverage and height or the minimum yard requirements which are applicable to new structures in the zoning district in which it is located.

C.

Nonconforming Use: An existing use of a structure or land which does not comply with the use regulations applicable to new uses in the zoning district in which it is located.

A.

In Any Residential District.

1.

Notwithstanding the regulations imposed by any other provisions of these regulations, a single-family detached dwelling or a residential design manufactured home which complies with the restrictions in Section 801.A.2. may be erected on a lot(s) in the same ownership and that consists entirely of a tract of land that:

a.

Has less than the prescribed minimum lot area, width or depth, or all three, and that

b.

Is shown by a recorded plat or deed to have been owned separately and individually from adjoining tracts of land at a time when the creation of a lot of such size and width at such location would not have been prohibited by any zoning regulations.

2.

Construction permitted by Section 801.A.1. shall comply with all of the regulations except lot area, width and depth applicable to single-family dwellings and residential design manufactured homes in the zoning district in which the lot in question is located; provided, however, that the following side yard requirements shall apply in place of the side yard requirements otherwise applicable:

a.

The structure shall be placed on the lot so as to provide a yard on each side of the dwelling.

b.

The sum of the widths of the two side yards on each lot shall not be less than the smaller of:

1)

20% of the width of the lot, or

2)

the minimum total for both side yards prescribed by the bulk regulations for the applicable zoning district.

c.

In any case, neither side yard resulting from the methods permitted in Section 801.A.2 shall be less than three feet wide.

B.

In Districts Other Than Residential Districts.

1.

Notwithstanding the regulations imposed by any other provision of these regulations, a structure designed for any permitted use may be erected on a lot of the type described in Section 801.A.1.

2.

Construction permitted by Section 801.B.1. shall comply with all of the regulations except lot area, width and depth applicable in the zoning district in which the lot in question is located.

A.

Authority to Continue. Any structure which is devoted to a use which is permitted in the zoning district in which it is located, but which is located on a lot which does not comply with the applicable lot size requirements and/or the applicable bulk regulations, may be continued, so long as it remains otherwise lawful, subject to the restrictions in Sections 802.B. through 802.D.

B.

Enlargement, Repairs and Alterations. Any such structure described in Section 802.A. may be enlarged, maintained, repaired or structurally altered; provided that (1) no such enlargement, maintenance, repair or alteration shall create any additional nonconformity and/or (2) no such enlargement, maintenance repair or alteration shall increase the degree of existing nonconformity of all or any part of such structure, with the specific exception that the side yard requirements of structures located on a lot that does not comply with the applicable lot size requirements shall be determined by Sections 801.A. or 801.B., whichever is applicable.

C.

Damage.

1.

In the event any structure described in Section 802.A. is damaged by any means except flooding, to the extent of more than 50% of its fair market value, such structure shall not be restored unless it shall thereafter conform to the regulations for the zoning district in which it is located; provided, that structures located on a lot that does not comply with the applicable lot size requirements shall not in any event be required to provide a side yard that exceeds the yard requirements in Sections 801.A.2. or 801.B.2., whichever is applicable.

2.

In the event any structure is damaged to the extent of 50% or less, no repairs or restoration shall be made unless a zoning certificate is obtained and restoration is actually begun within one year after the date of such partial destruction and is diligently pursued to completion.

3.

Any applicant aggrieved by the decision of the Zoning Administrator in approving the percent of damage to the value of the structure based on data submitted by the applicant may appeal such determination to the Board of Zoning Appeals. (See Section 805.)

D.

Moving. No structure described in Section 802.A. shall be moved in whole or in part for any distance to any other location on the same or any other lot, unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved. (See Section 303.M. for Moving Structures and City code on moving buildings.)

A.

Authority to Continue. Any lawfully existing nonconforming use of part or all of a structure or any lawfully existing nonconforming use of land not involving a structure or only involving a structure which is accessory to such use of land, may be continued, so long as the use is otherwise lawful and subject to the regulations contained in Sections 803.B. through 803.J.

B.

Ordinary Repair and Maintenance

1.

Normal maintenance, incidental repair or replacement, and installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring or plumbing, may be performed on any structure that is devoted in whole or in part to a nonconforming use; provided, however, that this subsection shall not be deemed to authorize any violation of Sections 803.C. through 803.J.

2.

Nothing in these regulations shall be deemed to prevent the strengthening or restoring to a safe condition of a structure in accordance with an order of a public official who is charged with protecting the public safety and who declares such structure to be unsafe and orders its restoration to a safe condition provided that such restoration will not be in violation of Section 803.F. of these regulations.

C.

Structural Alteration. No structure that is devoted in whole or in part to a nonconforming use shall be structurally altered unless the entire structure and use thereof shall thereafter conform to all regulations of the zoning district in which it is located.

D.

Extension.

1.

Extension of a nonconforming use is permitted within a nonconforming structure to any portion of the floor area that was not occupied by such nonconforming use on the effective date of the original City Zoning Regulations or a subsequent amendment to these regulations that caused such use to become nonconforming; provided, however, that no structural alterations shall be made unless such changes, and the use thereof, conform to the regulations of the district in which the structure is located.

2.

Extension of a nonconforming use of a part of a structure is not permitted if all or substantially all of the structure is designed or intended for a use which is permitted in the district in which the structure is located. Additionally, except as specifically provided for in Section 803.H., the use of all or a part of such a structure shall not be changed to any other nonconforming use.

3.

Extension of a nonconforming use is not permitted to any structure or land area other than the one actually occupied or used by such nonconforming use on the effective date of the original City Zoning Ordinance or a subsequent amendment to these regulations that caused such use to become nonconforming.

E.

Enlargement. No structure that is devoted in whole or in part to a nonconforming use shall be enlarged or added to in any manner unless such structure and the use thereof shall thereafter conform to the regulations of the district in which it is located.

F.

Damage.

1.

In the event that any structure devoted in whole or in part to a nonconforming use is damaged by means except flooding, to the extent of more than 50% of its fair market value, such structure shall not be restored unless such structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located.

2.

In the event that any such structure is damaged to the extent of 50% or less of the fair market value, no repairs or restoration shall be made unless a zoning permit is obtained and restoration is actually begun within one year after the date of such partial destruction and is diligently pursued to completion.

3.

Any applicant aggrieved by the decision of the Zoning Administrator in approving the percent of damage to the value of the structure based on data submitted by the applicant, may appeal such determination to the Board of Zoning Appeals. (See Section 805.)

G.

Moving. No structure that is devoted in whole or in part to a nonconforming use shall be moved in whole or in part for any distance to any other location on the same or any other lot, unless the entire structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located after being so moved. No nonconforming use of land shall be moved in whole or in part for any distance to any other location on the same or any other lot, unless such use shall thereafter conform to all regulations of the zoning district in which it is located after being so moved. (See Section 303.M. for moving structures and City ordinance on moving buildings.)

H.

Change in Use. If no structural alterations are made other than those necessary to repair or maintain the structure as described in Section 803.B.1., a nonconforming use of a structure may be changed to another nonconforming use of the same or similar type as the existing nonconforming use or to a more restrictive nonconforming use. Similarly, a nonconforming use of land not involving a structure or involving only an accessory structure may also be changed to another nonconforming use of the same or similar type as the existing nonconforming use or to a more restrictive nonconforming use. When a nonconforming use has been changed to a more restrictive nonconforming use, it shall not thereafter be changed back to a less restrictive nonconforming use. Additionally, when a nonconforming use has been changed to any permitted use, it shall not thereafter be changed back to a nonconforming use. In determining whether a change in use is the same, similar or more restrictive, the Zoning Administrator shall consider the changes in environmental factors such as outdoor storage, loading, traffic, parking, noise, lighting, air pollution, hours of operation, screening and other factors, as well as the provisions available in Section 805 of these regulations.

I.

Abandonment or Discontinuance.

1.

When a nonconforming use of land, not involving a structure, or involving only a structure which is accessory to the nonconforming use of land, is discontinued or abandoned for a period of six consecutive months, such nonconforming use shall not thereafter be reestablished or resumed, and any subsequent use or occupancy of such land shall comply with the regulations of the zoning district in which such land is located. The period of discontinuation or abandonment of a nonconforming use shall apply regardless of any reservation or intent not to abandon or to resume such use.

2.

When a nonconforming use of a part or all of a structure which was or was not designed and intended for a use which is permitted in the zoning district in which such structure is located is discontinued or abandoned for a period of 12 consecutive months, such use shall not thereafter be reestablished or resumed, and any subsequent use or occupancy of such structure shall comply with the regulations of the zoning district in which such land is located. The period of discontinuation or abandonment of a nonconforming use shall apply regardless of any reservation or intent not to abandon or to resume such use.

J.

Nonconforming Accessory Uses. No use which is accessory to a principal nonconforming use shall continue after such principal nonconforming use shall cease or terminate.

Notwithstanding the provisions of Sections 803.C, 803.D, and 803.E, any structure which is devoted to a residential use and which is located in a business or industrial district may be structurally altered, extended, expanded and enlarged; provided, however, that after any such reconstruction, such structure shall not be used to accommodate a greater number of dwelling units than such structure accommodated prior to any such work unless specifically permitted by the district.

Notwithstanding any other provisions of these regulations and, in particular, Sections 802.B and 802.C and 803.C, 803.D, 803.E, and 803.F, owners of nonconforming nonresidential structures and uses that existed on the effective date of the original City Zoning Ordinance or a subsequent amendment to these regulations that caused such use to become nonconforming may apply, on a one time only basis, to the Board of Zoning Appeals for an exception to reconstruct, structurally alter, enlarge after damage, or make extensions to structures or uses including the use of additional land when properly zoned for the use, so long as in the opinion of the Board under stated conditions that the effect upon adjacent areas is protected to the extent possible and the public interest served.

A.

Any use previously established as an exception by prior zoning regulations of the City may continue in such status with any conditions attached thereto which may have been the basis of their prior approval, unless application is made for such change in status as may be permitted by these regulations or such uses have now been classified as permitted uses under these regulations.

B.

Where a use existed prior to the effective date of these regulations and any prior regulations and was or is now classified as a special use or exception, it shall be considered to be a lawful conforming special use or exception. Enlargement, extension or alterations to existing structures or uses for expansion of such lawful uses may be made within the area of the lot included in the ownership existing as of the effective date of these regulations, and shall be subject to all requirements set forth in these regulations as if they were permitted uses.

C.

Whenever land is annexed that has been used for a quarry or sand pit operation which has previously been zoned by Sedgwick County as a conditional use, it shall be considered to be a lawful conforming special use in any district provided the same conditions attached to its approval as a conditional use under the County Zoning Resolution remain in effect and enforceable by the City.