a.

Non-conformities are considered to be incompatible with the current or intended use of land, buildings or structures in the district in which they are located. This article is intended to meet the objectives stated below by establishing regulations that govern the completion, restoration, reconstruction, extension, and/or substitution of non-conformities, and specify the circumstances and conditions under which non-conformities shall be permitted to continue.

The intent of this article is to bring into compliance, lots, buildings, structures, sites, and uses which legally existed at the date of adoption of this ordinance, but do not meet the current standards of this ordinance. This ordinance also has special provisions to permit certain non-conforming situations considered to be less harmful to continue under certain conditions, but to discourage their expansion, enlargement, or extension. The requirement and standards of this article are intended to accomplish the following:

1.

Terminate and remove any use, building, accessory structure or any combination thereof that was established after the effective date of this ordinance and in violation of this ordinance. Such uses, buildings, or accessory structures are classified as violations of this ordinance and shall not receive any of the rights, privileges or protection conferred by this article for non-conforming situations.

2.

Discourage the continuation of non-conforming uses that are more intense than the uses permitted within the zoning district and are considered to be incompatible with permitted uses, and encourage their redevelopment into a more conforming use.

3.

Permit legal non-conforming buildings, structures or uses to remain until they are discontinued, removed or abandoned.

4.

Encourage a gradual upgrading to a more conforming status of site landscaping, parking, paving, signs or other features of a site required by the zoning ordinance developed in compliance with the requirements at the time of their construction, but which do not meet the site requirements of this ordinance.

5.

Encourage the combination of contiguous non-conforming lots of record to create lots which conform or more closely conform to current requirements, for better compatibility with other lots in the zoning districts in which they are located, to promote the public health, safety and welfare, and to eliminate problems associated with the overcrowding of land.

To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this ordinance, upon which actual building construction has been diligently continued and there is a valid building permit. Actual construction is defined as including the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such work shall be considered to be actual construction, provided that the work shall be diligently continued until completion of the building involved.

Where, at the effective date of adoption or amendment of this ordinance, a lawful use on open land, a lot(s), building(s) or accessory structure(s) exists that is made non-conforming by this ordinance or its amendments, such use may be continued, as it remains otherwise lawful, subject to the following provisions:

a.

Expansions. Any non-conforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use, and which existed at the effective date of this ordinance. Except for one-family dwellings as permitted in g., a non-conforming use shall not be enlarged, expanded or extended to occupy a greater area of land, constructed, reconstructed or structurally altered except with approval by the zoning board of appeals (ZBA).

b.

Accessory uses and structures. No new accessory use, building or structure shall be established.

c.

Relocation. The non-conforming use shall not be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of this ordinance.

d.

Change in use. If no structural alterations are made, any non-conforming use of a building, or building and land in combination, may be changed to another non-conforming use if the ZBA finds the proposed use is more appropriate to the district than the existing non-conforming use. In permitting the change, the ZBA may require conditions and safeguards in accord with the purpose and intent of this ordinance. Where a non-conforming use of a structure, land, or structure and land in combination is hereafter changed to a more conforming use, it shall not thereafter be changed to a less conforming use.

e.

Removal. Where non-conforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the non-conforming status of the land.

f.

Abandonment or discontinuance. If a non-conforming use of land ceases for any reason for a period of more than one (1) year and the development official determines that the owner has established intent to abandon the non-conforming use, any subsequent use of such land shall conform to the requirements specified by this ordinance for the zoning district in which it is located. A non-conforming use shall be determined to be abandoned if one (1) or more of the following conditions exists, and shall constitute an intent on the part of the property owner to abandon the non-conforming use:

1.

Utilities, such as water, gas and electric to the property, have been disconnected.

2.

The property, buildings, and grounds, have fallen into disrepair.

3.

Signs or other indications of the existence of the non-conforming use have been removed.

4.

Equipment or fixtures which are necessary for the operation of the non-conforming use have been removed.

5.

Other actions, which in the opinion of the development official constitute an intention by the property owner or lessee to abandon the non-conforming use.

g.

Special standards for one-family dwellings in a non-residential district.

1.

A one-family dwelling and its accessory structures, in a zoning district which does not permit that use may be continued, replaced, repaired or remodeled if damaged by flood, fire, or vandalism, if approved by the ZBA. Such approval requires a finding that the resulting building footprint and floor area will be the same size or smaller than that of the building before such change. Replacement of such non-conforming one-family building shall commence no sooner then receiving a valid building permit and no later than six (6) months of the date of damage. Work shall be diligently pursued toward completion. The applicant may be required to provide the city with evidence, visual or otherwise, that demonstrates to the satisfaction of the city that work is being diligently pursued. Failure to complete replacement or to diligently work toward completion shall constitute abandonment and result in the loss of its non-conforming status unless good cause for the delay is accepted at a hearing before the ZBA.

Where a lawful building or structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance, that building or structure may be continued provided it remains otherwise lawful, subject to the following provisions. Except as noted below, no building or structure may be enlarged unless a variance is granted by the ZBA.

a.

Damage by fire or other catastrophe. Any non-conforming structure or building that is damaged by fire, flood, or other means to a point where the cost of repairs will be in excess of fifty (50) percent of the structure and/or building's market value (as described in paragraph i. below) may be rebuilt, repaired, or reconstructed, in complete conformity with the provisions of this ordinance.

In the event that the cost of repairing the damage is less than fifty (50) percent of the structure or building's market value (as described in paragraph i. below), the structure or building may be restored to its pre-catastrophe status. Such restoration shall take place only upon approval of the development official and all construction shall be in full compliance with applicable provisions of this ordinance and other applicable City Codes. Any request for such rebuilding, repair, or restoration shall be made to the development official within one hundred eighty (180) days following the incident. Any such rebuilding, repair, or restoration shall be completed within one (1) year from the date of the catastrophe.

Failure to complete replacement or to diligently work toward completion shall result in the loss of legal non-conforming status unless good cause for the delay is accepted at a hearing before the ZBA.

b.

Replacement of a non-conforming one-family dwelling. A non-conforming building used as a one-family residence, and its accessory structures, may be continued, replaced, repaired or remodeled if damaged by flood, fire, vandalism, accident or other natural disaster if approved by the ZBA. Such approval requires a finding that the resulting building footprint will be the same size or smaller than that of the building before such change or that the building will become more conforming. Replacement of such a non-conforming one-family building shall commence within one (1) year of the date of damage and work shall be diligently pursued toward completion. Failure to complete replacement or to diligently work toward completion shall result in the loss of legal non-conforming status unless good cause for the delay is accepted at a hearing before the ZBA.

c.

Relocation of a non-conforming building or structure. Should any non-conforming building or structure be relocated or moved for any reason for any distance, it shall thereafter conform to the regulations for the district in which it is located after it is relocated or moved.

d.

Safety-related repairs, improvements, and modernization. Repairs, improvements, or modernization of non-conforming buildings or structures deemed necessary by the development official to maintain a non-conforming building in a structurally safe and sound condition are permitted provided such repairs or improvements do not exceed the market value (as described in paragraph i. below) of the building or structure during any period of twelve (12) consecutive months. This cost/value calculation shall not include any costs associated with modernization of electrical, plumbing, heating or cooling systems to meet Building Code requirements. Any such repairs, improvements, and modernization shall not result in an enlargement of the non-conforming structure. However, if a non-conforming building or a structure containing a non-conforming use becomes physically unsafe, dangerous, and/or unlawful due to lack of maintenance and repairs and is formally declared as such by the development official, it shall not thereafter be restored, repaired, or rebuilt except in full conformity with the regulations in the district in which it is located.

e.

Non-safety improvements and modernization. Repairs, improvements, or modernization of non-conforming buildings or structures which are not deemed necessary by the building department to keep a non-conforming building structurally safe and sound shall be permitted provided such repairs or improvements do not exceed fifty (50) percent of the market value of the structure (as described in paragraph i. below) during any period of twelve (12) consecutive months. Any such repairs, improvements or modernization shall not result in an enlargement of the non-conforming structure or building.

f.

Alterations that decrease non-conformity. Any non-conforming structure or building or structure or building containing a non-conforming use, may be altered if such alteration serves to clearly decrease the non-conforming nature of the structure, building, and/or use. The development official shall determine if a proposed alteration decreases the degree of non-conformity.

g.

Permitted expansions to one-family dwellings. An expansion (footprint or floor area) of a non-conforming one-family building or structure shall be permitted when both of the following conditions exist:

1.

Only one (1) wall of the existing building or structure does not comply with the applicable setback requirement.

2.

The expansion is on a conforming wall of the existing building or structure and will comply with applicable setback and height requirements.

h.

Elimination of non-conformity. In the event a non-conforming situation is removed, the corresponding section of the building or structure shall thereafter conform.

i.

Market value. For the purpose of this article, market value shall be determined by an acceptable independent appraisal provided by the applicant. The city assessor and development official shall review the appraisal. The value of the repairs or improvements shall be based on a written estimate from a licensed contractor provided by the applicant. This estimate shall be reviewed by the development official.

The following regulations shall apply to any non-conforming lot of record or non-conforming lot described in a deed or land contract executed and delivered prior to the effective date of the zoning ordinance or amendment thereto:

a.

Variance from area and bulk requirements. In any district in which one-family dwellings are permitted, a one-family dwelling and customary accessory building(s) may be erected on a lot that does not meet the requirements for lot width, lot area, or both without obtaining a variance from the ZBA provided that all other applicable requirements are met. In all other circumstances, use of a non-conforming lot requires a variance from the lot width and/or lot area requirements as applicable. For all other purposes, if a lot already has less than the minimum required lot area or lot width it shall not be divided or reduced in dimensions or area so as to increase its noncompliance with the minimum requirements of this ordinance

b.

Contiguous non-conforming lots in common ownership. To develop a non-conforming lot(s) under the provisions of paragraphs a. and b. above, the applicant is required to submit evidence that ownership of the lot is not under contiguous single ownership with other lots that could be combined into a conforming or more conforming lot. The following regulations shall apply to non-conforming contiguous lots under the same ownership:

1.

If two (2) or more lots or combination of lots with contiguous frontage are or have been under single ownership are of record at the time of adoption or amendment of this ordinance, and if all or part of the individual lots do not meet the requirements established for lot width and area, the lands shall be considered as a singular, individual parcel for the purposes of this ordinance. Any altering of lot lines or combination of lots shall result in lots that more closely conform to the requirements of this ordinance.

2.

No portion of the non-conforming parcel shall be used, occupied, or sold in a manner that diminishes compliance with lot width and area requirements established by this ordinance, nor shall any division of a parcel be made that creates a new lot having a width or area less than the requirements stated in this ordinance.

3.

These provisions shall not apply to contiguous lots in single ownership where each of the lots is occupied by an existing dwelling unit.

c.

Combination of non-conforming lots. The following regulations shall apply to the combination of non-conforming lots:

1.

Any combination, in whole or in part, of non-conforming lots of record shall result in lots that more closely conform to the requirements of this ordinance to the maximum extent feasible.

2.

Once any combination that creates a conforming lot occurs, the resulting lot shall not retain non-conforming lot of record status and will hereafter be required to comply with the lot requirements of this ordinance.

Note: This list [below] is for explanation purposes only.

• Two (2) or more owned lots with inadequate frontage or area are considered one (1) lot and, generally, are not to be split/altered

• Use or sale of a non-conforming lot must not create further non-conforming situation

• Non-conforming lots may be combined if it results in more conforming lot(s)

• If lot combination creates conforming lot, new lot must conform to all lot requirements of Ordinance

The intent of this section is to permit improvements and minor modifications to an otherwise conforming use and building which does not meet all of the various site improvement related regulations of this ordinance. The purpose is to allow gradual compliance with the site related requirements, for the entire site, for sites which predate the various ordinance standards for landscaping, paving, and other non-safety site related items.

Improvements or expansions may be permitted by the planning commission during special land use or site plan review without a complete upgrade of all site elements under the following conditions. The city may require a written performance guarantee with sufficient security to ensure that all improvements permitted under this section will be made in accordance with the approved plan.

a.

The applicant is proposing reasonable site improvements on the overall site in relation to the scale and construction cost of the building improvements or expansion.

b.

The applicant has addressed safety related site issues on the overall site.

c.

The improvements or minor expansion will not increase noncompliance with site requirements.

d.

The applicant has upgraded the overall site landscaping and lighting consistent with article XVI, landscaping, article XVII, lighting, article XVIII, building design requirements and article XX, stormwater management.

e.

Signs must comply with the requirements of article XV, signs.

f.

A site plan shall be submitted in accordance with article XI, site plan review.

In the event there is a change in tenancy, ownership, or management, a non-conforming use, structure or building shall be allowed to continue provided there is no change in the nature or character of such non-conformity and the use, structure, or building is otherwise in compliance with this ordinance.