A.

Overview
The regulations of this article establish regulations that govern uses, structures, lots and other current circumstances that came into being lawfully but that do not conform to one or more requirements of this Land Development Code. The regulations address the following types of nonconformities:

1.

Nonconforming Uses
Nonconforming uses are uses that were established in accordance with zoning regulations in effect at the time of their establishment, but which, because of amendments to the zoning regulations, no longer comply with the use regulations of the underlying zoning district. A use that was legally established without a Conditional Use Permit shall be deemed to have a Conditional Use Permit and shall not be deemed nonconforming solely because a Conditional Use Permit is now required for the use.

2.

Nonconforming Structures
Nonconforming structures are buildings or structures that were established in accordance with all zoning regulations in effect at the time of their establishment, but which, because of amendments to the zoning regulations, no longer comply with the dimensional standards of the underlying zoning district.

3.

Nonconforming Lots
Nonconforming lots are lots that were legally created in accordance with zoning district minimum lot size and dimensional standards in effect at the time of their creation, but which, because of amendments to the zoning regulations, no longer comply with the minimum lot size or other dimensional standards of the zoning district.

B.

Policy
It is the general policy of the City to allow uses, structures or lots that came into existence legally and in conformance with then-applicable requirements but that do not conform to all of the applicable requirements of this Land Development Code to continue to exist and be put to productive use, but to bring as many aspects of such use into conformance with current Land Development Code as is reasonably practicable, all subject to the limitations of this Article. The limitations of this Article are intended to recognize the interests of the property owner in continuing to use the property but to control the expansion of the nonconformity and to control re-establishment of abandoned uses and limit re-establishment of buildings and structures that have been substantially destroyed.

C.

Authority to Continue
Nonconformities shall be allowed to continue in accordance with the regulations of this Article.

D.

Determination of Nonconformity Status
The burden of establishing that a nonconformity lawfully exists is the owner's burden, not the City's.

E.

Repairs and Maintenance
Repairs and normal maintenance required to keep nonconforming uses, structures and lots in a safe condition are permitted, provided that no alterations may be made except those allowed by this Article or required by law or ordinance.

F.

Change of Tenancy or Ownership
Changes of tenancy, ownership or management of an existing nonconformity are permitted, provided that no changes in the nature or character, extent or intensity of such nonconformity may occur except those allowed by this Article.

Source: 4558 (2006).

Nonconforming uses shall be subject to the following standards.

A.

Enlargement
No nonconforming use may be enlarged, expanded or extended to occupy a greater area of land or floor area than was occupied on February 17, 1998, and no additional accessory use, building or structure may be established on the site of a nonconforming use. This provision notwithstanding, uses may be extended throughout any part of a building or other structure that was lawfully and manifestly designed or arranged for such use on February 17, 1998.

B.

Relocation
No nonconforming use may be moved in whole or in part to any other portion of such parcel nor to another lot unless the use will be in conformance with the use regulations of the district into which it is moved.

C.

Discontinuance and Abandonment
If a nonconforming use ceases for any reason for a period of more than twelve (12) consecutive months (except where Government action causes such cessation), the subsequent use of such parcel or lot must conform to the regulations and provisions set by this Land Development Code for the district in which such parcel or lot is located.

D.

Damage or Destruction
If a structure devoted in whole or in part to a nonconforming use is damaged or destroyed by any means, to the extent of more than fifty percent (50%) of its structural value prior to the damage, that structure may not be restored unless the structure and the use thereof thereafter complies with all regulations of the zoning district in which it is located. The determination of reduced structural valuation shall be made by the City. If the damage or destruction represents fifty percent (50%) or less of the structure's value prior to the damage, repair and restoration is allowed, provided that a building permit must be obtained within six (6) months of the damage and restoration must begin within one year of the date of damage.

1.

Existing, off-premises advertising signs located along interstate highways that become legal, nonconforming signs with the adoption of this Land Development Code may be replaced or repaired even though damaged beyond fifty percent (50%) of their value, and such signs may also be relocated, even if not damaged or destroyed, so long as they remain on the same property; provided, that any such replacement sign shall be limited to a sign of no greater size than the original.

2.

Existing off-premises advertising signs located within the DMU zoning district, but outside of the downtown historic district, that become legal, nonconforming signs with the adoption of this Land Development Code may be replaced or repaired even though damaged beyond fifty percent (50%) of their value, and such signs may also be relocated, even if not damaged or destroyed, so long as they remain on the same property, provided that any such replacement sign shall be limited to a sign of no greater size than the original.

3.

Notwithstanding the foregoing provisions of this section, if a structure devoted in whole or in part to a nonconforming use that is residential in nature is damaged or destroyed by any means, to the extent of more than fifty percent (50%) of its structural value prior to the damage, that structure may be restored, repaired or rebuilt in its entirety if all of the following conditions are met:

a.

The building or structure will not occupy any portion of the lot that was not occupied by the destroyed structure

b.

The building or structure will not have a greater floor area than the destroyed structure,

c.

The building or structure will not exceed the height or number of stories contained in the destroyed structure

d.

The number of off-street parking spaces located on the property will not be reduced from the number available before the damage; and,

e.

The building permit for the repair or restoration must be obtained within six (6) months of the damage and restoration must begin within one (1) year of the date of the damage.

E.

Change in Use
A nonconforming use may be changed to a new use, provided that the new use must be of the same general character or of a less intensive character (and thus more closely conforming) than the existing, nonconforming use. The determination of whether a proposed use is a conforming use or is less intensive shall be made by the Zoning Administrator. A nonconforming use, if changed to a conforming use or less intensive nonconforming use, may not thereafter be changed back to a less conforming use.

F.

Residential Uses in Nonresidential Districts
The other provisions of this section notwithstanding, any structure that is devoted to a nonconforming residential use and located in an NO or more intensive zoning district may be remodeled, extended, expanded, and enlarged, provided that after the remodeling, extension, expansion or enlargement, the structure may not be used to accommodate a greater number of dwelling units than the structure accommodated prior to the work.

G.

Accessory Uses
No use that is accessory to a principal nonconforming use may continue after the principal use ceases or terminates.

Source: 4658 (2008), 4697 (2009).

A lot shown on an approved and recorded subdivision plat on February 17, 1998, or a parcel shown on the assessor's records as a separate parcel on February 17, 1998, may be occupied and used although it may not conform in every respect with the lot size and width standards of this Land Development Code, subject to the provisions of this section.

A.

Vacant Lot
If the lot or parcel was vacant on February 17, 1998, then the owner may use the property for any uses allowed in the underlying zoning district, provided that the use must comply with applicable dimensional requirements to the maximum extent practicable. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and one or more uses or intensities would comply with applicable dimensional requirements while others would not, then only the uses or intensities that would comply with the applicable dimensional standards shall be permitted.

B.

Lot with Building or Structure
If the lot or parcel contains a building or structure on February 17, 1998, then the owner may continue the use of that building or structure and may expand the structure provided that the expansion is in compliance with all applicable Land Development Code standards. The determination of whether a proposed expansion is in compliance with all applicable Land Development Code standards shall be made by the Zoning Administrator. If the structure is removed or destroyed, any structure that is reconstructed must comply with all applicable land use and dimensional requirements.

C.

Lot Merger
If the lot or parcel is smaller than would otherwise be required by this Land Development Code and such lot or parcel is at any time on or after February 17, 1998, under common control with an adjacent lot or parcel, then the two lots shall be considered merged for purposes of this Land Development Code and shall in the future be considered together for purposes of determining compliance with the Land Development Code. If the merged lots or parcels contain sufficient area for the actual or proposed use, then they shall be deemed fully conforming. If the merged lots or parcels together do not contain sufficient area for the actual or proposed use, they shall nonetheless be considered together for purposes of reducing the degree of nonconformity.

Source: 4039 (2000), 4169 (2001).

Nonconforming structures shall be subject to the following standards.

A.

Enlargement and Expansion
Any expansion of a nonconforming structure shall be prohibited unless such expansion is in compliance with all applicable Land Development Code standards. The determination of whether a proposed expansion is in compliance with all applicable Land Development Code standards shall be made by the Zoning Administrator.

B.

Damage or Destruction
In the event that any nonconforming structure is damaged or destroyed, by any means, to the extent of more than fifty percent (50%) of its structural value prior to such destruction, such structure may not be restored except in conformance with the regulations of the zoning district in which it is located. When a structure is damaged to the extent of fifty percent (50%) or less of its pre-destruction value, repairs or restoration may be made, provided that a building permit is obtained within six (6) months and restoration begins within one year after the date of destruction. The determination of reduced structural valuation shall be made by the Zoning Administrator.

1.

Notwithstanding the foregoing paragraph, any existing structure that is devoted to a legal nonconforming residential use may be repaired or rebuilt even though damaged beyond 50 percent of its value, provided that the structure may be repaired or rebuilt in its entirety so long as the new structure will not: occupy any portion of the lot that a was not occupied by the destroyed structure, have a greater floor area than the destroyed structure, exceed the height or number of stories contained in the destroyed structure, or diminish the number of off-street parking spaces located on the property from the number existing before the damage; and so long as a building permit is obtained within six (6) months of the date the damage occurs and so long as restoration begins within one year of the date the damage occurs.

C.

Relocation
Nonconforming structures may not be moved unless the movement or relocation will bring the structure into compliance with all applicable zoning district regulations.

Source: 4039 (2000), 4658 (2008), 4697 (2009).

When a conveyance of land to a federal, state, or local government for a public purpose results in the creation of nonconformity to Article 20-04, Article 20-05, or Article 20-07 of the Land Development Code, such nonconformity shall not be deemed to be a violation of the Land Development Code. Such nonconformity shall be deemed to be in compliance with the Land Development Code until such time that subsequent development activity will trigger Land Development Code provisions as applicable at the time of such activity.

Source: 5105 (2017).