(A)

The purpose of this Chapter is to avoid undue hardship by permitting the continued use of any building, structure, or property that was lawful at the time of the enactment of this Ordinance or any applicable amendment thereof even though such use, structure or property does not conform to the provisions of this Ordinance. However, this Article is also established to require that nonconforming situations be terminated under certain circumstances.

(B)

Nonconforming situations that were otherwise lawful on the effective date of this Ordinance may be continued, subject to the restrictions and qualifications set forth in this Chapter.

(C)

Many nonconformities may continue, but the provisions of this Chapter are designed to minimize substantial investment in nonconformities and to bring about eventual elimination and/or lessen their impact upon surrounding conforming properties in order to preserve the integrity of the area in which it is located and the intent of this Ordinance.

(D)

Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged. In no case, however, shall work costing more than 60 percent of the taxed value of the structure be done, singularly or cumulatively, within any five (5) year period.

(Ord. of 6-20-16(2))

Where the owners of a lot of record at the time of the adoption of this Ordinance or his successor in title thereto does not own sufficient land to enable him to conform to the area or lot width requirements of this Ordinance, such lot may be used as a building site provided all other dimensional requirements are met and provided that the use to be made of the property is not one to which larger than minimum lot area requirements are called for in the list of Permitted and Special Uses and the Supplemental Requirements. For lots with existing buildings.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)

13.3.1 Open Uses of Land.

This category of nonconformance consists of lots used for storage yards, motor vehicle sales, auto wrecking, junkyards and similar open spaces where the only buildings on the lot are incidental and accessory to the open use of the lot and where such use of the land is not permitted to be established hereafter, under this Ordinance, in the district in which it is located. A legally established non-conforming open use of land may be continued except as follows:

(A)

When a nonconforming use of land has been changed to a conforming use, it shall not thereafter revert to any nonconforming use.

(B)

A nonconforming open use of land shall be changed only to conforming uses.

(C)

A nonconforming open use of land shall not be enlarged to cover more land than was occupied by that use when it became nonconforming.

(D)

When any nonconforming open use of land is discontinued for a period in excess of 180 days, any future use of the land shall be limited to those uses permitted in the district in which the land is located. Vacancy and/or non use of the land, regardless of the intent of the owner or tenant, shall constitute discontinuance under this provision.

13.3.2 Uses of Structures.

This category of nonconformance consists of buildings or structures used at the time of enactment of this Ordinance, or any amendment thereto, for purposes of use not permitted in the district in which they are located. Such uses may be continued as follows:

(A)

A nonconforming use shall not be changed to another nonconforming use. Any nonconforming use may be changed to a conforming use.

(B)

When a nonconforming use has been changed to a conforming use, it shall not thereafter revert to any nonconforming use.

(C)

A nonconforming use may not be extended or enlarged, nor shall a structure containing a nonconforming use be altered except as follows:

(1)

Structural alterations as required by law or ordinance to secure the safety of the structure are permissible.

(2)

Minor repairs to and routine maintenance of property where a nonconforming use exists is permitted and encouraged. Major renovation - i.e., work estimated to cost more than 10 percent but less than 60 percent of the taxed value of the structure to be renovated may be done provided that the work will not result in a violation of any other paragraphs of this Subsection particularly (E) above. In no case, however, shall work costing more than 60 percent of the taxed value of the structure be done, singularly or cumulatively, within any five (5) year period.

(3)

Expansion of a nonconforming use within a building or structure into portions of the structure which, at the time the use became nonconforming, were already erected and arranged or designed for such nonconforming use is permissible.

(D)

When any nonconforming use of a building or structure is discontinued for a period in excess of 180 days, the building or structure shall not thereafter be used except in conformance with the regulations of the district in which it is located. Vacancy and/or non-use of the land, regardless of the intent of the owner or tenant, shall constitute discontinuance under this provision.

(E)

Nothing herein shall prevent the maintenance, repair and extension of a single-family dwelling that is nonconforming as to use, provided it is done in conformance with the dimensional requirements of the R-6 zoning district, nor prevent the maintenance, repair, extension, or construction of a residential accessory building or swimming pool, provided done in conformance with the requirements of this Ordinance.

13.3.3 Discontinuance of Nonconforming Uses.

(A)

When active operation or occupancy of a nonconforming use is discontinued regardless of the purpose or reason for a consecutive period of 180 days, the property involved may thereafter be used only for conforming uses.

(B)

For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this Subsection, all of the buildings, activities and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one (1) apartment in a nonconforming apartment building or one (1) space in a nonconforming manufactured home park for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building or manufactured home park as a whole is continuously maintained. But if a nonconforming use is maintained in conjunction with a conforming use, cessation of operation or occupancy of the nonconforming use for the required period shall terminate the right to maintain it thereafter.

(Ord. of 6-20-16(2))

This category includes any structure not in conformance with the restrictions of this Ordinance after the effective date of adoption. Such nonconformities shall include, but not be limited to, height, bulk and setback. Such nonconforming structures shall be allowed to remain with the following conditions:

(A)

A nonconforming structure may not be enlarged or altered in any dimension that increases the nonconformity except where maintenance and repair are necessary to keep the structure in sound condition.

(B)

When any nonconforming structure is removed, it may not be replaced with another nonconforming structure.

(C)

When any nonconforming structure is damaged, repair must follow the guidelines listed in Section 13.5.

(D)

Structural alterations as required by law or ordinance to secure the safety of the structure are permissible.

(E)

Conforming uses, except Adult Establishments, may be established or re-established in nonconforming buildings or structures provided that off-street parking is provided as required by this Ordinance and provided no other provision of this Ordinance for the establishment of new uses is violated.

(Ord. of 6-20-16(2))

Any nonconforming structure, or any structure containing a nonconforming use, which has been damaged by fire, wind, flood or other causes, shall not be rebuilt, altered or repaired after damage exceeding 60 percent of its tax value immediately prior to damage with the exception of single family homes or manufactured homes used for residential purposes which may be rebuilt or replaced provided the provisions of the Flood Damage Prevention regulations of Section 7.4, other Town of Forest City ordinances and the conditions below are met:

(A)

Repairs are initiated within one (1) year and completed within two (2) years of such damage;

(B)

The total amount of space devoted to a nonconforming use may not be increased;

(C)

Reconstructed nonconforming structures may not be made more nonconforming by the repairs; and

(D)

Where possible, any nonconforming structure shall be repaired or reconstructed in such a manner so as to minimize the nonconformance(s).

(E)

Nothing herein shall prevent the reconstruction of a nonconforming single-family dwelling that was destroyed by fire or natural disaster provided such reconstruction conforms to the dimensional requirements of the zoning district in which it is located.

(Ord. of 6-20-16(2))

(A)

A nonconforming manufactured home on an individual lot outside of a manufactured home park may not be replaced except by a conforming dwelling. A nonconforming manufactured home may not be enlarged or altered externally in any way.

(B)

All manufactured homes placed on approved spaces in existing nonconforming manufactured home parks shall meet the requirements of Section 4.2.6(A), (F), and (G) and have continuous underpinning installed around the base perimeter of the home.

(Ord. of 6-20-16(2))

(A)

Signs that were legally erected and were in place prior to the adoption of this Ordinance but which do not conform to the provisions of this Ordinance are declared nonconforming signs. Signs that were legally erected and that are in place and which conformed to the provisions of this Ordinance at the time erected, but which do not conform to an amendment of this Ordinance enacted subsequent to the erection of said signs also are declared nonconforming signs.

(B)

A nonconforming sign may be continued but it shall not be:

(1)

Changed or replaced with another nonconforming sign, except that the sign face may be changed as long as no structural changes to the sign are made.

(2)

Expanded or modified in any way which increases the sign nonconformity. Nor may illumination be added.

(3)

Moved except to bring the sign into complete conformity with this Ordinance.

(4)

Re-established once the sign structure has been removed.

(5)

Re-established after damage or deterioration.

(6)

Re-established after it has been discontinued regardless of reason or intent for 180 days or more.

(C)

Nonconforming portable and temporary signs shall be removed within 180 days of the effective date of this Ordinance.

(D)

Minor repairs and maintenance of nonconforming signs necessary to keep a nonconforming sign in sound condition are permitted. If repair or maintenance of a nonconforming sign results in the removal of the sign frame structure for any length of time, the replaced sign frame structure and any copy placed on it shall be in conformance with this Ordinance.

(E)

If a nonconforming sign is blank or advertises a business, service, commodity, accommodation, attraction or other enterprise or activity that is no longer operating or being offered or conducted, that sign shall be deemed abandoned and shall be removed or brought into compliance by the sign owner, property owner, or other party having control over such sign within 180 days after the use has ceased operation or the service or commodity has ceased being offered.

(Ord. of 6-20-16(2))

Except as herein provided, any expansion of 20 percent or greater an existing use, structure, or parking area or a significant change of use which is deficient in landscaping and/or buffering, shall not occur without the screening and/or landscaping required by Chapter 8 having first been provided on-site. The C-1 and C-T districts are exempt from this requirement. The requirements of Chapter 8 shall be met to the greatest extent possible as determined by the Administrator.

(Ord. of 6-20-16(2); Amend. of 12-16-19(1))

(A)

On any lot in any zoning district, except the C-1 and C-T districts, which contains a use which does not comply with the off-street parking and loading regulations contained in Chapter 9 of this Ordinance, no expansion of greater than 20 percent or any significant change of use shall be approved which would result in a need to increase the number of off-street parking and/or loading spaces required (except as herein provided), until the requisite number of off-street parking spaces and all paving requirements have been met.

(B)

A Zoning Permit may be issued when there has been a significant change of use and the number of off-street parking spaces required for the new use (per Chapter 9 of this Ordinance) is within 10 percent or 10 spaces, whichever is less, of the number of off-street parking spaces actually provided. Such relief may be granted on a one-time only basis per lot or planned development.

(Ord. of 6-20-16(2); Amend. of 12-16-19(1))

Notwithstanding the provisions of Section 13.3.3, Adult Oriented Businesses shall be governed by the following:

(A)

Any Adult Oriented Business that fails to comply with the use and locational requirements of this Ordinance, but which was lawfully operating before the effective date of this Ordinance shall not be deemed to be in violation of this Ordinance but shall be nonconformity. Any such business, which ceases active operation for a period of 30 days regardless of the purpose or reason, shall be subject to all the requirements of this Ordinance and the property may thereafter be used only for conforming uses.

(B)

Any Adult Oriented Business lawfully operating as of the effective date of this Ordinance but which subsequently fails to comply with the use and locational requirements of this Ordinance as the result of changes within the vicinity or amendment to this Ordinance shall not be deemed to be in violation of this Ordinance but shall be a nonconformity. Any such business, which ceases active operation for a period of 30 days regardless of purpose or reason, shall be subject to all the requirements of this Ordinance and the property may thereafter be used only for conforming uses.

(C)

Any Adult Oriented Business that is rendered a nonconforming use as a result of the conditions described in (A) and (B) above, shall either cease to operate or meet all of the requirements of this Ordinance for the use no later than 60 months from the date that the Adult Oriented Business becomes a nonconforming use.

(Ord. of 6-20-16(2))

A Certificate of Nonconformity Adjustment may be granted by the Board of Adjustment to enlarge, expand, or otherwise alter a nonconforming use or structure as set forth in this Section.

(A)

Application for a Certificate of Nonconformity Adjustment shall be submitted to the Administrator with a detailed site plan showing the degree of any proposed expansion in relationship to the existing site improvements and a detailed explanation of the current use of the property.

(B)

The Board of Adjustment shall conduct a public hearing on the application in accordance with the requirements of Section 15.4 of this Ordinance.

(C)

After the hearing, the Board of Adjustment will either approve or deny the request based on the following criteria:

(1)

Noise: Does the nonconformity create noise above and beyond levels considered normal to the area?

(2)

Traffic: Does the nonconformity generate or have the potential to generate a significantly higher volume of traffic than surrounding land use?

(3)

Other measurable physical effects: Does the nonconformity generate any other negative effects including, but not limited to, dust, air pollution, odor, etc.

(4)

Surrounding property values: Does the nonconformity detract from prevailing property values?

(5)

Aesthetics: Does the nonconformity compliment or detract from the overall aesthetic character of the area?

(D)

Conditions may be placed on the approval of the Certificate of Nonconformity Adjustment in order to mitigate potential impacts to the surrounding area. Approval and conditions "run with the land" and are applicable to future property owners. The Board may impose such additional conditions upon approval as it may deem necessary in order that the purpose and intent of this Ordinance are served, public welfare secured and substantial justice done. The applicant shall provide written consent to conditions to ensure enforceability.

(E)

If the Board of Adjustment denies the adjustment request, then the nonconformity will be handled in accordance with the requirements of this Chapter.

(F)

Appeals from a Board of Adjustment decision shall be taken in the manner prescribed in Section 15.4.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)