A.

Illegal Nonconforming Described. A structure, lot, or use that is nonconforming and that was constructed or is being used without an approved improvement location permit or approval from the board of zoning appeals or plan commission is considered illegal nonconforming. An illegal nonconforming property shall be subject to actions and penalties allowed by this title and all other applicable city ordinances and shall be altered to conform with all applicable standards and regulations of this title.

B.

Legal Nonconforming ("Grandfathered") Described. Legal nonconforming differs from illegal nonconforming in that the reason for the nonconformance is caused by the enactment of a zoning ordinance or a change to the zoning ordinance (including the official zoning map). The structure, lot or use has not changed, but due to the zoning ordinance enactment or change, the property no longer conforms to the standards of the zoning district in which it is located. When this situation occurs, the property is deemed legal nonconforming or "grandfathered." Legal conforming lots, structures, uses, etc., may continue in the manner and to the extent that they existed or were used at the time the change in the zoning ordinance was enacted. A certificate or other written acknowledgment of legal nonconformity shall be issued by the planning director upon request and the presentation of what he or she determines to be adequate evidence.

C.

Exemptions. Structures, uses, and other property features that are nonconforming due to prior variance, special exception, or other approvals shall not be subject to the provisions of this chapter, but shall conform to the terms of their approval.

D.

Repairs and Maintenance. The following applies to legal nonconforming structures, uses of structures, or uses of structures and land in combination:

1.

Ordinary Repairs. Work may be done for ordinary repairs or replacement of walls, heating, fixtures, wiring, plumbing, etc.; under the condition that the nonconforming features (setbacks, lot coverage, land use, etc.) are not increased.

2.

Structures Declared Unsafe. Nothing in this chapter shall be deemed to prevent the strengthening, repairing, or restoring to a safe condition of any structure that has been declared unsafe by the appropriate city official.

E.

Nonconforming Lots of Record. All lots legally established and recorded with the Johnson County recorder prior to the effective date of the ordinance codified in this title, or its subsequent amendments, that no longer meet an applicable provision of this title (such as minimum area, width, or depth) shall be deemed legal nonconforming lots of record. Legal nonconforming lots of record may be built upon only if the proposed use is permitted and all development standards of the applicable zoning district of this title are met.

(Ord. 04-09 § 10.1)

* Intent: Upon adoption of the ordinance codified in this title, some structures, lots, and uses, that were previously established and maintained consistent with all applicable requirements, may no longer conform to the regulations of the zoning district in which they are located. For this reason, this chapter has been written to provide the rules, policies and regulations that apply to these structures, lots, and uses; referred to as legal nonconforming. This chapter may be referred to as the "grandfather" clause - if a use, structure, etc. was established legally under a previously applicable ordinance it shall be "grandfathered" (legal nonconforming).
These regulations are intended to inform property owners about the options for using and modifying nonconforming properties and to support the eventual elimination of the nonconformities.

A.

Legal Nonconforming Structures. Any structure (such as a primary structure, accessory structure, fence, etc.) lawfully established prior to the effective date of the ordinance codified in this title, or its subsequent amendments, that no longer meets the development standards (setbacks, height, etc.) shall be deemed a legal nonconforming structure.

B.

Continuation of Nonconforming Structures. The continuation and modification of nonconforming structures shall be consistent with the following requirements.

1.

Increases in Nonconformity. No legal nonconforming structure shall be enlarged or altered in a manner that increases its nonconformity without the approval of a variance by the board of zoning appeals. Any structure may be altered to decrease its nonconformity.

2.

Intentional Alterations. Any legal nonconforming structure that is intentionally altered, moved for any distance, or replaced shall conform to the regulations of the district in which it is located, and the discontinued legal nonconforming features may not be resumed.

3.

Accidental Alterations. Legal nonconforming structures that are required to be altered or removed due to government action or damage from fire, flood, other natural disaster, or criminal act may be restored to their legal nonconforming condition. Such structures, if rebuilt or restored, shall be identical or smaller in volume, height, setback, scale, and all other aspects to that which was altered or removed.

C.

Exception. A legal nonconforming single-family residence located in any mixed-use, industrial or institutional zoning district may be expanded by up to fifty (50) percent of the pre-expansion living area one time in any five-calendar year period. The expansion must be for the purpose of continuing the residential use of the property. Required setbacks for the expansion shall be either those established by the zoning on the property, or those provided by the pre-expansion structure, whichever is less restrictive.

(Ord. 04-09 § 10.2)

A.

Legal Nonconforming Site Features. Any site feature or improvement (such as landscaping, dumpster enclosures, parking space dimensions, etc.) lawfully established prior to the effective date of the ordinance codified in this title, or its subsequent amendments, that no longer meets the development standards shall be deemed a legal nonconforming site feature.

B.

Continuation of Nonconforming Structures. The continuation and modification of nonconforming site features shall be consistent with the following requirements.

1.

Increases in Nonconformity. No legal nonconforming site feature shall be altered, removed, or otherwise modified in a manner that increases the amount of nonconformity. Site features may be modified an a manner that maintains or lessens the extent of the nonconformity.

2.

Site Modifications. If building expansions or other changes to the property occur that require corresponding site feature improvements, the affected features shall only be required to be modified to the extent necessary to accommodate the property changes. For example, parking lot landscaping would only be required for new portions of a parking lot that was required to be expanded due to a change in the use of the property - the amount of landscaping in the pre-existing parking areas will be unaffected. The required installation of new site features shall not require the entire site to be brought into compliance with this title.

(Ord. 04-09 § 10.3)

A.

Legal Nonconforming Uses. Any lawful use of structures, land, or structures and land in combination established prior to the effective date of the ordinance codified in this title or its subsequent amendments that is no longer a permitted use in the district where it is located shall be deemed a legal nonconforming use.

B.

Continuation of Nonconforming Uses. A legal nonconforming use may continue provided that it remains otherwise lawful, subject to the following conditions:

1.

Modification of Structures. No existing structure devoted to a legal nonconforming use shall be enlarged, expanded, increased, extended, constructed, reconstructed, moved, or structurally altered except as to change the use of the structure to a use permitted in the district in which it is located or as otherwise specified in this subsection (B)(5) of this section.

2.

New Structures. No new structure shall be constructed in connection with an existing legal nonconforming use of land.

3.

Expansion Within Structures. Any legal nonconforming use may be extended throughout any parts of an existing structure that were plainly arranged or designed for such use at the effective date of this title or its subsequent amendments, but no such use shall be extended to occupy any land outside the structure.

4.

Expansion on the Property. No legal nonconforming use of land shall be enlarged, increased, extended to occupy a greater area of land, or moved in whole or in part to any other portion of a lot than was occupied at the effective date of said ordinance.

5.

Expansion of Nonconforming Residential Use. A legal nonconforming single-family residence located in any mixed-use, industrial or institutional zoning district may be expanded by up to fifty (50) percent of the pre-expansion living area one time in any five-calendar year period. The expansion must be for the purpose of continuing the residential use of the property. Required setbacks for the expansion shall be either those established by the zoning on the property, or those provided by the pre-expansion structure, whichever is less restrictive.

6.

Change of Use (to Another Nonconforming Use). If no structural alterations are made, it is possible to change any nonconforming use to another nonconforming use.

a.

Similar Uses. Nonconforming uses may be changed to another similar nonconforming use. For the purpose of this subsection similar uses shall be considered those within the same land use categories (such as office uses, retail uses (small scale), etc.) as provided by Chapter 17.16.

b.

Dissimilar Uses. Nonconforming uses may only be changed to other dissimilar nonconforming uses with the approval of the board of zoning appeals (as a use variance). For the purpose of this subsection dissimilar uses shall be considered those that are not within the same land use categories (such as office uses, retail uses (small scale), etc.) as provided by Chapter 17.16.

i.

The board may approve the change of use if it finds that the proposed use is equally or more appropriate to the district in which it is located than the existing use;

ii.

The board shall consider the development standards applicable to the proposed use established by this title and may make reasonable conditions as part of any approval.

7.

Change of Use (to a Permitted Use). When a legal nonconforming use is replaced by a permitted use, it shall thereafter conform to the regulations of the district in which it is located, and the legal nonconforming use may not be resumed.

8.

Discontinuation of Use. If a legal nonconforming use is intentionally discontinued for one year or longer, any subsequent use of such land, structure, or land and structure in combination shall conform to the provisions of this title.

a.

Exemptions. Uses that are required to be discontinued due to government action that impedes access to the premises or damage from fire, flood, other natural disaster, or criminal act shall be exempt from this provision and may be restored.

b.

Exemption Conditions. Such exempt uses, if restored, shall be identical in scale, volume, lot coverage, and all other aspects to that which was discontinued.

9.

Nonconforming Structures and Land in Combination. Where legal nonconforming use status applies to a structure and land in combination, an intentional removal or alteration of the structure, or its use, that establishes conformity shall also eliminate the legal nonconforming status of the land. Legal nonconforming uses located in structures specifically constructed or modified to suit only such use are exempt from this provision and may be resumed if the structure has not been intentionally altered to serve other uses, used to house a permitted use, or used to house another nonconforming use with the approval of the board of zoning appeals as specified in subsection (B)(5) of this section.

(Ord. 04-09 § 10.4)

* Example of Nonconforming Structures and Land in Combination: Legally established apartment units located in a single family dwelling zoning district at the effective date of the ordinance codified in this title may continue to be used as apartments after a period of vacancy if the structure has not been modified to physically remove the apartments.

A.

Legal Nonconforming Signs. Any sign, lawfully established prior to the effective date of the ordinance codified in this title, or its subsequent amendments, that no longer meets the development standards shall be deemed a legal nonconforming sign.

B.

Sign Defined. For the purposes of this chapter, a sign shall include the sign face and any supports, poles, frames, or other associated lighting, electrical, mechanical, and structural features.

C.

Continuation of Nonconforming Signs. The continuation and modification of nonconforming signs shall be consistent with the following requirements:

1.

Increases in Nonconformity. No legal nonconforming sign shall be enlarged or altered in terms of face area, height, or any other aspect that increases its nonconformity.

2.

Intentional Alterations. Any legal nonconforming sign that is intentionally altered, moved for any distance, or replaced shall conform to the regulations of the district in which it is located, and the discontinued legal nonconforming features may not be resumed.

3.

Accidental Alterations. Legal nonconforming signs that are required to be altered or removed due to government action or damage resulting from fire, flood, other natural disaster, or a criminal act may be restored to their legal nonconforming condition. Such signs, if rebuilt or restored, shall conform with the requirements of this title, or shall be identical in scale and all other aspects to that which was altered or removed.

4.

Sign Faces and Messages. The sign faces and/or message on a legal nonconforming sign may be altered, replaced, repainted, and repaired provided that the nonconformity of the sign is not increased. Nothing in this chapter shall be interpreted as requiring a sign to be brought into conformance with this title if it is changed only to the extent that the face area is changed, but not increased in size or altered in shape.

5.

Temporary Signs. Any signs in existence at the time this title becomes effective that were previously permitted as temporary signs may only remain in use consistent with the requirements of this title. Any temporary signs that are no longer permitted shall be removed within sixty (60) days of the effective date of the ordinance codified in this title. Any nonconforming temporary signs shall be considered to be in violation of this title and shall be subject to the provisions of Chapter 17.52, Enforcement and Penalties.

(Ord. 04-09 § 10.5)

* See also: Chapter 17.16, Zoning Districts.