This chapter’s regulations are intended to permit certain nonconforming uses, lots, and structures to continue to exist in order to minimize unjust takings of private property rights that may result from the enactment of new land use regulations by this Code.

(Ord. 87-2025. Passed 1-12-26.)

   Any application for a permit concerning the erection or modification of a structure or the initiation or change of a land use, having been submitted to the Planning Commission and having included all application materials required by the Code in effect at the time of the application’s receipt by the City, shall be reviewed by the City, Planning Commission, City Council, Board of Zoning Appeals, or any other relevant City entity pursuant to the standards of the Code in effect at the time of the application’s receipt by the City. Future modifications or amendments sought by an applicant after approval of such a qualifying application shall be reviewed in accordance pursuant to the standards of the Code in effect at the time of the applicant’s submission of such modifications.

(Ord. 87-2025. Passed 1-12-26.)

   Definitions related to nonconformities may be found in Title Nine "Glossary of Terms”.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming lot may continue to exist, subject to the provisions of this section.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming lot may be subdivided into two or more lots, provided that none of the post-subdivided lots exceeds the nonconforming nature of the pre-subdivided lot. For example, if a pre-subdivided lot is nonconforming due to a narrower-than-allowed lot width, none of the post-subdivided lots shall have a lot width that is narrower than that of the pre-subdivided lot.

(Ord. 87-2025. Passed 1-12-26.)

   No nonconforming lot shall be consolidated with one or more other lots, unless the resulting consolidated lot fulfills one of the following:

   (A)    The resulting consolidated lot conforms to all lot area, frontage, width, and depth dimensions required by this Code; or

   (B)    The resulting consolidated lot does not conform to all lot area, frontage, width, and depth dimensions required by this Code, but the resulting consolidated lot conforms to the lot dimensions required by this Code to an equal or greater degree than each of the lots prior to consolidation.

      (Ord. 87-2025. Passed 1-12-26.)

   Any nonconforming lot may be improved with structures; such structures shall be subject to regulations as applied by this Code. Any nonconforming lot may be put to use, provided that the land use is in full compliance with the terms of this Code.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming use may be continued, subject to the terms of this section. Such continuance shall not require a new zoning permit from the City under this Code; however, if a landowner desires a zoning permit acknowledging a nonconforming use’s right to continue, the owner of the land under which the nonconforming use is being conducted may apply to the City for such a zoning permit under the terms of Title Seven "Administration and Procedures”.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming use may be changed to an allowed use--whether a use subject to administrative review or a use subject to conditional use review--subject to the procedural and permitting requirements as described in Title Seven "Administration and Procedures”.

(Ord. 87-2025. Passed 1-12-26.)

   The specific nature of a nonconforming use may be changed by obtaining a zoning permit where all of the following conditions are satisfied:

   (A)    Such change of specific nature of the use does not constitute a change in the use term, as defined by this code’s Title Three "Land Use Standards”; and

   (B)    Such change in specific nature of the land use is unlikely to result in a greater risk to the public health, safety, or welfare as compared to the existing specific nature of the nonconforming use, according to the professional opinion of the Director of Planning and Development; and

   (C)    Such change in specific nature of the land use does not constitute an expansion of the nonconforming use, except as allowed by this Chapter.

   (D)    To assist the reader in interpreting this regulation, the following examples are provided:

      (i)    For example, a nonconforming industrial fluids storage use, which previously stored diesel fuels but wishes to change to the storage of a more carcinogenic fluid, may be determined by the Director of Planning and Development to be likely to increase its risk to public health, safety, and welfare, and, in this case, the change of the specific nature of the nonconforming use may not be permitted.

      (ii)    For example, a nonconforming restaurant use, which serves burritos and wishes to change its specific nature, i.e., change the menu to smoothies, including a name change from Burrito Shack to Blender Cafe, may be determined by the Director of Planning and Development to be unlikely to increase its risk to public health, safety, and welfare, and, in such case, may be permitted to make the change from one restaurant use to another restaurant use.

      (iii)    For example, a nonconforming commercial use specializing in home insurance sales may apply for a change in its specific nature, i.e., to a hearing aid and medical device sales use, and the Director of Planning and Development may determine that the change of one commercial use (Indoor Sales or Services) to another commercial use (Indoor Sales or Services) is not likely to increase the risk to public health, safety, and welfare, and, therefore, the change of the specific nature of the nonconforming use may be permitted.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming use may not be expanded in its intensity, including in its hours of operation, average number of labor hours per week, or capacity for customers, and a nonconforming use may not be expanded in floor area or in the lot area dedicated to the use; notwithstanding the foregoing, a nonconforming use may be expanded into a portion of the lot or structure that was manifestly arranged for such use at a time when the use was lawful, and an expansion in intensity of the use is permitted where proportionate to such expansion in area. To assist the reader in interpreting this regulation, the following examples are provided:

   (A)    For example, there is a nonconforming restaurant use that includes a special event space on the same lot that, while unused in the past, was manifestly arranged to hold special events, including a catering assembly area, storage for seating and tables, and a bar, and such special event space was a lawful use of this lot at the time of its establishment. The nonconforming restaurant use may expand its intensity of use by expanding into that space.

   (B)    For example, a legal nonconforming brewery use wishes to expand its footprint by using several of its parking spaces for barley grain storage; as the parking spaces were not manifestly arranged as a manufacturing material storage yard at the time of establishment, the expansion of the nonconforming use into that area may not be permitted. (Ord. 87-2025. Passed 1-12-26.)

   Whenever a nonconforming use has been abandoned and such abandonment has been conclusive for a period of at least six (6) months, the nonconforming use shall not be re-established, and any future use of the lot, portion of the lot, or structure where such use had occurred may only occur in conformity with the provisions of this Code.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming structure may continue to exist, provided that all of the following conditions are met:

   (A)    The nonconforming structure does not pose an immediate risk to the public safety, as determined by the City; and

   (B)    The nonconforming structure is not reconstructed, repaired, or expanded, except in accordance with this section.

      (Ord. 87-2025. Passed 1-12-26.)

   Any portion of a nonconforming structure may be put to use, provided that such land use is in full compliance with the provisions of this Code.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming structure may be maintained and repaired, provided that the nonconforming portion of the structure is not enlarged, increased, or extended and that no new nonconforming portion of a structure is created. Note to the reader: a building permit may be required by the building code in order to lawfully conduct certain maintenance and repair activities; to determine the need for a building permit, contact the Building Commissioner.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming structure may be replaced or reconstructed where all of the following conditions are satisfied:

   (A)    The replacement or reconstruction does not result in an increase in the area or volume of the structure out of conformity with a structure-related provision of this Code; and

   (B)    If a nonconforming portion of a structure is replaced or reconstructed, the replacement or reconstruction of that portion of the structure does not occur in a location outside of which formerly contained a nonconforming portion of the structure.

   (C)    To assist the reader in interpreting this regulation, the following example is provided: if an above-ground pool was nonconforming due to violating the side-yard setback provision, it may be replaced, provided such replacement does not result in an increase of the area or volume of the pool or deck that violates the side-yard setback provision, and provided that, if any area or volume of the new pool does violate the side-yard setback provision, the location of such violation does not occur outside of the location of the pre-replacement nonconformity.

   (D)    Note to the reader: a building permit may be required by the building code in order to lawfully conduct certain construction activities; to determine the need for a building permit, contact the Building Commissioner.

      (Ord. 87-2025. Passed 1-12-26.)

   A nonconforming structure may be expanded or reduced, provided that the expansion or reduction does not increase the nonconforming nature of the structure and does not result in any additional nonconforming feature(s).

   (A)    To assist the reader in interpreting this regulation, the following example is provided: a structure that is nonconforming due to its inadequate front setback may be expanded, provided that the expansion does not increase the area or volume of the structure within the required front yard setback and does not violate any other structure-related provision, including height limits, building footprint limits, impervious coverage limits, minimum setbacks from lot lines, or design standards.

   (B)    Note to the reader: a building permit may be required by the building code in order to lawfully conduct certain construction activities; to determine the need for a building permit, contact the Building Commissioner. Please note that a zoning permit needed for this expansion or reduction; see Chapter 1186 “Zoning Permits.” (Ord. 87-2025. Passed 1-12-26.)

   Where this Chapter limits the maintenance, repair, replacement, reconstruction, or expansion of a nonconforming structure based on the previous location of the nonconformity, the City may determine the location or extent of such nonconformity using as-built drawings, building permits, zoning permits, or historical aerial photography, such as that available by Google Earth. (Ord. 87-2025. Passed 1-12-26.)

   Nothing herein shall limit the City’s ability to remedy nuisances by ordering demolitions of structures that are deemed immediate risks to public safety.

(Ord. 87-2025. Passed 1-12-26.)

   In any application, hearing, proceeding, appeal, or dispute involving a nonconforming use or nonconforming structure, the following burdens of proof shall apply.

   (A)    Proof of Establishment of a Land Use or Structure. The landowner bears the burden of demonstrating that the use was lawfully commenced or the structure was lawfully erected, as evidenced by affirmative proof that: (1) the use was commenced or the structure was erected before the change in land use regulations that rendered the use or structure nonconforming; and (2) the use or structure was lawful at the time of commencement or erection.

   (B)    Proof of Abandonment of a Land Use. The City bears the burden of demonstrating the abandonment of a land use, as evidenced by affirmative proof that the landowner intended to abandon the use.

      (Ord. 87-2025. Passed 1-12-26.)

   Nonconforming signs are regulated as nonconforming structures.

(Ord. 87-2025. Passed 1-12-26.)

   Outdoor lighting that was lawfully established prior to the effective date of this Code or, in the case of amendment to this Code, as of the date of adoption of such amendment, and does not now conform to the provisions of Chapter 1159 “Outdoor Lighting Standards” of this Code with respect to lighting color temperature, intensity, positioning, directionality, or duration, is regulated as a nonconforming structure and is subject to the terms of this Title Eight "Nonconformities”.

(Ord. 87-2025. Passed 1-12-26.)

   For any parking area, accessway, garage, driveway, or similar paved area or structure for motor vehicles that was lawfully erected, including having received any certificates or permits as required by the City at the time of erection, but does not conform to the provisions of this Code, including area of the parking structure or number of motor vehicle parking spaces, location of the parking area, number of electric vehicle charging stations, and number of bicycle parking spaces, such parking area or similar paved area or structure for motor vehicles shall be treated as a nonconforming structure. (Ord. 87-2025. Passed 1-12-26.)

   If a use or structure would have been deemed compliant with particular use or design standards in effect at the time that the use or structure was established or constructed, those earlier-enacted standards shall control and the use or structure is not required to comply with later-enacted standards regarding the same subject matter. By way of example: if a shopping center’s landscaping complies with the landscaping and parking standards in effect at the time the shopping center was constructed, compliance with later-enacted landscaping or landscaping standards is not required. However, if a new use is commenced or a new structure is built, it must be in full compliance with the terms of this Code.

(Ord. 87-2025. Passed 1-12-26.)

   This chapter does not allow for the perpetuation of uses or structures that were unlawfully established or constructed. Uses or structures that were unlawfully established or constructed are not considered “nonconforming uses” or “nonconforming structures”; instead, such uses and structures are considered “illegal uses” or “illegal structures” and are subject to all of the provisions of this Code and any other applicable law, including penalties for violations. Likewise, this chapter does not legitimize the unlawful subdivision or consolidation of real property.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming status of a use shall apply to a particular land use on a particular lot of real property. The nonconforming status of a use shall run with the land upon which the nonconforming use was lawfully established. The mere fact that such land has been sold, transferred, or conveyed has no effect on a subsequent owner’s right to continue a nonconforming use that was lawfully established under the ownership of a prior party.

(Ord. 87-2025. Passed 1-12-26.)

   A nonconforming status of a structure shall apply to a particular structure, such as a building or a sign, plus its attachments, such as gutters, stairs, railings, and sconces, on a particular lot of real property. The nonconforming status of a structure shall run with the land upon which the structure was lawfully erected. The mere fact that such a structure has been sold, transferred, or conveyed has no effect on a subsequent owner’s right to maintain and use a nonconforming structure that was lawfully constructed under the ownership of a prior party.

(Ord. 87-2025. Passed 1-12-26.)