It is the intent of this title to permit nonconforming uses to continue until they are removed, but not to encourage their survival. It is further the intent of this title that nonconforming uses shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone. (Ord. 2009-05, 9-28-2009)

Nonconforming uses are declared by this title to be incompatible with permitted uses in the zones in which such use is located. A nonconforming use shall not be extended or enlarged after passage of this title by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be generally prohibited in the zone in which such use is located. (Ord. 2009-05, 9-28-2009)

To avoid undue hardship, nothing in this title 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 title and upon which actual building construction has been carried on diligently. (Ord. 2009-05, 9-28-2009)

In any zone in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this title, notwithstanding limitations imposed by the other provisions of this title. Such lot must be in separate ownership and not of contiguous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the zone; provided, that yard dimensions and requirements other than those applying to area or width, or both, of the lot shall conform to the regulation for the zone in which such lot is located. (Ord. 2009-05, 9-28-2009)

If two (2) or more lots or a combination of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this title and if all or part of the lots with no buildings do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purpose of this title, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this title, nor shall any division of any parcel be made which creates a lot with a width or area below the requirements stated in this title. (Ord. 2009-05, 9-28-2009)

If a lawful use involving individual structures, or of a structure and land in combination, exists at the effective date of adoption or amendment of this title that would not be allowed in the zone under the terms of this title, the lawful use may be continued so long as it remains otherwise lawful subject to the following provisions:

   A.   No Alteration Unless Changing To A Permitted Use; Exception: No existing structure devoted to a use not permitted by this title in the zone in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the zone in which it is located unless the structure is a personal residence and will continue to be used as such;

   B.   No Extension To Occupy Additional Land Area: No nonconforming use shall be extended to occupy any additional land area;

   C.   Change Of Nonconforming Use To Another Nonconforming Use: If no structural alterations are made, any nonconforming use of a structure or structure and land may, upon the issuance of a special use permit by the commission, be changed to another nonconforming use provided that the commission shall find that the proposed use is equally appropriate to the zone as the existing nonconforming use. In permitting such change, the commission may require appropriate conditions and safeguards in accord with other provisions of this title;

   D.   Former Nonconforming Use Not To Be Resumed: Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the zone, and the nonconforming use may not thereafter be resumed;

   E.   Discontinuance Or Abandonment: When a nonconforming use of a structure, or structure and land in combination, is discontinued or abandoned for more than one year (except when government action impedes access to the premises), the structure, or structure and land in combination, shall not thereafter be used except in conformity with the regulations of the zone in which it is located;

   F.   Continuance Of Nonconforming Use:

      1.   If the nonuse continues for a period of one year or longer, the county shall, by written request, require that the owner declare his intention with respect to the continued nonuse of the improvements in writing within twenty eight (28) days of receipt of the request. If the owner elects to continue the nonuse, they shall notify the county in writing of their intention and shall post the property with notice of their intent to continue the nonuse of the improvements. They shall also publish notice of their intent to continue the nonuse in the county's officially designated newspaper. If the property owner complies with the requirements of this subsection, their right to use such improvements in the future for their designed purpose shall continue, notwithstanding any change in the zoning of the property.

      2.   The property owner may voluntarily elect to withdraw the use by filing with the clerk of the county an affidavit of withdrawn use. If the property is redesigned for a different use, the property owner shall be deemed to have abandoned any grandfather right to the prior use of the property.

      3.   For purposes of this section "designed purpose" means the use for which the improvements were originally intended, designed and approved pursuant to any applicable planning and zoning ordinances.

      4.   The provisions of this section shall not be construed to prohibit the county from passing or enforcing any other law or ordinance for the protection of the public health, safety and welfare;

   G.   Removal Or Destruction: Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land;

   H.   Property Boundary Adjustment: Where two (2) nonconforming lots are contiguous and a property boundary adjustment is necessary, as determined by the administrator, to accommodate infrastructure or physical limitations such adjustment may be made if it does not impact any other properties or expand any nonconforming uses. (Ord. 2009-05, 9-28-2009)

On any nonconforming structure, or portion of a structure containing a nonconforming use, work may be done on ordinary repairs or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing; provided, that the cubic content existing when it became nonconforming shall not be increased. Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety upon order of such official. (Ord. 2009-05, 9-28-2009)

   A.   Purpose: The intent of this section is to establish a process and standards for allowing building permits on certain parcels that have been classified as nonbuildable and to define the types of parcels that are eligible to apply.

   B.   Standards:

      1.   A parcel shall be deemed legal nonconforming and shall be eligible for a building permit if it meets one of the following standards:

         a.   The parcel met the dimensional standards for the applicable zone at the time it was created;

         b.   A deed (as defined in subsection C of this section) and accompanying legal description for the property was recorded with the Gem County recorder's office prior to June 21, 2006;

         c.   A dwelling, as defined by the international residential code, was constructed or placed on the parcel prior to June 21, 2006; provided, in the event that the dwelling is subsequently damaged or destroyed by fire, flood, explosion, wind, earthquake, war, riot, calamity or other catastrophic event after June 21, 2006, the parcel remains eligible for a building permit.

      2.   Under no circumstance shall a property be deemed eligible for a building permit if:

         a.   Minimum requirements of Southwest district health for a sewage disposal system cannot be met;

         b.   The parcel has no approved vehicular access to a public road;

         c.   The parcel cannot provide minimum fire suppression as required by the fire authority having jurisdiction; or

         d.   There is any type of pending legal action on the property.

      3.   Prior to recognizing an illegal parcel as a legal nonconforming parcel, the property owner shall submit a legal description compliant with Idaho Code and Idaho tax commission rules and acceptable to the county assessor, which shall be recorded with the county clerk.

   C.   Applicability:

      1.   The regulations in subsection B of this section shall apply to all properties that were recorded by conveyance of a warranty deed, quitclaim deed or other legal form of property conveyance (excluding deeds of trust and similar documents used solely for security of debt) and that were of record in the Gem County recorder's office prior to June 21, 2006. In the instance of an unrecorded deed or involuntary transfer under foreclosure of a deed of trust, the applicant may request a waiver to this subsection C1 from the board of county commissioners.

      2.   The boundaries of a parcel being considered under this section shall not have changed except for the following:

         a.   Property boundary adjustments done in accordance with this code in effect at the time of execution;

         b.   Divisions made as the result of the exercise of the powers of eminent domain as defined and allowed for by Idaho Code;

         c.   Divisions made for the expansion or acquisition of road rights of way by a public agency;

         d.   Divisions for conveyance of land to Gem County, a public entity, homeowners' association or public utility for a public or common purpose (well site, drainage site, fire station, school site, park site, etc.); or

         e.   Division of land into quarter-quarter sections or into parcels equal to or more than forty (40) acres without development (building permit) capacity. Division of up to four (4) parcels equal to or more than forty (40) acres is also exempt. (Ord. 2015-01, 11-3-2014)