The use of a lot of record which is nonconforming because of size shall be regulated by this article.

(Code 1985, § 31.501; Code 1989, § 19-181)

Nonconforming uses are regulated as follows:

(1)

They may be continued.

(2)

They may be expanded or structurally altered as hereinafter provided unless located in district A. A nonconforming use in district B, which is a permitted use in a less restrictive district, may be enlarged or changed by horizontal expansion upon, but not beyond, the tract or lot of record upon which it is located as of the date such a use becomes nonconforming; and any enlargement or expansion shall not encroach upon any open space upon such lot that would be required as a yard if the use were a conforming use in the district in which it is located.

(3)

They shall not be enlarged or expanded vertically except for the addition of cooling, heating, exhaust, ventilating appurtenances or facilities.

(4)

If a nonconforming use or structure is damaged or destroyed to an extent of more than 60 percent of its fair market value by fire, explosion, act of God, or the public enemy, then any restoration or new construction shall be for a permitted or conforming use, except that if the lot upon which such damage or destroyed nonconforming use was located is adjacent on both side lot lines to lots each occupied by a nonconforming use at the time a building is requested for restoration or new construction, then such zoning permit may be granted; provided that there shall be no open storage upon the premises and there is compliance with the yard requirements for permitted uses in the district in which the use is to be located.

(5)

The computing of the percentage of damage or destruction to a nonconforming use composed of a group of individual structures which are principal buildings shall be based on the fair market value of the entire development comprising the group and not the individual structure.

(6)

If a nonconforming use of any structure or premises is voluntarily discontinued for a period of one year, the use of the same shall thereafter conform to the requirements of the district in which it is located. The board of adjustment shall have the power to grant an extension not to exceed six calendar months when warranted by evidence presented to the board of adjustment.

(7)

A nonconforming use may be changed to another use of the same or a more restrictive district, subject to the other regulations of this chapter. If a nonconforming use is changed to a use permitted in a more restrictive district or to a conforming use, it shall not be changed back to a use of the original less restrictive district.

a.

Special uses existing in a permitted district at the time of adoption of this chapter may not expand without a special permit upon the lot of record upon which it is located.

b.

No accessory use in any district shall be construed as permitting the keeping of articles, goods, or materials in the open or exposed to the public view. When necessary to store or keep such materials in the open, the storage area shall be enclosed by a solid fence at least six feet in height, and no material will be stacked or stored higher than said fence.

(8)

Any business establishment which occupies a district B classified lot and has been inoperative for a period of one year or more shall, along with lot, be subject to reclassification by the city council. Business operations cannot resume on said lot unless passed upon by the city council. Such establishment must always be kept in good repair and its grounds must be maintained to promote the general health, safety, morals, and general welfare of the community.

(Code 1985, § 31.502; Code 1989, § 19-182)

(a)

Purpose. It is the declared purpose of this section that the nonconforming uses be eliminated and be required to comply with the regulations of this chapter, having due regard for the property rights of the persons affected, the public welfare and the character of the surrounding area.

(b)

Amortization of nonconforming uses.

(1)

Determination of need for compliance. Any person who resides or owns real property in the town may request that the board of adjustment establish a compliance date for a nonconforming use. Upon receiving such a request, the board shall determine whether there is a public necessity for compliance with the zoning regulations. The following factors must be considered by the board in determining the public necessity for compliance:

a.

The character of the surrounding neighborhood.

b.

The degree of incompatibility of the use to the zoning district in which it is located.

c.

The effect of the nonconforming use on the surrounding area and the effect of its cessation on that area. If the board finds that there is not a public necessity for compliance with the zoning regulations, the board shall request the city council to consider initiating a public hearing to determine the proper zoning of the property on which the use is located.

(2)

Determination of amortization period.

a.

The board shall provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period if:

1.

The board finds that there is a public necessity for compliance with the zoning regulations;

2.

The city council decided not to initiate a public hearing after being requested by the board to consider such initiation; or

3.

The final decision of the city council following an initiated public hearing does not render the use conforming.

b.

The following factors must be considered by the board of adjustment in determining a reasonable amortization period:

1.

The owner's capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming.

2.

Any costs that are directly attributable to the establishment of a compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages.

3.

Any return on investment since inception of the use, including net income and depreciation.

4.

The anticipated annual recovery of investment, including net income and depreciation.

(3)

Compliance requirement. If the board establishes a compliance date for a nonconforming use, the use must cease operations on that date and it may not operate thereafter unless it becomes a conforming use.

(4)

Definition of owner. For purposes of subsection (b) of this section, the term "owner" means the owner of the nonconforming use at the time of the board's determination of a compliance date for the nonconforming use.

(c)

The right to operate a nonconforming use ceases when the use becomes a conforming use. The issuance of a special use permit does not confer any nonconforming rights. No use authorized by the issuance of a special use permit may operate after the special use permit expires.

(Code 1989, § 19-183; Ord. No. 699, 2-20-2001)