(a)

Purpose/applicability.

(1)

Nothing contained in this chapter shall be deemed or construed to prohibit the continuation of a legally established nonconforming use, structure or occupancy, as those terms are defined herein. The intent of this section is to encourage nonconformities to ultimately be brought into compliance with current regulations.

(2)

The term "nonconforming" use shall mean any use lawfully being made of any land, water, or structure on the effective date of this chapter (or of any amendment which renders such use nonconforming), which does not comply with all of the requirements of these regulations as they may be amended. The casual, temporary, or illegal use of land or structures, or land and structures in combination, shall not be sufficient to establish the existence of a nonconforming use or to create rights in the continuance of such use.

(3)

The term "nonconforming characteristic of a conforming use" shall mean a sign, off-street parking or off-street loading, or other matter pertaining to the use of land, water, structures, and premises that is lawfully existing on the effective date of this chapter (or of any amendment which renders such characteristic nonconforming), which does not comply with all of the requirements of this chapter as it may be amended.

(4)

The term "nonconforming structure" shall mean any structure lawfully existing on the effective date of this chapter (or of any amendment which renders such structure nonconforming), which does not comply with restrictions on lot area, lot coverage, height, setbacks, location on the lot, or any such requirements of this chapter as it may be amended (other than use regulations).

(5)

The terms "nonconformity" and "nonconforming" shall mean a nonconforming use, a nonconforming characteristic of a conforming use, a nonconforming structure, or a nonconforming lot that does not comply with the regulations of the applicable zoning district or this chapter. Only legally established nonconformities shall have rights under this section.

(6)

The term "expansion" shall mean an improvement, addition, enlargement, extension, modification to a structure that increases the square footage of the structure, or any increase in activity or operations that intensifies a use.

(7)

For purposes of this section, "legally established" shall apply to the following circumstances:

a.

A lot that does not meet the lot frontage, lot width, lot depth, and/or lot area requirements of the applicable zoning district, provided that such lot met the regulations in effect at the time of platting or at the time the lot was otherwise lawfully created.

b.

A site or improvement that is rendered nonconforming through the lawful use of eminent domain, an order of a court of competent jurisdiction, or the voluntary dedication of property.

c.

An existing use which conformed to the code at the time it was established.

d.

A building and/or site improvement that was permitted in accordance with regulations in effect at the time of permitting or that was approved pursuant to a public hearing.

e.

A building and/or site improvement that had received final site plan approval through a public hearing pursuant to this chapter or through administrative approval or had a valid building permit or is otherwise determined by the director to have been legally authorized.

(8)

The term "substantial damage" shall mean damage of any origin sustained by a structure, where the cost of restoring the structure to its before damaged condition would equal or exceed fifty (50) percent of the adjusted replacement cost of the structure, as assessed through current Marshall and Swift construction cost data publications, before the damage is incurred.

(9)

The term "substantial improvement" shall mean any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the pre-destruction market value of the structure, as determined by the Miami-Dade County Property Appraiser, either:

a.

Before the improvement or repair is started; or

b.

If the structure has been damaged and is being restored, before the damage occurred.

The total cost does not include nonstructural interior finishing, including, but not limited to, finish, flooring and floor coverings, base molding, nonstructural substrates, drywall, plaster, paneling, wall covering, tapestries, window treatments, decorative masonry, paint, interior doors, tile, cabinets, moldings and millwork, decorative metal work, vanities, electrical receptacles, electrical switches, electrical fixtures, intercoms, communications and sound systems, security systems, HVAX grills and decorative trim, freestanding metal fireplaces, appliances, water closets, tubs, and shower enclosures, lavatories, and water heaters, or roof coverings, except when determining whether the structure has been substantially improved as a result of a single improvement or repair, or substantially damaged as a result of a single event.

For the purpose of this definition, substantial improvement is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimension of the structure. The term does not, however, include either

(1)

Any project for improvement of a structure to comply with existing state or local health, sanitary or safety code specifications which are necessary solely to assure safe living conditions; or

(2)

Any alteration of a structure listed on the National Register of Historic Places, or the state inventory of historic places.

(Ord. No. 73-10-46, § XXV(a); Ord. No. 98-12-46, § 1, 1-4-99; Ord. No. 2003-06-24, § 15, 6-23-03; Ord. No. 2018-02-05, § 2, 2-21-18)

Any nonconforming use of land or water (without structures) in the city may be continued so long as it remains otherwise lawful, provided it meets all of the following requirements:

(1)

The nonconforming use shall not be:

a.

Moved in whole or part to an adjacent property not already containing such use; or

b.

Altered or intensified by adding additional nonconforming uses within the confines of the property containing such nonconforming use.

(2)

If the nonconforming use ceases for any reason (except when governmental action impedes access to the premises) for a period of more than ninety (90) consecutive days, any subsequent use of such land or water shall conform to the applicable portions of this chapter. The intent of the owner in ceasing the nonconforming use shall not be considered.

(3)

The land or water which contains the nonconforming use shall not be subdivided.

(4)

Structures which can be used for the nonconforming use shall not be added to the land or water devoted to the nonconforming use.

(Ord. No. 73-10-46, § XXV(b); Ord. No. 2003-06-24, § 15, 6-23-03; Ord. No. 2004-02-09, § 14, 3-15-04)

Any nonconforming use of a structure (or structure and land or water in combination) in the city may be continued so long as it remains otherwise lawful, provided it meets all of the following requirements:

(1)

Alteration, enlargement, reconstruction. The nonconforming use shall not be enlarged, extended, constructed, reconstructed, moved (other than a historic structure listed in the National Register of Historic Places or the Florida Inventory of Historic Places), or structurally altered except for the purpose of changing the use to a use permitted in the zoning district in which it is located, unless it meets the criteria and obtains a permit pursuant to section 30-551 of the Code. The structure containing the nonconforming use shall not be divided or enlarged unless the nonconforming use is discontinued.

(2)

Extension prohibited. The nonconforming use shall not be extended to occupy any additional structure on the same lot or parcel not used for such nonconforming use at the time the nonconformity was established.

(3)

Exception for single-family house. Notwithstanding (a) and (b), if the nonconforming use is a single family residential use, then the structure may be permitted to be enlarged, extended, constructed, reconstructed, moved, or structurally altered as long as the number of dwelling units in the structure is not thereby increased.

(4)

Exceptions for minor changes. The nonconforming use may be extended throughout any part of the structure which was manifestly arranged or designed for such use at the effective date of adoption or amendment of this chapter. Any nonconforming use which occupied a portion of the structure not originally designed or intended for such use shall not be extended to any other part of the structure.

(5)

Changes of use. The nonconforming use may be changed to another nonconforming use of the same character, or to a more restricted but still nonconforming use, if no structural alterations are made and if the director of development services finds that:

a.

The proposed nonconforming use is equally or more appropriate to the zoning district than the existing nonconforming use; and

b.

The relationship of the structure to surrounding properties is such that adverse effects on occupants, neighboring properties, and environmental resources will not be greater than if the existing nonconforming use is continued.

(6)

Conformance with Code required for replaced use. Any structure in or on which the nonconforming use is replaced by a permitted use shall thereafter conform to the use regulations for the zoning district in which such structure is located. The nonconforming use shall not thereafter be resumed, nor shall any other nonconforming use be allowed.

(7)

Discontinued nonconforming use. If a nonconforming use of a structure (or structure and land or water in combination) is discontinued for ninety (90) consecutive days, then such use shall be removed or converted to a conforming use. The intent of the owner in discontinuing the use shall not be considered.

(Ord. No. 73-10-46, § XXV(c); Ord. No. 2003-06-24, §§ 16, 17, 6-23-03; Ord. No. 2004-02-09, § 14, 3-15-04)

If a characteristic of a conforming use is made nonconforming by this chapter as adopted or amended, no change shall thereafter be made in such characteristic of use which increases its nonconformity. Changes may be made which do not increase, or which decrease, such nonconformity.

(Ord. No. 2003-06-24, § 17, 6-23-03)

Any nonconforming structure (or portion thereof) in the city may be continued so long as it remains otherwise lawful, provided it meets all of the following requirements:

(1)

Prohibition against enlargement or alteration. The nonconforming structure or portion thereof shall not be enlarged or altered in a way which increases its nonconformity. However, the structure may undergo minor renovations or repair upon compliance with the requirements set forth in section 30-551 of the Code.

(2)

Compliance upon alteration. Should such structure be moved, altered, or enlarged for any reason for any reason whatever, other than as a result of government action, or repair or renovation as authorized by section 30-551, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.

(3)

Discontinued use of nonconforming structure. If the use of a nonconforming structure is discontinued for ninety (90) consecutive days, then such structure shall be removed or converted to a conforming structure. The intent of the owner in discontinuing the use of the structure shall not be considered.

(Ord. No. 2003-06-24, § 17, 6-23-03)

(a)

Repair or renovation of nonconforming structure. Any property owner wishing to repair or renovate a nonconforming structure shall apply for approval of such changes on forms to be provided by the director of development services. The director shall administratively grant such an application within twenty (20) days of receipt where the applicant has demonstrated all of the following:

(1)

Insubstantial damage or destruction. The proposed repair or renovation follows damage that is not substantial, as defined in section 30-546(5); and

(2)

Insubstantial improvements. The proposed improvements do not constitute a substantial improvement as defined by section 30-546(6) of the Code.

(b)

Effect on period of discontinued use. An application filed pursuant to this section will not prevent the loss of the legal nonconformity after ninety (90) days of the discontinued use, as set forth in section 30-550(3) of the Code.

(c)

Appeal. Any decision made by the director pursuant to section 30-551(a) may be appealed to the city manager within thirty (30) days who shall review the application utilizing the same criteria as reviewed by the director. Any decision of the city manager may be appealed to the city council within ten (10) days. The timeliness of an application shall not be the subject of an appeal to the city council.

(Ord. No. 2003-06-24, § 17, 6-23-03)

If as a result of a governmental taking, either by the city or by another governmental or public agency, by condemnation or negotiation, existing structures, lots, use areas or other permitted uses would, but for this section, become non-compliant or further non-compliant with provisions of this chapter, the following provisions shall apply:

(1)

Purpose/applicability.

a.

The intent of this section is to legalize non-compliance with provisions of this chapter, resulting through the lawful use of eminent domain, including parcels acquired under the "threat of eminent domain," an order of a court of competent jurisdiction, or the voluntary dedication of property. For purposes of this section, the term "threat of eminent domain" shall only commence upon the issuance of a pre-suit notice and written offer pursuant to F.S. § 73.015, as may be amended.

b.

This section shall only apply to those properties affected by the following described public improvement project:

1.

Campbell Drive and U.S. 1 Improvement Project: This public project includes improvements to Campbell Drive/SW 312 ^th Street/N.E. 8 ^th Street from N.W. 1 ^st Avenue to N.E. 12 ^th Avenue as well as improvements to S.R. 5/U.S. 1/S. Dixie Highway from N.E. 6 ^th Avenue to N.E. 11 ^th Street.

c.

For the purpose of this section, the term "legal non-conformity" shall refer to the non-compliance with applicable provisions of this chapter resulting from the lawful use of eminent domain, including parcels acquired under the "threat of eminent domain," an order of a court of competent jurisdiction, or the voluntary dedication of property.

d.

For the purpose of this section, the term "expansion" shall mean an improvement, addition, enlargement, extension, or modification to a structure that increases the square footage of the structure.

(2)

Legal nonconforming lots.

a.

Development on a legally established, non-conforming lot that does not meet the lot frontage and/or lot area requirements of this chapter shall be permitted provided the development meets all other requirements of this chapter.

b.

Expansions of structures on legally established, non-conforming lots shall be permitted in accordance with this chapter.

(3)

Legal nonconforming uses.

a.

A legally established non-conforming use may continue.

b.

If a legally established nonconforming use is discontinued for a period of more than one (1) year, the use may not be reestablished. A use shall be considered discontinued once the activities or commerce, essential to the continuation of the use are abandoned. Discontinuance due to acts of force majeure shall not constitute abandonment, provided that a good faith effort is made to reestablish the use.

c.

No such legal non-conforming use shall be enlarged or increased to occupy a greater area of land or structure, except that expansions of legal non-conforming single-family residences shall be permitted.

(4)

Legal nonconforming structures.

a.

To prevent changes in regulation from unduly burdening property owners, legal non-conforming structures may continue to be used and maintained. Expansions, repairs, alterations, and improvements to legally established non-conforming structures shall be permitted only in accordance with the following provisions:

1.

Internal and external repairs, alterations and improvements that do not increase the square footage of the legal non-conforming structure shall be permitted.

2.

Expansions to a legal non-conforming structure shall be permitted, subject to the following:

(a)

If the total square footage of the proposed improvement is less than fifty (50) percent of the structure's net square footage at the time it became legally non-conforming, the improvement shall comply with this chapter.

(b)

If the total square footage of the proposed improvement is equal to, or exceeds fifty (50) percent of the structure's net square footage at the time it became legally non-conforming, the entire structure and site improvements shall be brought into compliance with this chapter.

(c)

Once the cumulative total of additional square footage or improvements equals to fifty (50) percent of the structure's net square footage at the time it became legally non-conforming, no additional expansions shall be permitted and the entire structure and site improvements shall be brought into compliance with this chapter.

(d)

For purposes of this section, net square footage shall refer to the square footage indicated on the building permit or determined through equivalent evidence, including, but not limited to aerial photographs, tax roll information, certificates of use or occupancy, or design professional certifications.

b.

If a legal non-conforming structure is damaged by fire, flood, explosion, wind, war, riot or any other act of force majeure, repairs shall be subject to the following provisions:

1.

If the repair/replacement cost is less than fifty (50) percent of the value of the structure based upon the average of two (2) independent appraisals, the structure may be reconstructed up to the same building height and within the same building footprint existing prior to the damage, provided that an application for final building permit has been submitted within twelve (12) months of the date of such damage unless extended by the city.

2.

If the repair/replacement cost is equal to or exceeds fifty (50) percent of the value of the structure based upon the average of two (2) independent appraisals, the structure and site improvements shall be brought into compliance with this chapter.

3.

Routine internal and external maintenance, repairs and material replacement such as re-roofing, painting, window or door replacement, mechanical equipment repair and replacement, plumbing and electrical maintenance, and similar repair, maintenance, and replacements shall be permitted.

c.

If a legal non-conforming structure is deemed to be unsafe, pursuant to chapter 6 of this Code, and demolition is required, the structure shall be rebuilt in accordance with current regulations.

d.

In addition to the requirements of this section, all repairs, improvements, and expansions to a legal non-conforming structure shall comply with the Florida Building Code.

(Ord. No. 2018-02-05, § 2, 2-21-18)

The limitations and restrictions on the redevelopment, reconstruction, and repair of nonconformities shall not apply to affordable housing developments that have been approved pursuant to section 30-382 of the City Code, which are, (i) located on parcels designated with a future land use of medium density residential (MRU) and zoned GP-government property district, west of U.S. 1, or (ii) located on parcels with a future land use and zoning designations of Southwest Planned Urban Neighborhood and in the civic/government subarea. Changes that increase or decrease such nonconformities may be permitted and/or made to any such approved affordable housing development(s), provided that such changes do not exceed the maximum permitted residential density.

(Ord. No. 2022-04-10, § 2, 4-27-22; Ord. No. 2024-06-17, § 2, 6-26-24)

The limitations and restrictions on the enlargement, expansion, construction, reconstruction, in whole or in part within a property or onto an adjacent property or contiguous property, or a property across a "minor street" (as defined in section 25-1 of the City Code), not already containing such use, shall not apply to existing schools, including charter schools, having received site plan approval pursuant to section 30-47 of the City Code, which are located within the following geographic areas of the city:

(1)

West of US-1, East of North Krome Avenue, South of NE 11 ^th Street, and North of SE 8 ^th Street/SW 328 ^th Street.

(2)

West of Krome Avenue, East of NW 1 ^st Avenue, South of NW 6 ^th Street and North of NW 5 ^th Street.

Notwithstanding the foregoing, any existing school expanding across a "minor street" may only expand in one (1) direction. Expansion of an existing school permitted under this section shall require approval of a site plan amendment.

(Ord. No. 2024-08-25, § 2, 8-21-24)