Nonconformities, which are sometimes referred to as “legal nonconformities,” are lots, uses and structures that were lawfully established but—because of the adoption of new or amended regulations—no longer comply with one or more zoning district requirements. This article contains the regulations governing such situations.

Occasionally, lots, uses and structures that were lawfully established (i.e., in compliance with any and all regulations in effect at the time of their establishment) have been made nonconforming because of changes in Development Code requirements that apply to the subject property (e.g., through zoning district map amendments, amendments to the text of this Development Code or annexation) or because of other governmental action (e.g., through right-of-way acquisition). The regulations of this article are intended to clarify the effect of such nonconforming status and avoid confusion with “illegal” buildings and uses (those established in violation of applicable zoning district regulations). The regulations of this article are also intended to:

1. 11.102.A
   Recognize the interests of landowners in continuing to use their property for uses and activities that were lawfully established;
2. 11.102.B
   Promote maintenance, reuse and rehabilitation of existing buildings; and
3. 11.102.C
   Place reasonable limits on nonconformities that have the potential to adversely affect surrounding properties.

Any nonconformity that existed on the effective date specified in Sec. 1.300, or any situation that becomes nonconforming upon adoption of any amendment to this Development Code, may be continued in accordance with the regulations of this article unless otherwise expressly stated.

1. 11.104.A
   The burden of proving that a nonconformity exists (as opposed to a violation of this Development Code) rests entirely with the subject owner.
2. 11.104.B
   The City Planner is authorized to determine whether adequate proof of nonconforming status has been provided by the subject owner.
3. 11.104.C
   Building permits, lawfully recorded plats, aerial photography and other official government records that indicate lawful establishment of the use, lot or structure constitute conclusive evidence of nonconforming status. If such forms of conclusive evidence are not available, the applicant may submit and the City Planner may consider other forms of evidence to document nonconforming status. Examples of commonly available evidence include:

   1. 1.
      Professional registrations or business licenses;
   2. 2.
      Utility billing records;
   3. 3.
      Rent records;
   4. 4.
      Advertisements in dated publications;
   5. 5.
      Listings in telephone or business directories; and
   6. 6.
      Notarized affidavits affirming the date of lawful establishment of the use, lot or structure.
4. 11.104.D
   The City Planner’s decision on nonconforming status determinations may be appealed in accordance with Sec. 12.1000.

1. 11.105.A
   Nonconformities must be maintained to be safe and in good repair.
2. 11.105.B
   Repairs and normal maintenance necessary to keep a nonconformity in sound condition are permitted unless the work increases the extent of the nonconformity or is otherwise expressly prohibited by this Development Code.
3. 11.105.C
   Nothing in this article is intended to prevent nonconformities from being structurally strengthened or restored to a safe condition in accordance with an order from a duly authorized public official.

Nonconforming status runs with the land and is not affected by changes of tenancy, ownership, or management.

A nonconforming lot is a lawfully platted and recorded lot that does not comply with all applicable minimum lot area, lot width, lot frontage or lot depth regulations of the zoning district in which the lot is located.

A nonconforming lot may be used as a building site and developed with a use allowed in the subject zoning district.

1. 11.203.A
   Development on nonconforming lots must comply with the lot and building regulations of the subject zoning district unless otherwise expressly stated.
2. 11.203.B
   Nonconforming lots may not be adjusted in size or shape to create additional nonconformity or increase the degree of nonconformity for lot area, lot width, setbacks or other applicable lot and building regulations. Lot area, lot width, lot frontage, lot depth or other lot shape adjustments that do not increase the extent of nonconformity are allowed.

A nonconforming use is a land use that was lawfully established in accordance with any and all zoning district regulations in effect at the time of its establishment but that is no longer allowed by the use regulations of the zoning district in which the use is now located.

A nonconforming use may be changed to any other use that is allowed in the subject zoning district. Once changed to a conforming use, a nonconforming use may not be re-established.

1. 11.303.A
   Except as otherwise expressly stated, a nonconforming use may be expanded into another part of the same building as that building existed on the date that the use became nonconforming, provided that the City Planner determines that such expansion:

   1. 1.
      Will not result in a violation of off-street parking or loading requirements; and
   2. 2.
      Will not result in the addition of floor area to the building to accommodate the use expansion that does not comply with setbacks.
2. 11.303.B
   Nonconforming open-air uses may not be expanded beyond the area occupied when the open-air use became nonconforming.

A building in which a nonconforming use is located may be remodeled or otherwise improved as long as the remodeling or improvements do not violate the other regulations of this article.

A nonconforming use may not be moved in whole or in part to another location unless allowed under this code at the new location.

1. 11.306.A
   Abandonment

   1. 1.
      Once a nonconforming use is abandoned, its nonconforming status is lost and any new, replacement use must comply with the regulations of the zoning district in which it is located.
   2. 2.
      A nonconforming use is presumed abandoned when the use is discontinued or ceases for a continuous period of 2 years or more.
   3. 3.
      The presumption of abandonment may be rebutted upon showing, to the satisfaction of the City Planner, that during such period the owner of the land or structure has been:

      1. a.
         Maintaining the land and structure in accordance with all applicable City requirements and did not intend to discontinue the use;
      2. b.
         Actively and continuously marketing the land or structure for sale or lease for that particular nonconforming use; or
      3. c.
         Engaged in other activities that affirmatively prove there was no intent to abandon.
   4. 4.
      Periods of discontinued use caused by government action, accidental fire or natural disaster are not counted in calculating the length of discontinuance.
2. 11.306.B
   Change to Conforming Use

   If a nonconforming use is changed to a conforming use, no matter how short the period of time, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited.

3. 11.306.C
   Damage or Destruction

   1. 1.
      Accidental Damage or Destruction

      When a building containing a nonconforming use is destroyed or damaged by acts of God or accidental fire, the building and the use may be restored or repaired, provided that no new nonconformities are created and that the existing extent of nonconformity is not increased. A building permit to reconstruct the destroyed or damaged structure must be obtained within 18 months of the date of occurrence of such damage.

   2. 2.
      Intentional Destruction

      When a building containing a nonconforming use is demolished, damaged or destroyed by causes within the control of the owner and the extent of demolition, damage or destruction is more than 50% of the fair market value of the structure, as determined by the property owner’s certified appraiser, the use may not be reestablished except in compliance with all regulations applicable to the zoning district in which it is located.

4. 11.306.D
   Accessory Uses

   No accessory use to a principal nonconforming use may continue after the principal nonconforming use has ceased.

A nonconforming structure is any building or structure, other than a sign, that was lawfully established but no longer complies with the lot and building standards of the zoning district in which it is located. Signs are governed by the nonconforming sign provisions of Sec. 8.800.

1. 11.401.A
   Use

   A nonconforming structure may be used for any use allowed in the district in which the structure is located.

2. 11.401.B
   Alterations and Expansions

   Alterations, including enlargements and expansions, are permitted if the proposed alteration or expansion complies with all applicable lot and setback standards and does not increase the extent of the nonconformity. A building with a nonconforming front setback, for example, may be expanded to the rear as long as the rear expansion complies with applicable rear setback standards and all other applicable lot and building standards. On the other hand, a multi-unit residential building that is nonconforming with regard to density (i.e., contains more dwelling units than allowed by the underlying zoning district regulations) may not be expanded to add additional dwelling units.

A nonconforming structure may not be moved in whole or in part to another location unless the structure meets all the requirements of this Code.

1. 11.403.A
   Damage or Destruction

   1. 1.
      Accidental Damage or Destruction

      When a nonconforming structure is destroyed or damaged by acts of God or accidental fire, the building and the use may be restored or repaired, provided that no new nonconformities are created and that the existing extent of nonconformity is not increased. A building permit to reconstruct the destroyed or damaged structure must be obtained within 18 months of the date of occurrence of such damage.

   2. 2.
      Intentional Damage or Destruction

      When a nonconforming structure is demolished, damaged or destroyed by causes within the control of the owner and the extent of demolition, damage or destruction is more than 50% of the fair market value of the structure, as determined by the property owner’s certified appraiser, the use may not be reestablished except in compliance with all regulations applicable to the zoning district in which it is located.

A nonconforming development feature is any aspect of a development—other than a nonconforming lot, nonconforming use or nonconforming structure—that was lawfully established in accordance with zoning district regulations in effect at the time of its establishment but that no longer complies with one or more standards of this Development Code. Common examples are off-street parking or loading areas that contain fewer spaces than required by current standards or otherwise do not comply with applicable regulations and sites that do not comply with current landscaping and screening requirements.

Nonconforming development features may remain except as otherwise expressly stated in this Development Code, but the nature and extent of nonconforming site features may not be increased except as otherwise expressly stated in this Development Code.