It is the purpose of this article to provide for the regulation of uses, buildings, structures or lots which legally existed prior to the effective date of this ordinance but which fail to comply with one or more of the applicable regulations or standards established by this ordinance or subsequent amendment of this ordinance, or which have been rendered nonconforming due to circumstances which were not self-created. This ordinance recognizes that nonconforming uses or situations that are otherwise lawful, have a vested property right so long as they remain lawful otherwise. It is the intent of these regulations to specify those circumstances and conditions under which such nonconformities shall be permitted to continue and expand.

A.

These regulations apply to nonconforming uses or situations which were originally allowed and have been maintained over time. These uses or situations have legal nonconforming status and may continue so long as they are legal otherwise. Land uses or situations that were not permitted when they were established and have been maintained over time have no legal right to continue and shall be terminated, unless granted legal nonconforming status by the procedure outlined in section 35-63.

B.

In certain cases, nonconformities may be permitted to be upgraded when it can be shown that such action will not be harmful and will be beneficial to the surrounding properties, the neighborhood, or the community; and that the goals of the comprehensive plan and other local plans will not be impeded by the continuation of the nonconformity. Nonconforming uses or situations that have a lesser impact on the immediate area have fewer restrictions than those with greater impacts. For instance, nonconforming uses in residential zones pose greater impacts and the expansion of such are regulated more strictly to ensure the protection of continuing residential neighborhood livability and character. In contrast, expansion of nonconforming residential developments in residential zones are treated more liberally because they do not represent a major disruption to the neighborhood and they provide needed housing opportunities.

A.

Purpose, review and determination. This section provides information on how legal nonconforming status is determined for a use, site or situation. The current legal use will be identified based on the classifications of permitted land use for the particular district as shown in exhibit 35-28.

B.

Evidence. If the Director determines that evidence is insufficient or unsatisfactory, a determination of legal nonconforming status review shall be required in accordance with this section.

1.

Evidence required—Use or situation allowed when established.

a.

Building, land use or development permits; or

b.

Zoning codes or maps.

2.

Evidence required—Use or situation maintained over time.

a.

Building, land use or development permits;

b.

Income tax records;

c.

Utility bills;

d.

Business licenses;

e.

Listings in telephone, business or Polk directories or similar publications; or

f.

Advertisements in dated publications.

C.

Procedure.

1.

Application by owner or staff initiated. The determination of legal nonconforming status review may be initiated by staff or may take place upon application by the property owner, who shall provide copies of evidence to the Director. The review shall be conducted by the Director or the Director's designee. The report, including evidence, documentation and findings, shall be transmitted to the applicant, with a copy maintained in the Department office.

2.

Status report, certificate. After the review has been completed, the Director or the Director's designee shall issue a report, including evidence and findings, which shall be transmitted to the applicant, with a copy maintained in the Department office. If the Director determines that the nonconforming use or situation was permitted at the time and has been maintained over time, the Director will issue a certificate of nonconforming use or situation status to the applicant.

3.

Appeals. The applicant may appeal the Director's determination to the Board of Adjustment in conformance with the procedures in subsection 35-73.C.

A.

Ownership. Changes in ownership shall not affect the nonconforming status.

B.

Change to a legal conforming situation. A nonconforming use or situation may be changed by right to a legal conforming status. Such change shall terminate nonconforming rights.

C.

Change to a conditional use. A nonconforming use may be changed to a conditional use in conformance with the procedures and standards of subsection 35-73.A. Conversion to a conditional use shall terminate nonconforming rights.

D.

Maintenance and repair.

1.

Routine maintenance/repair. The maintenance and minor repair of a nonconforming use or nonconforming structure is permitted.

2.

Restoration and repair due to damage.

a.

A nonconforming use, other than a one-family or two-family dwelling, damaged to less than 75 percent of the current fair market value may be restored in compliance with adopted building, fire and life safety codes provided the work is commenced within six months from the date of damage, and all portions of the structure being restored are not and were not on or over a property line and the certificate of occupancy is issued within one year from the date of damage. If damage exceeds 75 percent, restoration or repair shall not be permitted unless the restoration brings the use into conformance with this ordinance and applicable adopted codes.

b.

A nonconforming, one- or two-family dwelling, damaged by more than 75 percent of its current fair market value, may be restored or repaired only if: 1) such restoration or repair work complies with applicable building, fire and life safety codes; and 2) the restoration or repair work is substantially commenced within 365 days from the date of damage; and 3) the square footage of the residence is not expanded or increased, except as provided in this section. The Director may extend the deadlines for commencement of completion of such restoration or repair work upon showing that the applicant, due to circumstances beyond the applicant's control, cannot comply despite the exercise of reasonable diligence.

c.

For purposes of this section, fair market value shall mean the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is consummation of a sale as of a specified date and passing of title from seller to buyer under conditions whereby:

(1)

Buyer and seller are typically motivated;

(2)

Both parties are well-informed or well-advised, and each acting in what he or she considers his or her own best interest;

(3)

A reasonable time is allowed for exposure in the open market;

(4)

Payment is made in terms of cash in US dollars or in terms of financial arrangements comparable thereto;

(5)

The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.

The value of the lot or parcel shall be excluded for purposes of this section.

A.

Continued operation. Except as otherwise provided in this section, any nonconforming use, structure, lot of record, sign or landscaping or parking existing on the effective date of this ordinance or subsequent amendment thereto may be continued so long as it remains otherwise lawful. All nonconformities shall be encouraged to convert to conformity whenever possible. Additionally, any structure currently under construction that has been classified as a nonconforming use shall be allowed to continue so long as 50 percent of the structure has been completed.

B.

Change of use. Any use of land or structure may be changed to another nonconforming use of the same nature or less intensive nature if no structural alterations are involved and if it is found that the relation of the structure and proposed use to surrounding property is such that adverse effects on occupants and neighboring property will not be greater than if the original nonconforming use continued. Approval for such a change shall be processed through a special exception use permit review procedure in conformance with subsection 35-73.D.

The following factors shall be used to determine if the use may be changed:

1.

The character and history of the use and of development in the surrounding area.

2.

The comparable degree of noise, vibration, dust, odor, fumes, glare or smoke detectable at the property line.

3.

The comparative numbers and kinds of vehicular trips to the site.

4.

The comparative amount and nature of outside storage, loading, and parking.

5.

The comparative visual appearance.

6.

The comparative hours of operation.

7.

The comparative effect on existing vegetation.

8.

The comparative effect on water drainage.

9.

Other factors which tend to reduce conflicts of incompatibility with the character or needs of the area.

C.

Improvements and restoration of nonconformities. A nonconforming structure shall not be enlarged or altered in any way which increases its nonconformity except under the following conditions:

1.

Alteration is for the express purpose of converting the structure to a conforming use.

2.

Alteration will ensure compliance with the health and safety requirements of the City, but such alteration shall only be permitted to the extent minimally necessary to bring the structure into compliance with the health and safety regulations.

3.

A building containing one or more dwelling units, in districts where such occupancy is a nonconforming use, may be altered in ways which will enhance the livability of the dwelling unit or to ensure compliance with the health and safety regulations of the City. Under no circumstances shall these alterations result in an increase in the number of dwelling units in the building, or the bulk of the building.

4.

Repairs and non-structural alterations may be made to a nonconforming building in conformance with subsection 35-64.D.

5.

A parking area on a lot with a nonconforming building may be paved in accordance with the provisions of section 35-58.

6.

A fence may be erected in accordance with the provisions of section 35-59 on a lot with a nonconforming building.

7.

Nothing contained in exceptions 1 through 6 above shall be construed to permit an enlargement of a nonconforming building.

D.

Discontinuance of nonconformity.

1.

Illegal use. Any use or situation that was not established or constructed in conformance with this ordinance or a previous zoning ordinance is an illegal use and shall be brought into conformance with this ordinance, subject to determination of legal nonconforming status review in accordance with section 35-63.

2.

Discontinuance of use. Any nonconforming use or situation, the use of which has been discontinued for a period of 270 consecutive calendar days, shall be presumed to be abandoned and shall not thereafter be re-established except in full compliance with this ordinance. Evidence of abandonment of the nonconforming use is not required.

3.

Discontinuance due to accidental destruction. No building which has been accidentally damaged by fire or other causes, to the extent of more than 75 percent of a non-residential building in a residential district and 75 percent of a nonconforming residential building in a residential district immediately prior to damage, of its fair market value, based on an appraisal performed by a certified real property appraiser, shall be restored except in conformity with the regulations of this section, and all rights as a nonconforming use are terminated.

4.

Discontinuance due to intentional destruction. A building or structure which has been intentionally damaged by fire or other causes within the control of the applicant shall not be permitted to be rebuilt or re-established.

E.

Nonconforming lots.

1.

When a non-conforming lot can be used in conformity with all applicable regulations except minimum lot sizes or dimensions, the lot may be used as if it conformed to district regulations.

2.

The Board of Adjustment may authorize the development of a non-conforming lot that cannot be developed in conformance with required setbacks upon finding that:

a.

The property cannot reasonably be developed for authorized uses without a variance.

b.

Variances are necessitated by the size, shape or configuration of the non-conforming lot.

c.

The property can be developed as proposed without any significantly adverse impacts on the adjacent properties or upon the public health or safety.

d.

The proposed variances are the least required to allow reasonable use of the property.

F.

Nonconforming single-family structures.

1.

A structure originally constructed as a single-family home, and subsequently converted to a non-residential or multiple family use, may be converted back to a non-conforming single-family residential use regardless of the zoning of the property. The resulting single-family home use shall be the only principal building on the lot. The home shall comply with adopted building, fire, and life safety codes.

(Ord. No. 16466, § 6, 10-22-2024)

A.

Nonconforming residential use. A nonconforming residential use existing on May 6, 2002 is eligible for a one-time expansion after the effective date of this ordinance, but shall not be expanded in scope or area by greater than 20 percent of the gross floor area of the building in existence on the above-referenced date.

B.

Nonconforming business use. A nonconforming business, commercial or industrial use may be expanded as follows:

1.

Location in a Non-Residential District. A nonconforming business use that requests expansion or enlargement shall be located in a non-residential district.

2.

Structural expansion. Structural expansion shall not exceed 20 percent of the gross floor area of the structure or building in existence on May 6, 2002, provided that the business must provide adequate parking for the existing and expanded business area.

3.

Expansion of nonconforming use in structure or building. Where a nonconforming use occupies a portion of an existing structure or building, expansion shall be limited to 20 percent of the square footage occupied by the use on May 6, 2002, provided that the business must provide adequate parking for the existing and expanded business area. No such use shall be extended to land outside of the building or structure.

C.

Nonconforming telecommunications facilities. Certain telecommunications facilities that were in existence on or before September 8, 1997, shall be allowed to be expanded to provide for co-location of telecommunication antennas or other facilities in conformance with the provisions of subsection 35-41.B.26 and subsection 35-73.D of this ordinance.

D.

Application for expansion required. Application for expansion shall be submitted to the Director, in writing, together with a site plan showing the existing uses, detailing the type and amount of the proposed expansion.

E.

Notification of expansion and protest. Upon receipt of the application, mailed notification of the proposed expansion shall be provided to all owners of property within 185 feet (excluding streets and public rights-of-way) of the nonconformity. If protests are received from 30 percent or more of the property owners within the 185 feet limit within 20 days of the mailing, the requested expansion shall require processing in accordance with special exception use procedures.

An off-street parking lot which contains more than 20 spaces and which lawfully existed prior to November 21, 1972, but which does not conform to the minimum off-street parking requirements, paving or landscape planting requirements of this article is nonconforming. The structures served by the lot shall not be enlarged nor structurally altered nor shall any new structure be located on the premises until: (1) the minimum number of off-street parking spaces is provided; or (2) the off-street parking lot is paved in conformance with section 35-58; or (3) the nonconforming lot conforms to the landscape requirements in section 35-59, as applicable. If the property owner can prove that the minimum number of required off-street parking spaces cannot be provided due to lack of sufficient land or that the minimum landscape requirements would cause an unusual economic hardship, the requirements may be varied by the Board of Adjustment. A variance, if granted, shall be limited to the minimum variance necessary to resolve, in whole or in part, the particular problem of the applicant.

All structures and locations listed on the National Register of Historic Places, or as a state historical site shall not be considered to be nonconforming for the purposes of article VI, but shall comply with these regulations to the extent possible.