The purposes of the Nonconforming Development regulations are:

A.

To allow for reasonable use of legally created lots of record that do not meet current minimum requirements for their respective zoning districts.

B.

To provide for reasonable use of legally constructed structures that do not meet current site development regulations for their respective zoning districts.

C.

To allow for the reasonable continuation of legally established uses that do not meet current use regulations for their respective zoning districts.

D.

To limit the continuation and provide for the gradual replacement of nonconforming uses.

Regulations for nonconforming uses are in addition to regulations for nonconforming structures. In the event of a conflict, the most restrictive regulation shall apply.

A.

Pre-Existing Lots of Record. Nonconforming lots of record existing at the time of the adoption of this chapter shall be exempt from the minimum lot area and lot width requirements of each zoning district. Such lots may be developed with any use allowed by the regulations for the district and must comply with all other site development regulations set forth by the Zoning Regulations.

B.

Exceptions:

1.

Previously platted corner lots of fifty (50) feet or less may reduce the street side yard setback to fifteen (15) feet.

C.

Reductions Due to Public Acquisition. If a portion of a legally existing lot in any district is acquired for public use, the remainder of this lot shall be considered a conforming lot.

(Ord. No. 6964, 6-10-2003)

These regulations apply to buildings and structures that were constructed legally under regulations in effect before the effective date of these Regulations.

A.

Continuation. A lawful nonconforming structure existing on the effective date of this section may be continued, repaired, maintained, or altered, subject to the provisions of this Section.

B.

Additions or Enlargements to Nonconforming Structures.

1.

A lawful nonconforming structure may be added to or enlarged if the addition satisfies one (1) or more of the following conditions:

(a)

The enlargement or addition, when considered independently of the existing building, complies with all applicable setback, height, off-street parking, and impervious coverages.

(b)

The nonconforming building and impervious surface coverages on the site are not increased and the building, after the addition, conforms to height and off-street parking regulations applicable to its zoning district.

(c)

The addition projects no further into a required side yard setback than the existing building; the length of the side wall of the addition is the smaller of twenty-five (25) feet or fifty percent (50%) of the length of the existing nonconforming side wall; and the enlarged building complies with building and impervious coverage, front and rear yard setbacks, and height regulations applicable to its zoning district.

2.

No permitted addition to a nonconforming structure may place a wall within ten (10) feet of a window of an adjacent pre-existing residential structure.

3.

Nonconforming buildings shall be limited to one (1) addition or enlargement pursuant to these regulations.

C.

Moving of Nonconforming Structures. A lawful nonconforming building or structure shall not be moved in whole or in part to another location on its lot unless every part of the structure conforms to all site development regulations applicable to its zoning district.

D.

Repair of Nonconforming Structures. A lawful nonconforming building damaged by fire, explosion, storm or other calamity, except flood damages, may be repaired and reconstructed provided there is no increase in the degree of nonconformity.

E.

Conversion of a Conforming Building. A conforming building shall not be changed in any way that will result in a nonconforming development.

F.

Applicability of Landscaping and Screening Regulations. A pre-existing structure, building, or development shall be exempt from Chapter 48, Landscaping and Screening Regulations. However, any expansion of such structure, building, or development or any adjacent new development onto property that is or becomes vacant on or after the effective date of these regulations shall be subject to Chapter 48.

A.

Continuation of Nonconforming Uses.

1.

Any nonconforming use lawfully existing on the effective date of these regulations may continue, subject to the limitations of this Chapter.

2.

Whenever the use of a premises becomes nonconforming through a subsequent change in the Unified Land Development Ordinance or zoning district boundaries, such use may be continued or changed to another nonconforming use of the same or lesser intensity if approved by the City Council at a public hearing following a public hearing by the Planning Commission including their recommendation to the City Council.

B.

Change of Nonconforming Uses. A nonconforming use may be changed to another nonconforming use of the same or lesser intensity, as measured by the Intensity Rating in the Use Matrix as shown in Table 14-1 of Chapter 14, provided an application for such change is first approved by the City Council after public hearing and recommendation of the Planning Commission.

C.

Enlargement of Nonconforming Uses. A building or structure housing a lawful nonconforming use may not be added to or enlarged.

D.

Abandonment of Nonconforming Use.

1.

If any structure or property used as a lawful nonconforming use becomes vacant or unused for a continuous period of twelve (12) months, any subsequent use must conform to all use regulations applicable to the property's zoning district.

2.

If a structure housing a nonconforming use converts to a conforming use, it forfeits any further claim to nonconforming use rights.

E.

Allowance for Repairs. Repairs and maintenance of a structure occupied by a nonconforming use may be made, provided that no structural alterations are made other than those required by law.

F.

Damage or Destruction of Structures. Should a structure occupied by a lawful nonconforming use be damaged to the extent that the cost of restoration exceeds sixty percent (60%) of the replacement cost of the structure, the nonconforming use shall no longer be permitted.

G.

Nonconforming Uses and Conditional Use Permits. A lawful pre-existing use which would require a Conditional Use Permit in its zoning district shall be presumed to have the appropriate Permit and shall be considered a conforming use. The use shall be subject to the regulations governing lapses or revocation of Permits, set forth in Chapter 59.

A.

Application. These provisions apply to high-density residential uses, typically duplex or multi-family uses, which are present in structures that were originally constructed for single-family occupancy. For the purpose of this section of the ordinance a conversion shall be defined as a single-family dwelling where two (2) or more separate dwelling units have been created. These conversions are divided into two (2) categories. Category One consists of existing single-family conversions located in any R-1 zoning district. Category Two consists of existing single-family conversions in residential zoning districts R-2 and R-3 and all commercial and industrial zones. In both categories, these nonconforming uses are inconsistent with zoning or other development regulations in force when the uses were established and/or were established or constructed without benefit of a building permit or other required City review and approval. The regulations in this section provide a mechanism for establishing compliance for both categories of conversions.

1.

Category One. Existing R-1 conversions must provide proof that the conversion occurred prior to the adoption of Zoning Ordinance No. 1645 on the date of November 14 1961 to qualify as legal nonconforming uses. Any single-family structure converted to multiple living units after 1961 without benefit of required permits shall be deemed an unlawful nonconformance and shall be returned to single-family use and occupancy.

2.

Category Two. Existing conversions of single-family structures in zoning districts R-2 and R-3 and all commercial and industrial zones qualify to apply for the registration system described below in Sections 58-106.B through 58-106.K, establishing nonconforming rights for these uses.

B.

Registration System for Category Two Properties. The City of Kearney hereby establishes a Nonconforming Use Registration System for nonconforming residential uses located in zoning districts other than R-1. In order to establish existing owner's rights to validate and continue nonconforming uses in structures that were originally constructed as single-family dwellings, the owner of each such property shall register each premises located in R-2 or R-3 zoning districts prior to October 15, 2002 as determined by the City Council on a form available from the City of Kearney Building and Zoning Division. All work required to comply with parking requirements and minimum life safety standards (Sections 58-106.E and F) shall be completed and a Nonconforming Use Certificate issued within twenty-four (24) months of the next day following the last day of the six (6) month registration period. Once the property is properly registered with the City, the owner may begin the construction work immediately, or may choose to wait, as long as all required work is completed, inspected, and approved by the City before the deadline expires.

C.

Nonconforming Use Rights.

1.

Any Category Two property that is properly registered and meets the criteria required in this section shall receive full recognition as a lawful nonconforming use, subject to all the rights and restrictions provided by Section 58-105, and the owner of such property shall be issued a Nonconforming Use Certificate by the City of Kearney Building and Zoning Division.

2.

Any nonconforming residential use that is not registered and/or cannot meet the criteria required in this section may be deemed in violation of the City's Unified Land Development Ordinance. The City shall take any steps appropriate to terminate such unlawful uses.

D.

Conformance with Parking Requirements.

1.

Each registered and lawful nonconforming residential use shall comply with the Off-Street Parking Regulations in Chapter 49 within twenty-four (24) months of the adoption of this Ordinance. Required parking that takes access from an unimproved alley may be gravel, crushed rock, crushed concrete or similar aggregate surface. The area designated for gravel parking shall be contained within a physical boundary such as landscape timbers, bricks, railroad ties, split-rail fence, etc. and the aggregate shall be a minimum of four (4) inch depth. Figure 48-1 illustrates scenarios acceptable and unacceptable to meet the location requirements for off-street parking.

2.

At least fifty percent (50%) of the area of the street yard and forty percent (40%) of the area of the rear yard shall remain as landscaped area after the completion of any effort to comply with parking requirements. No tree may be removed to comply with these parking requirements unless authorized in writing by the City of Kearney Building and Zoning Division. If trees are removed with authorization from the City, mitigation shall be required at the following ratios:

(a)

For trees removed under six (6) inches in caliper, one (1) tree not less than two (2) inch caliper.

(b)

For trees removed six (6) inch caliper or greater, two (2) trees no smaller than two (2) inch caliper or one (1) tree no smaller than three (3) inch caliper.

(c)

In certain situations, where there is inadequate space for replacement with large canopy species, the City may authorize smaller ornamental species at a mitigation rate of twice that specified above. The ornamental trees shall not be less than 1.5 inch caliper.

Mitigation trees shall be planted on the same property at a location mutually agreed upon by the owner and the City.

E.

Minimum Life Safety Standards. Each registered and lawful nonconforming residential use shall provide and comply with the following minimum Life Safety Standards within twelve (12) months of the adoption of this ordinance.

1.

Smoke detectors shall be installed in each sleeping room and hallways leading to sleeping rooms and may be solely battery-operated, in accordance with Section R313 of the International Residential Code.

2.

Each below-grade sleeping room shall have at least one (1) window meeting the requirements of Section R310 of the International Residential Code. All above-grade sleeping rooms shall have at least one (1) operable window.

3.

All kitchens and bathrooms shall be provided with ground fault circuit interrupter (GFCI) protection, in accordance with the National Electrical Code.

4.

All stairways with four (4) or more risers shall have a handrail in accordance with Section R311 of the International Residential Code.

5.

All stairways with six (6) or more risers shall have a wall switch controlled lighting outlet in accordance with the National Electrical Code.

F.

Fees. A fee of $50.00 per premises shall be paid at the time of application.

G.

Inspection Required. Each premises shall be inspected by a City Inspector to verify that the Off-Street Parking Requirements and Minimum Life Safety Standards have been satisfied within the required time deadline before the nonconforming residential use shall be considered legal and become registered.

H.

Reinspection Fees. A reinspection fee of $50.00 may be charged for multiple inspections of the same premises.

I.

Contested Applications. Applications which are disputed or contested by citizens, property owners, or the City administration shall be decided by the Chief Building Official. Any applicant whose application is denied may appeal to the Board of Adjustment within thirty (30) days of the decision of the Chief Building Official.

J.

Nonconforming Use Certificate. The owner of property that has met these requirements shall be issued a Nonconforming Use Certificate by the City of Kearney Building and Zoning Division.

K.

Nonconforming Use and Development.

1.

The established registered nonconforming use rights are subject to the provisions of Section 58-105.

2.

High-density residential uses that comply with the permitted use regulations and density requirements of their respective zoning districts and meet all requirements in Section 58-106 are considered lawful conforming uses. These uses may be categorized as nonconforming structures based on their inconsistency with some development regulations and are subject to the provisions of Section 58-104.

Pre-existing structures that qualify as Category Two nonconforming residential uses on lots that do not meet the requirements of this Ordinance shall not be prohibited, based solely on the size of the lot, from seeking legal nonconforming uses status under the provisions of this section. These existing conversions must meet all other applicable requirements of this section to qualify.

(Ord. No. 7062, 5-11-2004; Ord. No. 7195, 8-23-2005)