The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Acquiring authority means the governmental entity proposing to acquire private property for a public transportation or other public purpose, pursuant to eminent domain action or by voluntary conveyance. Acquiring authorities include, but are not limited to, Monroe County, the City of Key West, and the Florida Department of Transportation ("FDOT").

Cure plan means a site plan submitted by an acquiring authority or a private property owner for a site subject to an eminent domain action or a voluntary conveyance for public transportation or other public purpose. The cure plan shall show proposed changes to structures or other features of the remainder parcel necessary to make the remainder parcel comply with the applicable land development regulations or, comply to the degree feasible.

Dwelling unit. See section 86-9.

Eminent domain action means one or a series of actions taken by an acquiring authority to obtain fee simple title to all or some part of privately held real property for a public use.

Eminent domain/public purpose waiver means authorization from the City of Key West for the continued use and enjoyment of a remainder parcel subsequent to an eminent domain action or a voluntary conveyance for public transportation or other public purpose. An eminent domain/public purpose waiver shall not be issued where the remainder parcel and the existing structures located thereon conform with the applicable zoning district land development regulations as of the date that title transferred to an acquiring authority under an eminent domain action or through a voluntary conveyance.

Noncomplying building or structure means any building or other structure, for which the use is lawful (permitted or nonconforming), but the building or other structure does not comply with all applicable sections of the land development regulations, including, but not limited to, size and dimension regulations, off-street parking requirements, landscape requirements, nuisance abatement standards, or height requirements, either on the effective date of the ordinance from which this section derives or as a result of any subsequent amendment.

Nonconforming density means the number of dwelling or living units per acre greater than the number allowed by the land development regulations, which were legally established or licensed prior to the effective date of the ordinance from which this section derives.

Nonconforming use means a use of a building or structure or a tract of land which does not, on the effective date of the ordinance from which this section derives or amendment thereto, conform to any one of the current permitted uses of the zoning district in which it is located, but which was legally established in accordance with the zoning in effect at the time of its inception or which use predates all zoning codes and which use has not changed or been abandoned. This definition shall not operate to make legal an unlicensed transient rental accommodation located in a residential structure.

Owner of a remainder parcel means the owner in fee simple title of a remainder parcel who is a successor in interest to a private property owner's interest in the remainder parcel; or, the owner in fee simple title of a remainder parcel whose title to the remainder parcel is derived from the private property owner or the private property owner's successors in title.

Parent tract means the parcel of land that existed prior to an acquiring authority's acquisition of some portion of the parcel through eminent domain action or voluntary conveyance for public transportation or other public purpose.

Private property owner means the owner in fee simple title of a parent tract.

Remainder parcel means that portion of the parent tract remaining in private ownership following an eminent domain action or a voluntary conveyance for public transportation or other public purpose.

Voluntary conveyance means the transfer of title to any portion of a parent tract by the private property owner to an acquiring authority for public transportation or other public purpose in lieu of an eminent domain action.

(Ord. No. 00-10, § 3, 6-6-2000; Ord. No. 12-18, § 1, 7-17-2012)

Cross reference— Definitions generally, § 1-2.

The intent of this article is to permit a nonconforming use and a noncomplying structure or building to be continued, to be reconstructed or replaced, or to be repaired or maintained under certain conditions, but not to encourage their expansion. Nonconforming densities may also be continued, reconstructed, replaced, repaired or maintained, although a distinction is made for reconstruction or replacement purposes between transient and permanent residential densities.

(Ord. No. 00-10, § 4, 6-6-2000)

(a)

Applicability. This section applies both to voluntary reconstruction or replacement of dwelling units and involuntary reconstruction or replacement of dwelling units. Nothing in this section is intended to supersede applicable Federal Emergency Management Agency requirements for elevation in flood zones.

(b)

Dwelling units (residential). Residential dwelling units may be replaced at their existing nonconforming density, location and three-dimensional building envelope. Dwelling units involuntarily destroyed do not require variances to be reconstructed or replaced. If a voluntary reconstruction or replacement occurs and if the dwelling units exist or existed in a noncomplying building or structure, the reconstruction or replacement that increases the nonconformity of the building or structure shall require a variance granted by the planning board. In a voluntary reconstruction of a structure on a corner lot, the property owner must apply to the planning board for all necessary setback variances. All noncomplying accessory structures to the principal building or structure (e.g., a shed, pool, fence, etc., but not including a condominium clubhouse) shall also require a variance in order to be enlarged, reconstructed or replaced, either voluntarily or involuntarily. If a proposed reconstruction or replacement would not otherwise require a variance but would add a new building or structure to the site to accommodate allowed density, a variance shall be required for the additional building or structure. A residential building in which one or more units hold a residential transient use business tax receipt shall be deemed residential for the purposes of this section. Variances which would increase density or intensity beyond that maximum allowed on the particular property or lot by the land development regulations shall be prohibited.

(c)

Dwelling units (transient). Transient dwelling units may be replaced at their existing nonconforming density so long as the reconstruction or replacement complies with all zoning district regulations, review procedures and performance criteria contained in the land development regulations. No variances shall be granted to accommodate such reconstruction or replacement; provided, however, that a variance may be granted to setbacks only if existing setback regulations would create undue hardship.

(d)

Properties without dwelling units. For a proposed reconstruction or replacement of a property without dwelling units, where that property is either a nonconforming use or a noncomplying building or structure, (i) if the property is involuntarily destroyed, reconstruction or replacement does not require a variance; and (ii) if voluntarily destroyed to the extent that reconstruction or replacement would exceed 50 percent of the property's appraised or assessed value, the applicant must apply to the planning board for a variance.

(e)

Mixed use properties. If a property contains both a dwelling unit and a commercial use, its reconstruction or replacement shall be governed, separately, under each applicable subsection set forth in this section.

(f)

Historic district. Notwithstanding any other subsection contained in this section, if a noncomplying building or structure is a contributing building or structure according to the historic architectural review commission (HARC) and it is involuntarily destroyed, such building or structure may be reconstructed or replaced without a variance so long as it is to be rebuilt in the three-dimensional footprint of the original building and built in the historic vernacular as approved by the historic architectural review commission.

(g)

Miscellaneous. With respect to subsections (a) through (f) of this section, the development review committee and the planning board, in evaluating petitions for variance, shall balance the need to protect life and property with the need to preserve the economic base of the community. Under no circumstances shall a voluntarily or involuntarily destroyed nonconforming use or noncomplying building or structure be replaced to a degree or level that increases or expands the prior existing nonconforming use or noncomplying building or structure.

(Ord. No. 00-10, § 5, 6-6-2000; Res. No. 06-292, § 1, 9-6-2006; Ord. No. 08-04, § 24, 5-20-2008; Ord. No. 13-18, § 3, 10-16-2013)

(a)

Generally. Any building or structure devoted in whole or in part to a nonconforming density or nonconforming use may be repaired and maintained as provided in this section. If repair or maintenance shall exceed the criteria set forth in this section, renovation of the building or structure shall be governed by section 122-28.

(b)

Residential or transient dwelling units. For residential or transient dwelling units, work may be done in any period of 12 consecutive months for repairs and maintenance to an extent not exceeding 66 percent of the current assessed or appraised value.

(c)

Property without dwelling units or mixed use (commercial). For property without dwelling units or mixed use (commercial), work may be done in any period for 12 consecutive months on ordinary repairs and maintenance to an extent not exceeding 50 percent of the current assessed or appraised value.

(Ord. No. 00-10, § 6, 6-6-2000)

If a nonconforming use ceases, except when government action impedes access to the premises, any and every future use of the building or structure and/or premises shall be in conformity with the use section of the applicable zoning district stated within the land development regulations. No new structure or addition that does not conform to the requirements of this article shall be erected in connection with such nonconforming use. A nonconforming use shall be considered abandoned given expiration of the local, state, or federal licenses relevant to the alleged abandoned use, and/or business operations having ceased as evidenced by one of the following: removal of utility meters; negligence to maintain the premises in a habitable condition as evidenced by a finding by a court, official, or magistrate of competent jurisdiction; failure to operate pursuant to the terms of an active building permit and in violation of the FL Building Code; or removal of equipment or inventory related to the nonconforming use for a period of 24 continuous months. If a dispute occurs with the city about whether a use has been abandoned, the owner shall be entitled to a hearing before the planning board.

(Ord. No. 00-10, § 7, 6-6-2000; Ord. No. 08-04, § 25, 5-20-2008; Ord. No. 23-23, § 2, 5-16-2023)

(a)

In any district in which single-family dwellings are allowed, a single-family dwelling and customary accessory buildings may be erected on any legal nonconforming single lot that is in existence on January 1, 1994, and that is in different ownership from the adjoining property. This subsection shall apply even though such lot fails to meet the requirements for area, depth or width, provided that all other zoning requirements shall apply.

(b)

If two or more adjoining lots or portions of lots in single ownership on January 1, 1994, do not meet the requirements for building site width, depth and area as established by this article, the land involved shall be considered to be an undivided parcel, and no portion of the parcel shall be used or sold that does not meet building site width, depth and area requirements, nor shall any division of the parcel be made that leaves remaining any lot with substandard width, depth, area, parking, open space or stormwater retention. Notwithstanding anything to the contrary in this subsection, two or more adjoining lots or building sites shall not be considered to be an undivided parcel, and may be sold or used for single-family dwellings, if allowed by applicable district regulations, so long as each lot or building site is at least 75 percent of the minimum lot size of the applicable district regulations and is not otherwise required to provide required parking for the adjacent parcel.

(Ord. No. 00-10, § 8, 6-6-2000)

(a)

A nonconforming use, nonconforming density or a noncomplying building or structure may be continued, subject to this article. Notwithstanding anything in the Code to the contrary, a structure or site improvement may be altered without the need for a variance if the alteration decreases respective noncompliance. This provision shall not function to permit the construction, reconstruction, or alteration of any structure that obstructs clear and free passage of emergency responders or that otherwise conflicts with fire safety Code.

(b)

A casual, intermittent, temporary or illegal use of land, building or structure shall not be sufficient to establish the existence of a nonconforming use, nonconforming density or noncomplying building or structure.

(c)

Should any noncomplying building or structure be moved for any reason from its location, it shall thereafter conform to the regulations or the zoning district of its new location.

(d)

A nonconforming use shall not be extended, expanded, enlarged, or increased in intensity. This prohibition shall include but not be limited to the extension of a nonconforming use within a building or structure or to any other building or structure.

(e)

A nonconforming use of a building or structure may be changed to another nonconforming use if the planning board finds that:

(1)

The new use is equally or more appropriate to the zoning district; and

(2)

The change of use would not intensify the use of the premises by increasing the need for parking facilities; increasing vehicular traffic to the neighborhood; increasing noise, dust, fumes or other environmental hazards; or by having an adverse impact on drainage.

(f)

This article shall apply to signs, consistent with chapter 114.

(g)

Enlargement and extensions: Nonconforming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or expanded provided that the existing nonconformity is not further increased, nor any new nonconformity created.

(Ord. No. 00-10, § 9, 6-6-2000; Ord. No. 08-04, § 26, 5-20-2008; Ord. No. 13-18, § 4, 10-16-2013; Ord. No. 22-25, § 2, 8-16-2022)

An eminent domain/public purpose waiver is intended to provide private property owners and owners of remainder parcels a viable and fair alternative to the adverse impact on their real property, as a result of an eminent domain action or voluntary conveyance to an acquiring authority. It allows the continued use of the remainder parcel in a manner similar to its pre-acquisition, pre-taking, or pre-conveyance condition. Waivers provided pursuant to this section 122-33 can be obtained for nonconforming lots and structures. Waivers cannot be granted for nonconforming uses.

(a)

Applicability.

(1)

Vacant parcels, whether conforming or nonconforming lots, shall be eligible for an eminent domain/public purpose waiver from land development regulations including, but not limited to, minimum lot size, setbacks, parking, open space, pervious versus impervious area, density, floor area ratios, landscaping and landscape buffers, and signage setbacks, pursuant to sections 122-33(c), (d), and (e).

(2)

Developed parcels. Where an eminent domain action or voluntary conveyance for public transportation or other public purpose reduces the lot size and creates a nonconforming remainder parcel but does not require the relocation of site features, said parcel shall be eligible for an eminent domain/public purpose waiver from land development regulations including, but not limited to, minimum lot size, setbacks, parking, open space, pervious versus impervious area, floor area ratios, density, landscaping and landscape buffers, and signage setbacks, pursuant to sections 122-33(c), (d) and (e).

(3)

Developed parcels. Where an eminent domain action or voluntary conveyance for public transportation or other public purpose requires the relocation of site features including, but not limited to, buildings, parking spaces, landscaping, stormwater facilities, dumpsters, light poles and signs, such a parcel shall be eligible for an eminent domain/public purpose waiver, pursuant to sections 122-33(c) and (e).

(b)

An acquiring authority, a private property owner, and an owner of a remainder parcel are each hereby granted the authority to apply for a waiver from the land development regulations on a remainder parcel that has resulted or will result from an eminent domain action or voluntary conveyance for public transportation or other public purpose. The application may be made prior to or after the acquiring authority has obtained title to some part of the parent tract. The city planner shall have authority to grant eminent domain/public purpose waivers pursuant to sections 122-33(c), (d) and (e).

(c)

Procedure for an acquiring authority or private property owner to apply for an eminent domain/public purpose waiver.

(1)

An acquiring authority or a private property owner may apply in writing to the city planner for a waiver pursuant to sections 122-33(c) and (e). The applicable fee, established by resolution, shall be submitted with the following documents:

a.

An as-built drawing of the parent tract and a legal description of the portion to be acquired by or transferred to the acquiring authority and the remainder parcel shall be submitted for those circumstances described in sections 122-33(a)(1), (2) and (3) above. The as-built drawing must show the parent tract and the remainder parcel with the proposed changes to the site including, but not limited to, buildings, parking, landscaping, stormwater facilities, topographic data and adjacent right-of-way; and

b.

A site plan (a cure plan as defined herein) showing the parent tract and the remainder parcel with the proposed changes to the site including, but not limited to, buildings, parking, landscaping, stormwater facilities, topographic data and adjacent right-of-way. Submittal of a cure plan shall not be necessary on a vacant parcel but shall be required for those parcels described in section 122-33(a)(3) above.

(2)

If an application for a waiver is submitted by an acquiring authority, the private property owner shall be notified via certified mail (return receipt requested) by the city planner within ten days of the application submittal date. Likewise if the private property owner applies for a waiver, the acquiring authority shall be notified via certified mail (return receipt requested) by the city planner within ten days of the application submittal date.

(3)

The city planner shall grant or deny a waiver pursuant to section 122-33(c) in accordance with the standards set forth in section 122-33(e) below. A certified letter (return receipt requested) shall be issued within 30 days to the acquiring authority and the private property owner following the decision. The private property owner shall not be required to accept the waiver or implement a cure plan, as approved by the city planner.

(d)

Procedure for an owner of a remainder parcel to apply for an eminent domain/public purpose waiver.

(1)

An owner of a remainder parcel may apply in writing to the city planner for a waiver pursuant to sections 122-33(d) and (e). The applicable fee, established by resolution, shall be submitted with the following documents:

a.

An as-built drawing depicting the remainder parcel and that portion of the parent tract previously acquired by or transferred to the acquiring authority following an eminent domain action or as a result of a voluntary conveyance shall be submitted for those circumstances described in section 122-33(a)(1) and (2) above; and

b.

A certified copy of the recorded document evidencing the acquiring authority's acquisition of a portion of the parent tract following an eminent domain action or a certified copy of the deed of conveyance wherein the private property owner conveyed a portion of the parent tract to the acquiring authority as a result of a voluntary conveyance for public transportation or other public purpose.

(2)

The city planner shall grant or deny a waiver pursuant to section 122-33(d) in accordance with the standards set forth in section 122-22(e) below. A certified letter (return receipt requested) shall be issued within 30 days to the owner of a remainder parcel following the decision.

(e)

Standards for issuance of eminent domain/public purpose waivers.

(1)

If an existing lot, parcel or structure becomes nonconforming (or an existing nonconformity becomes less conforming) as a result of a voluntary conveyance to an acquiring authority or an eminent domain action, a waiver may be granted by the city planner, provided a determination is made by the city planner that:

a.

The requested waiver will not adversely affect safety, aesthetic or environmental conditions of neighboring properties; and

b.

The requested waiver shall not adversely affect the safety of pedestrians or operations of motor vehicles; and

c.

The requested waiver will not encourage or promote the continuation of existing uses of the property which have been or will be rendered unfeasible or impractical due to the impacts of the taking, conveyance, and/or construction of the roadway or other facility including, but not limited to, aesthetic, visual noise, dust, vibration safety, land use compatibility, environmental or other impacts.

(Ord. No. 12-18, § 2, 7-17-2012)

(a)

Where a waiver is issued pursuant to section 122-33(c) and (d), the waiver shall become effective and the remainder parcel shall be considered compliant to the degree feasible after an acquiring authority takes title to any portion of real property subject to an eminent domain action or voluntary conveyance for public transportation or other public purpose.

(b)

Where a private property owner accepts a waiver on a remainder parcel that was also a vacant parcel or where no cure plan was necessary, the waiver shall remain valid and applicable to the remainder parcel indefinitely. However, future site plan and building permit approvals shall comply with all provisions in the land development regulations except those listed in the waiver.

(c)

Where a private property owner accepts a waiver based upon a cure plan, the physical changes to the remainder parcel, specified in the cure plan, shall occur within two years of the waiver and cure plan being approved. Future site plan and building permit approvals shall comply with all provisions in the land development regulations except those listed in the waiver.

(d)

Waivers issued pursuant to this section may be appealed in the manner provided for appeals of administrative interpretations of the city planner pursuant to section 90-430.

(e)

The city planner shall cause waivers issued pursuant to this section to be filed with the city clerk and recorded in the public records of Monroe County no later than 30 days from the effective date of the waiver.

(f)

The provisions of sections 122-33(c), (d), and (e) shall not be interpreted to allow for the continued existence of building or safety code violations that are determined to be an immediate threat to the public health, safety or welfare.

(g)

The appropriate city staff are hereby authorized to take any necessary steps to enforce all applicable building and safety codes though the subject property is part of a pending governmental acquisition.

(Ord. No. 12-18, § 3, 7-17-2012)