Unless otherwise specifically provided in this chapter and subject to the restrictions and qualifications set forth in Sections 17-90 through 17-95, nonconforming situations that were otherwise lawful on the effective date of this chapter may be continued.

Notwithstanding the restrictions and qualifications set forth in Sections 17-90 through 17-95, the operation of a hot dog cart in accordance with an approved use by exception and a valid business license shall be permitted despite existing nonconforming situations on the property.

(Ord. No. 2013-530, § 4, 6-3-13)

(a)

When a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in Section 17-115, then the lot may be used as proposed, as if it were conforming. However, no use (e.g. duplex) that requires a greater lot size than the established minimum lot size for a particular zone is permissible on a nonconforming lot.

(b)

When the proposed use is one that is conforming in all respects but the applicable setback requirements cannot reasonably be complied with, then the L.P.A. may issue a variance to allow deviations from the applicable setback requirements if it finds that:

(1)

The property cannot reasonably be developed without such deviations. (Compliance is not reasonably possible if a building that serves the minimal needs of the use proposed for the nonconforming lot cannot be constructed and located on the lot in conformity with such setback requirements.) Mere financial hardship does not constitute grounds for finding that compliance is not reasonable.

(2)

The deviations are necessitated by the size or shape of the nonconforming lot.

(3)

The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health and safety.

(c)

This section applies only to undeveloped nonconforming lots (a lot with no substantial structures).

(d)

Subject to the following sentence, if, on the date this section becomes effective, an undeveloped nonconforming lot adjoins and has continuous frontage with one or more other undeveloped lot(s) under the same ownership, then neither the owner of the nonconforming lot nor his successors in interest may utilize the provisions of this section. This subsection shall not apply to a nonconforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 500 feet of such lot are also nonconforming. The intent of this subsection is to require nonconforming lots to be combined with other lots to create conforming lots, but not to require such combination when that would be out of character with the remainder of the neighborhood.

(a)

Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of nonconformity. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:

(1)

An increase in the total amount of space devoted to a nonconforming use, or

(2)

Greater nonconformity with respect to dimensional restrictions or other requirements.

(b)

Subject to subsection (d), a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate such use. However, subject to Section 17-95 (authorizing the completion of nonconforming projects in certain circumstances), a nonconforming use may not be extended to additional buildings or to land outside the original building.

(c)

Subject to Section 17-95 (authorizing the completion of nonconforming project in certain circumstances), a nonconforming use of open land may not be extended to cover more land than was occupied by the use when it became nonconforming, except that a use that involves the removal of natural materials from the lot (e.g., a sand pit) may be expanded to the boundaries of the lot where the use was established at the time it became nonconforming if ten percent or more of the earth products had already been removed on the effective date of this chapter.

(d)

The volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the equipment or processes used at a location where a nonconforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other paragraphs of this section occur.

(e)

Notwithstanding subsection (a), any structure used for single-family residential purposes and maintained as a nonconforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to such requirements as setback and parking requirements. This paragraph is subject to the limitations stated in Section 17-94 (abandonment and discontinuance of nonconforming situations).

(a)

Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged. Major renovation, i.e., work estimated to cost more than 15 percent of the appraised valuation of the structure to be renovated may be done only in accordance with a permit issued pursuant to this section.

(b)

If a structure located on a lot where a nonconforming situation exists is damaged to an extent that the costs of repair or replacement would exceed 25 percent of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a permit issued pursuant to this section. This subsection does not apply to structures used for single-family residential purposes, which structures may be enlarged or replaced as provided in Section 17-91 (e).

(c)

For purposes of subsections (a) and (b):

(1)

The "cost" of renovation, repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair or replacement.

(2)

The "cost" of renovation, repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of sub sections (a) or (b) by doing such work incrementally.

(3)

The "appraised valuation" shall mean either the appraised valuation for property tax purposes, updated as necessary by the increase in the consumer price index since the date of the last valuation, or the valuation determined by a professionally recognized property appraiser.

(d)

The administrator shall issue a permit authorized by this section if he finds that, in completing the renovation, repair or replacement work:

(1)

No violation of Section 17-91 will occur, and

(2)

The permittee will comply to the extent reasonably possible with all provisions of this chapter applicable to the existing use (except that the permittee shall not lose his right to continue a nonconforming use).

(e)

Compliance with a requirement of this chapter is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible.

(a)

A change in use of property (where a nonconforming situation exists) that is sufficiently substantial to require a new regulatory permit in accordance with Section 17-38 may not be made except in accordance with subsections (b) through (d).

(b)

If the intended change in use is to a principal use that is permissible in the district where the property is located, and all of the other requirements of this chapter applicable to make that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this chapter is ,achieved, the property may not revert to its nonconforming status.

(c)

If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this chapter applicable to that use cannot reasonably be complied with, then the change is permissible if the permit-issuing authority for that particular use (the administrator or L.P.A.) issues a permit authorizing the change. This permit may be issued if the permit-issuing authority finds, in addition to any other findings that may be required by this chapter, that:

(1)

The intended change will not result in a violation of Section 17-91; and

(2)

All of the applicable requirements of this chapter that can reasonably be complied with will be complied with. Compliance with a requirement of this chapter is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements such as paved parking does not constitute grounds for finding that compliance is not reasonably possible. In no case may an applicant be given permission pursuant to this subsection to construct a building or add to an existing building if additional nonconformities would thereby be created.

(d)

If the intended change in use is to another principal use that is also nonconforming, then the change is permissible if the entity authorized by this chapter to issue a permit for that particular use (administrator or L.P.A.) issues a permit authorizing the change. The permit-issuing authority may issue the permit if it finds, in addition to other findings that may be required by this chapter, that:

(1)

The use requested is one that is permissible in some zoning district by right or with either a special exception or conditional-use permit, and

(2)

All of the conditions applicable to the permit authorized in subsection (c) of this section are satisfied, and

(3)

The proposed development will have less of an adverse impact on those most affected by it and will be more compatible with the surrounding neighborhood than the use in operation at the time the permit is applied for.

(a)

When a nonconforming use is:

(1)

Discontinued for a period of 180 consecutive days; or

(2)

Discontinued for any period of time without a present intention to reinstate the nonconforming use, the property involved may thereafter be used only for conforming purposes.

(b)

(1)

If the principal activity on property where a nonconforming situation other than a nonconforming use exists is:

a.

Discontinued or a period of 180 consecutive days; or

b.

Discontinued for any period of time without a present intention of resuming that activity, then that property may thereafter be used only in conformity with all of the regulations applicable to the preexisting use unless the entity with authority to issue a permit for the intended use issues a permit to allow the property to be used for this purpose without correcting the nonconforming situations.

(2)

This permit may be issued if the permit-issuing authority finds that eliminating a particular nonconformity is not reasonably possible (e.g., cannot be accomplished without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation). The permit shall specify which nonconformities need not be corrected.

(c)

For purposes of determining whether a right to continue a nonconforming: situation is lost pursuant to this section, all of the buildings, activities and operations maintained on a lot are generally to be considered as a whole. For example, failure to rent one apartment in a nonconforming apartment building for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as a whole is continuously maintained. But if a nonconforming use is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter.

(d)

When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180 day period for purposes of this section begins to run on the effective date of this chapter.

(a)

All nonconforming projects on which construction was begun at least 180 days before the effective date of this chapter as well as all nonconforming projects that are at least ten percent completed in terms of the total expected cost of the project on the effective date of this chapter may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

(b)

Except as provided in subsection (a), all work on any nonconforming project shall cease on the effective date of this chapter, and all permits previously issued for work on nonconforming projects may begin or may be continued only pursuant to a rezoning, special exception or conditional use permit issued in accordance with this section by the individual or board authorized by this chapter to issue permits for the type of development proposed. The permit-issuing authority shall issue such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his position in some substantial way in reasonable reliance on the land-use law as it existed before the effective date of this chapter and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed. In considering whether these findings may be made, the permit-issuing authority shall be guided by the following, as well as other relevant considerations:

(1)

All expenditures made to obtain or pursuant to a validly issued or unrevoked building, zoning, sign or special exception permit or other approval shall be considered as evidence of reasonable reliance on the land-use law that existed before this chapter became effective.

(2)

Except as provided in Subdivision (b)(1), no expenditure made more than 180 days before the effective date of this chapter may be considered as evidence of reasonable reliance on the land-use law that existed before this chapter became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

(3)

To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

(4)

To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

(5)

An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of:

a.

The total estimated cost of the proposed project; and

b.

The ordinary business practice of the developer.

(6)

A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him.

(7)

Even though a person had actual knowledge of a proposed change in the land-use law affecting a development site, the permit-issuing authority may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The permit-issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that:

a.

At the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately, be passed, or it was not clear that the proposed ordinance would prohibit the intended development; and

b.

The developer had legitimate business reasons for making expenditures.

(c)

When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under subsection (b). In addition to the matters and subject to the guidelines set forth in subsections (1) through (6) of subsection (b), the permit-issuing authority shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

(1)

Whether any plans prepared or approved regarding uncompleted phases constitute conceptual plans only or are rather construction drawings based upon detailed surveying, architectural or engineering work.

(2)

Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

(3)

Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or such a scale, in anticipation of connection to or interrelationship with approved but uncompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but uncompleted phases are constructed in conformity with existing regulations.

(d)

The permit-issuing authority shall not consider any application or the permit authorized by subsection (b) that is submitted more than 60 days after the effective date of this chapter. The permit-issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.

(e)

The permit-issuing authority shall establish expedited procedures for hearing applications for permits under this section.