(a)

Generally. This article applies to —

(1)

A lawful nonconformity that exists as of the effective date of this chapter, and

(2)

Any nonconformity created by an amendment to this chapter, such as a change to an area's zoning district classification.

(b)

Interpretation. Nonconformities are inconsistent with the objectives of this chapter, are viewed narrowly and have all doubts resolved against the continuation or expansion of the nonconformity in order to preserve the property rights of adjacent property owners.

(c)

Determination.

(1)

An applicant shall assert the existence of a nonconformity at the time an application under article 4 is filed, or at the administrator's request. The failure to assert a nonconformity at the time of application or within the time period for appealing a determination by the administrator as to the existence of a nonconformity waives the applicant's right to assert it at a later point in time, unless an additional nonconformity is created after that time.

(2)

The administrator shall determine the existence of the nonconforming use based on information provided by the applicant or property owner. The applicant or property owner has the burden of proving the existence of a nonconformity, and shall produce acceptable evidence attesting to the legal nonconforming status such as documents, rent receipts, affidavits, documentation of utility services, or other information deemed necessary in a particular case.

(d)

Unlawful uses. This Article does not authorize or legitimize uses, buildings, structures, parcels, or signs that were used, erected or maintained in violation of any previous zoning, subdivision or building regulation or otherwise not legally established or constructed. Those uses, buildings, structures, or signs are not "legally" nonconforming, but instead remain unlawful and subject to all requirements of this chapter (including enforcement provisions) and any other applicable law.

There are five types of nonconformities addressed by this article:

(a)

Applicability. This section applies to any nonconforming use. A "nonconforming use" means a lawfully established use that is not permitted in the zoning district. This applies where:

•  the use is no longer allowed in the district, or

•  the zoning district classification changes (either by applying a new classification to the area, or extending another zoning district to the area), and the new district does not allow the use.

(b)

Establishment and scope.

(1)

This section applies only to uses established without conditions.

(2)

The existence of a nonconforming use on part of a lot or tract does not establish a nonconforming use on the entire lot or tract.

(c)

Displacement. No nonconforming use shall be extended to displace a conforming use.

(d)

Change of use.

(1)

Once changed to a conforming use, no building or land shall revert to a nonconforming use. Once changed to a less intensive use, no building or land shall revert to a more intensive use. Notwithstanding the foregoing, in the "D" (Downtown) zoning district, any structure originally constructed and used as a "Dwelling, Single Family Detached" or "Dwelling, Two-Family (Duplex)" (as those terms are defined in this Chapter) and thereafter used as a non-residential use, may revert to its previous residential use notwithstanding the fact that such structure had been converted to a non-residential use.

(2)

If no structural alterations are made, a nonconforming use of a building may change to another nonconforming use of the same or less intensive classification.

(e)

Relocation.

(1)

For purposes of this subsection, "relocate" or "relocation" means to move a nonconforming use to occupy an area of land or a building that was not occupied on the effective date of this chapter or any amendment that created the nonconformity.

(2)

Nonconforming uses shall not relocate, except as provided in subsection (3) below.

(3)

BOZA may approve the relocation of a nonconforming use, subject to the following:

a.

The relocation shall either —

1.

Reduce the extent or intensity of the nonconformity, or

2.

Extinguish another nonconforming use of at least the same extent or intensity.

b.

The relocation shall not occupy any open space or landscaped area that is required by this chapter;

c.

The relocation shall comply with the dimensional regulations, including setback and height regulations, of the zoning district in which the nonconforming use is located;

d.

The relocation shall not occupy any land beyond the boundaries of the property or lot upon which the nonconformity existed as of the effective date of this chapter; and

e.

The relocation shall not displace any existing conforming use in the same building or on the same parcel.

(f)

Extension or expansion.

(1)

Applicability. This subsection applies to any extension or expansion of a nonconforming use, defined as follows:

(2)

Where allowed. BOZA may approve an extension or expansion of a nonconforming use if the extension or expansion does not involve or create a nonconforming structure or nonconforming site improvement, or it is required by a federal, state, or local law or a final court order.

(3)

Dwelling, single family detached. The Administrator may approve an extension or expansion of a nonconforming "Dwelling, Single Family Detached" use (section 89-21(d)) for which a building permit was issued prior to the effective date of this chapter, provided that the extension or expansion does not encroach upon the minimum setbacks as required in a RS-1 zoning district or otherwise create any site improvements that would be nonconforming in a RS-1 zoning district.

(g)

Resuming use of vacant buildings or parcels.

(1)

Applicability.

a.

This subsection applies to any nonconforming use that becomes vacant. For purposes of this subsection, "vacant" means that a building or land is not occupied or used in whole or in part, by a bona fide use or business.

b.

The intent to use a building or parcel for any nonconforming use is not considered in interpreting and construing the word "vacant" as used in subsection "a." above.

c.

The owner of the building or land claiming retention of the nonconforming use has the burden of proof to establish the existence and retention of a nonconforming use by clear and convincing evidence.

(2)

Generally. A building or parcel on which a nonconforming use is located may only be used if it complies with all applicable requirements of the zoning district and this chapter after it remains vacant for a continuous period of 12 calendar months; provided, however that a building or parcel located in the "D" Zoning District on which a bar/lounge use is located, and for which no conditional use permit has been issued, may only be used if it complies with all applicable requirements of the "D" zoning district and this chapter after it remains vacant for a continuous period of six calendar months.

(3)

Leases:

a.

Generally. If the lessee of any building or place where a nonconforming use is established under a bona fide lease ceases to occupy or use the building for nonconforming purposes before the lease expires, the building or land is not considered vacant until the owner of the buildings or land regains legal control of its occupancy and use. This exemption does not apply if the lessor, for any reason, is entitled legally to regain possession and does not attempt to do so by legal means.

b.

Proof of lease. To prove the existence of a lease, the owner must provide the administrator a copy of the lease before a certificate of occupancy is approved for the subject site. If an unwritten lease exists, the applicant must file a notarized affidavit on a form provided by the administrator with the administrator before a certificate of occupancy is approved for the subject site.

(4)

Bankruptcy. If a building or place used for nonconforming purposes is part of an order of bankruptcy, it is not considered vacant until it is sold or its possession is returned to the owner by order of court or otherwise in the bankruptcy proceedings.

(5)

Foreclosure. Any building or land used for nonconforming commercial or industrial purposes that is subject to a recorded mortgage is not considered vacant after foreclosure proceedings are instituted until the mortgagee or purchaser, at a foreclosure sale, takes possession and ownership is established by court procedure or until the mortgagee gains possession of the property by a recorded legal transfer.

(Ord. No. JO-021-2022, § 6(Exh. F), 3-22-22)

(a)

Applicability. This section applies to any nonconforming lot. A "nonconforming lot" means a lawfully platted or established lot that is below the required minimum lot size for the zoning district.

(b)

Generally. A legal nonconforming lot may be built upon if:

(1)

The lot is a lot of record; and

(2)

The use is permitted in the district in which the lot is located; and

(3)

The lot meets the minimum frontage requirements of the zoning district. If the frontage requirements cannot be met, the lot shall comply with the access requirements of article 3; and

(4)

All yards or height standards are complied with, except that the administrator may approve a reduction of required yards of up to ten percent if it does not allow a building that is larger than a building permitted on a conforming lot in the district.

(c)

Residential zoning districts. A nonconforming lot that is a lot of record in a residential district may be used only for a single-family dwelling or public utilities.

(d)

All other districts. A nonconforming lot that is a lot of record in any other district may be used for any use allowed in the district, subject to all other applicable requirements of articles 2 (Zoning) and 3 (Development Standards).

(e)

Replatting and boundary line adjustments. In the case of lots platted prior to the effective date of this chapter, and which met all applicable minimum lot size requirements under the rules in effect at the time of platting, the administrator may permit boundary line adjustments to or the replatting of such lots, notwithstanding that after such boundary line adjustments or replatting the size of one or more such lots will not meet the minimum lot size for the district; provided, however, that the administrator may permit such a boundary line adjustment or replatting only if:

(1)

It does not increase the nonconformity as to any particular lot;

(2)

Compliance with minimum lot size requirements is not reasonably possible (mere financial hardship does not constitute grounds for finding that compliance with minimum lot size requirements is not reasonably possible);

(3)

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

(4)

The nonconformity as to minimum lot size or minimum lot frontage is the only nonconformity with respect to any particular lot.

(f)

Narrow lot standards.

(1)

Wherever there exist three or more contiguous, vacant, nonconforming lots within a residential zoning district, each having a street frontage of 30 feet or less, then, in such case, no dwelling shall be constructed on any such lot except in conformity with the foregoing:

a.

The garage shall not project more than eight feet beyond the front wall of the dwelling.

b.

The driveway shall not be wider than 12 feet.

c.

The garage opening shall not be wider than 12 feet.

d.

Thirty percent of the front setback area shall be planted with living trees, shrubs, vines, grasses, ground covers, or other plants.

e.

If the lot(s) front(s) on a public, open ditch road, the developer shall install a subsurface drainage system in accordance with standards determined by PW. Alternatively, in lieu of constructing a driveway upon the lot(s) and installing a subsurface drainage system thereupon, the developer may enter into a joint access agreement to utilize an existing driveway.

(2)

For the purposes of this subsection, a vacant lot is one that is not occupied, in whole or in part, by a bona fide use, and which has not been occupied, in whole or in part, by a bona fide use within five years of an application for a building permit relative to such lot.

(a)

Applicability. This section applies to any nonconforming structure. A "nonconforming structure" means a lawfully established structure that does not conform to the zoning district regulations that govern size, setbacks, building height, or other dimensional requirements.

(b)

Generally.

(1)

A nonconforming building or structure may not be reconstructed or structurally altered except as provided in this section.

(2)

Buildings or structures used for neither commercial nor industrial purposes and which are nonconforming only as to yard areas or density may be structurally altered and their building volume increased if the alteration or increase in building volume does not further encroach upon any required yard space or any required off-street parking area.

(c)

Maintenance, repairs and alterations. Routine maintenance of nonconforming structures is permitted, including necessary non-structural repairs, paint, and incidental alterations which do not extend or intensify the non-conformity.

(d)

Alteration, extension or expansion. A structural alteration, including an extension or expansion (as defined in section 89-98(f)(1)), of a nonconforming structure is allowed if it —

(1)

Does not increase the nonconformity, and

(2)

Does not involve or create a nonconforming use or nonconforming site improvement.

(e)

Unsafe structures. Any nonconforming structure declared unsafe by a proper authority shall be restored to a safe condition.

(f)

Variance. Nonconforming structures may be made conforming with a variance (see article 4).

(g)

Corner lots in subdivisions which have received preliminary or final subdivision plat approval prior to the effective date of this chapter may be developed in accordance with the minimum yard requirements applicable to the said corner lots prior to the effective date.

(a)

Applicability. A "nonconforming site improvement" means a lawfully established development that does not conform to the building design, infrastructure, landscaping, parking, site design, or other regulations of article 2, 3 or 5 that would otherwise apply. Examples of nonconforming site improvements include:

•  Landscaping (or lack of landscaping) that does not conform to the landscape area, location, or planting requirements.

•  Parking spaces, drive aisles, and loading areas that do not conform to the requirements of article 3 in terms of their number or dimensions.

(b)

Generally. On lots with nonconforming site improvements, no additions to, or repairs or alterations of any structure or site improvement are allowed unless:

(1)

The nonconforming site improvements are brought into complete conformity with the regulations applicable to the area or zoning district, or

(2)

The administrator approves the activity as provided in subsection (c) below.

(c)

Approved nonconforming site improvements. Administrator may approve additions, repairs or alterations to any structure or site improvement on a lot with a nonconforming site improvement if:

(1)

The nonconforming site improvement(s) will be the only nonconforming site improvements pertaining to the property.

(2)

Compliance with the site improvement requirements applicable to the zoning district in which the property is located is not reasonably possible. Mere financial hardship does not constitute grounds for finding that compliance with the site improvement requirements is not reasonably possible.

(3)

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

(4)

The owner has committed to other site design measures to reduce the negative impacts associated with the nonconformity.

(a)

Applications in progress.

(1)

This subsection applies to any application in Progress, defined as applications for zoning, building permit, or subdivision plat approval that were filed before this chapter, or an amendment to this Chapter that affects the application, became effective.

(2)

Application in progress. Any application shall be governed by the regulations in effect at the time the application was filed. Notwithstanding the forgoing, applications filed and pending prior to either the effective date of this chapter, or any amendments thereto, may be governed by the latest edition of this chapter upon election by the applicant.

(3)

Effect on existing building permits. Nothing in this LDC requires a change in plans, construction, or designated use of any building or structure for which a building permit was lawfully issued prior to the effective date of this chapter, or any amendment thereto, if construction was commenced and completed within the time period required by the building code. If the building code does not establish a time period for construction, construction must be commenced within 180 days and completed within two years after issuance of the building permit.

(4)

The development approval process usually requires a series of steps, and applications are subject to any conditions provided in an earlier step in the approval process as set out in article 4. An approved application normally does not create a legal nonconformity or vested rights. However, in consideration of existing, good faith investments in project approvals, LCG will continue to process existing applications as follows:

Table 89-102-1 Conditions on Existing Approvals

(b)

Buildings under construction. A building legally under construction that does not comply with this chapter becomes nonconforming when this chapter or an amendment becomes effective.

(a)

Applicability. This section applies to any nonconforming use or structure that is destroyed by vandalism, fire, storms, or other acts of God or the public enemy.

(b)

Continuation. The nonconforming use or structure may be restored if the restoration is accomplished with —

(1)

No increase in building volume, and

(2)

No increase in floor area over the building existing immediately prior to the damage.

(c)

Registration.

(1)

The property owner shall file with the administrator a registration indicating how the use or structure was destroyed and their intent to restore within one year of the destruction.

(2)

Restoration shall be completed within one year from the date of the registration.

(3)

The administrator may approve up to two extensions of one year each if the applicant files a request before the restoration period expires.

(a)

Any nonconforming structure or land expressly created or caused by a conveyance of privately owned land to a federal, state or local government to serve a public purpose is conforming for the purposes of this chapter, and is not subject to the limitations of this article.

(b)

The exemption in subsection (a) applies only to cases where private land is obtained by a governmental entity for a public purpose, through condemnation, threat of condemnation or otherwise, which creates a nonconformity in the remainder parcel in terms of setback, lot size, or other standards of this chapter.

(c)

The exemption in subsection (a) does not apply to right-of-way dedication or other public conveyances of land required by LCG in the course of subdivision or other routine development plan approvals.