Within the zoning districts established by this Code, there are existing land uses, structures, sizes of lots, setback dimensions of structures or site design features which were lawful before this Code was adopted, but which are prohibited, regulated or restricted under the terms of this Code or future amendments. These are considered nonconformities and this Article explains and establishes the regulation of nonconformities.

Many people refer to this article as the "Grandfather Clause." If a use, structure, etc. was established legally under the previous code, it is "grandfathered in" (legal nonconforming). This article defines what can be done with a property that has a "grandfathered" feature and when the "grandfather" status is forfeited. These regulations are intended to curtail substantial investment in nonconformities and to bring about the eventual improvement or elimination of nonconformities in order to implement the goals, objectives and policies of the city's comprehensive plan. Ultimately, these regulations are intended to protect the health, safety and welfare of the general public.

(Ord. No. 2354, § I, 1-22-07)

A.

Limit the number and extent of nonconformities which conflict with the intent of this Code by restricting enlargement, re-establishment after abandonment, alteration or restoration after destruction.

B.

Eliminate nonconforming uses eventually or provide for their alteration to conform to the provisions of this Code.

C.

Permit improvements and minor additions to nonconforming structures or structures containing nonconforming uses to be considered in order to prevent these structures from becoming blighted and having detrimental impacts on the surrounding neighborhood, provided that such improvements or additions:

1.

Do not adversely impact surrounding property,

2.

Do not increase in the degree of nonconformity with respect to the development standards for the zone in which the property is located, and

3.

Do not substantially increase the life of the nonconforming structure above the normal anticipated life span for the structure.

D.

Allow for the reconstruction of existing residential structures that are involuntarily destroyed, e.g., fire.

E.

Secure the public health, safety and welfare by eliminating nonconformities that do not substantially promote these concerns.

(Ord. No. 2354, § I, 1-22-07)

A.

Nonconforming—Generally: The adoption of this Code and subsequent rezoning of all property within the city to conform to this Code may create nonconforming land uses, structures, lots, parcels or tracts of land and site design features. If at the time of rezoning of any lot, parcel, or tract or a subsequent amendment to this Code, any land use, structure, lot, parcel or tract of land or site design feature which was lawful when initially established or constructed and continued to be lawful, but does not comply with the provisions of this or any other applicable code, shall be considered nonconforming and may continue in the manner and to the extent that it existed or was being used at the time rezoning or amendment of this Code. This article describes when nonconformities must come into compliance with this Code.

B.

Nonconforming—Specifically:

1.

A nonconforming use occurs when a use is not allowed, not allowed with conditions, or not allowed with a special use permit in the zoning district in which the property is located.

2.

A nonconforming structure is a structure that does not meet setback, height, or other development standards of the zoning district in which the structure is located. Nonconforming structures include, but are not limited to, walls, fences and mobile homes.

3.

A nonconforming lot, parcel or tract of land is a piece of property that does not meet the minimum area, width or depth requirement of the zoning district in which it is located.

4.

A nonconforming site design feature, e.g., parking lots, landscaping, drainage, curb cuts, lighting and similar features, is a feature that does not meet the requirements of this and any other applicable code.

C.

Other definitions for the purpose of this article:

1.

Vacant land is defined as property that has not been occupied by a use, by structures or persons or for which no business registration, license, etc. has been obtained for the property. A property is also considered vacant if it previously had been occupied, but has not been occupied by a use, structures, persons or a business registration, license, etc., has not been issued for 12 months or more. This does not include buildings used for residential purposes vacated because of involuntary damage, e.g., fire.

2.

Change in land use is defined as an increase or decrease in the intensity of the land use. Intensity is determined by the number of car parking stalls required for a particular use as found in section 38-33. A nonconforming use may be changed to a less restrictive conforming use, i.e., a use that is allowed in the zoning district and that requires fewer parking stalls. A nonconforming use may be changed to a more restrictive conforming use, i.e., a use that is allowed in the zoning district and that requires more parking stalls, only if the additional parking stalls are provided along with the necessary drainage and landscaping.

3.

Expansions are defined as additions to a use or additions of buildings to a property whether attached to an existing building or a new separate structure.

4.

Alteration/remodel is defined as a change in a structure that requires a building permit.

(Ord. No. 2354, § I, 1-22-07)

A.

Nonconforming zoning districts: Upon the effective date of this Code, 2001 Zoning Code, the 1981 Zoning Code, as amended, will be repealed.

B.

Continuation of legal nonconformities:

Nonconforming land uses (includes all uses, see sections 38-31, 38-32, and 38-33.),

Nonconforming structures (includes: primary buildings, accessory structures, walls, fences). Signs are addressed in the chapter 36 of the Municipal Code and antennas, towers, communication structures, and other vertical structures are addressed in section 38-59,

Nonconforming lots/parcels/tracts of land, and/or

Nonconforming site design features (includes: e.g., curb cuts, landscaping, drainage, lighting, parking lots, architecture).

Any of these nonconformities listed above may be continued subject to the following conditions:

1.

One single-family dwelling unit on one property or one duplex/two single-family dwelling units on one property, excluding mobile homes:

a.

Existing building(s) on a property, which has any nonconformities may be remodeled anytime, but only: expanded; or altered one time up to 50 percent of the total gross floor area of all buildings on the property within the expansion of existing building lines (see section 38-62A.1.c.). However, expansion, alteration, or remodeling within the zoning district's building setback lines is permitted more than one time and with no gross floor area percentage increase limitation. The setbacks for the single-family dwelling unit located in an R-2, R-3, R-4, office, commercial, or industrial zoning district shall be the same as in the R-1a zoning district. All new construction must conform to the requirements of chapter 30 of the Municipal Code.

b.

Any building involuntarily damaged or destroyed may be rebuilt to what it was before it was damaged or destroyed. The building may not be rebuilt to create a nonconformity that did not previously exist. Reconstruction must begin within six months of the damage and the reconstruction must be diligently completed but in no case shall the reconstruction exceed two years. All new construction must conform to the requirements of chapter 30 of the Municipal Code.

c.

Walls and/or fences may be reconstructed or added to a property with any nonconformities. All new construction must conform to the requirements of chapters 30 and 32 of the Municipal Code.

d.

If the conditions listed in paragraphs 1a through 1c above cannot be complied with, all nonconformities, i.e. land uses, structures, lots/parcels/tracts of land, or site design features, shall be brought into compliance with all provisions of the Municipal Code to the extent possible through, e.g., rezoning, a variance and/or an administrative adjustment. The nature of nonconforming situations is unique to a specific property; therefore, each nonconforming situation will be reviewed on a case-by-case basis utilizing every option, e.g., section 38-56, flexible development standards, available within the Municipal Code to achieve compliance.

2.

One or more mobile homes or recreational vehicles on one property, excluding mobile home parks and recreational vehicle parks:

a.

A mobile home used as a residence may be expanded, altered, or remodeled one time up to 50 percent of the total gross floor area of all buildings on the property within the expansion of existing building lines (see section 38-62A.1.c.). However, expansion, alteration, or remodeling within the zoning district's building setback lines is permitted more than one time and with no gross floor area percentage increase limitation. The setbacks for the mobile home used as a residence located in an R-2, R-3, R-4, office, commercial, or industrial zoning district shall be the same as in the R-1aM zoning district. All new construction must conform to the requirements of chapter 30 of the Municipal Code.

b.

A mobile home or recreational vehicle (RV) used as a residence on one property may be replaced if the mobile home or RV is being replaced by a manufactured house, site-built house, or safer mobile home. If the replacement residence is a mobile home, for safety reasons, the replacement mobile home shall have accessible bedroom windows, the appropriate number of properly located and working smoke detectors, and an effective residential fire extinguisher. Furthermore, the replacement dwelling unit shall not be located on the property to create a nonconformity that did not previously exist.

c.

Walls and/or fences may be reconstructed or added to a property with any nonconformities. All new construction must conform to the requirements of chapters 30 and 32 of the Municipal Code.

d.

If the conditions listed in paragraphs 2.a. through 2.c. cannot be complied with, all nonconformities, i.e. land uses, structures, lots/parcels/tracts of land, or site design features, shall be brought into compliance with all provisions of the Municipal Code to the extent possible through, e.g., rezoning, a variance and/or an administrative adjustment. The nature of nonconforming situations is unique to a specific property; therefore, each nonconforming situation will be reviewed on a case-by-case basis utilizing every option, e.g., section 38-56, flexible development standards, available within the Municipal Code to achieve compliance.

3.

Nonconforming mobile home park:

a.

A mobile home used as a residence within a nonconforming mobile home park may be expanded, altered, or remodeled one time up to 50 percent of the total gross floor area of all buildings on the mobile home space within the expansion of existing building lines (see section 38-62A.1.c.). However, expansion, alteration, or remodeling within the mobile home space building setback lines is permitted more than one time and with no gross floor area percentage increase limitation. All new construction must conform to the requirements of chapter 30 of the Municipal Code. This paragraph applies to a mobile home park with an approved compliance plan, with an approved special use permit, or that is an approved planned unit development.

b.

A mobile home or recreational vehicle (RV) used as a residence in a nonconforming mobile home park may be replaced if the mobile home or RV is being replaced by a manufactured house, site-built house, or safer mobile home. If the replacement residence is a mobile home, for safety reasons, the replacement mobile home shall have accessible bedroom windows, the appropriate number of properly located and working smoke detectors, and an effective residential fire extinguisher. Furthermore, the replacement dwelling unit shall not be located on the property to create a nonconformity that did not previously exist. This paragraph applies to a mobile home park with an approved compliance plan, with an approved special use permit, or that is an approved planned unit development.

c.

1)

On the effective date of this Code all nonconforming mobile home parks shall be brought into compliance with all Municipal Code requirements to the extent possible. Compliance shall be based on an approved compliance plan, which addresses all applicable public health, fire, and life safety issues. An existing or new special use permit (SUP) or an existing or new planned unit development (PUD) for each mobile home park may satisfy the compliance plan requirement. A mobile home park with an accepted compliance plan, a SUP or an approved PUD designation shall be deemed legal, non-conforming.

2)

The compliance plan shall be prepared by the mobile home park owner in consultation with the community development department staff. If the compliance plan or PUD is denied, or if the compliance plan or PUD is not prepared, the nonconforming mobile home park shall cease operation on December 31, 2009. Within the one year compliance plan preparation period, up to ten percent of the mobile homes may be replaced if in compliance with paragraph 3.b.

3)

During compliance plan preparation and prior to the decision on the compliance plan, the public and potentially affected parties shall be given an opportunity to provide input. Public notice and participation shall follow a process approved by the community development department director or designee. Acknowledging that the nonconforming mobile home park will have unique improvement requirements, e.g., street paving, landscaping, to meet in order to comply with the Municipal Code, nevertheless, the compliance plan shall not permit the completion of the required improvements to extend past December 31, 2011. However, at the request of the mobile home park owner, a one-time, not to exceed one year, extension to complete improvements may be approved by the community development department director or designee. Prior to the decision on the time extension request, the public and potentially affected parties shall be given an opportunity to provide input. Public notice and participation shall follow a process approved by the community development department director or designee.

4)

Any affected party may appeal the compliance plan approval/denial decision or time extension decision of the community development department director or designee to the Planning and Zoning Commission.

d.

Walls and/or fences may be reconstructed or added to a property with any nonconformities. All new construction must conform to the requirements of chapters 30 and 32 of the Municipal Code.

e.

If the conditions listed in paragraphs 3.a. through 3.d. cannot be complied with, all nonconformities, i.e. land uses, structures, lots/parcels/tracts of land, or site design features, shall be brought into compliance with all provisions of the Municipal Code to the extent possible through, e.g., rezoning, a variance and/or an administrative adjustment. The nature of nonconforming situations is unique to a specific property; therefore, each nonconforming situation will be reviewed on a case-by-case basis utilizing every option, e.g., section 38-56, flexible development standards, available within the Municipal Code to achieve compliance.

4.

Three or more dwelling units on one property (not including mobile homes or mobile home parks) or nonresidential development:

a.

The property has not been vacant for 12 consecutive months.

b.

There is no change in land use (see section 38-72C.2.).

c.

Existing building(s) on the property may be remodeled anytime, but expanded, or altered, one time up to ten percent of the gross floor area of all buildings on the property. All new construction must conform to the requirements of chapter 30 of the Municipal Code.

d.

Land uses may be expanded one time up to ten percent of the area in use.

e.

The density of residential uses may change if the change in density will bring the density in compliance with this Code.

f.

The property may be re-platted if the re-platting will not result in an increase in the number of lots.

g.

When a nonconforming lot is used together with one or more contiguous lots for a single use or unified development, all of the lots so used, including any lots used for off-street parking, shall be considered a single lot for the purposes of this section, and the properties shall be re-platted before permits are issued.

h.

Any building partially destroyed involuntarily may be rebuilt to what it was before it was partially destroyed. A building permit shall be issued for the reconstruction of the damaged building based on plans approved by the community development department director or designee without having to correct any nonconforming matter, e.g., rezoning to comply with this Code. The building may not be rebuilt to create a nonconformity that did not previously exist. Reconstruction must begin within six months of the damage, unless extenuating circumstances prevail, e.g., legal issues, and the reconstruction must be diligently completed but in no case shall the reconstruction exceed two years. Buildings unoccupied during this time will not be used in the calculation to determine if land is vacant. All new construction must conform to the requirements of chapter 30 of the Municipal Code.

i.

Walls and/or fences may be reconstructed or added to a property with nonconformities. All new construction must conform to the requirements of chapters 30 and 32 of the Municipal Code.

j.

If the conditions listed in paragraphs 4.a. through 4.i. cannot be complied with, all nonconforming characteristics, i.e. land uses, structures, lots/parcels/tracts of land, or site design features, shall be brought into compliance with all provisions of the Municipal Code to the extent possible through, e.g., rezoning, a variance and/or an administrative adjustment. The nature of nonconforming situations is unique to a specific property; therefore, each nonconforming situation will be reviewed on a case-by-case basis utilizing every option, e.g., section 38-56, flexible development standards, available within the Municipal Code to achieve compliance.

(Ord. No. 2354, § I, 1-22-07)

A.

Purpose: The purpose of these certificates is to establish the legality of a nonconformity. All nonconformities shall have such a certificate before business registrations, building permits, subdivisions, mobile home installation permits, etc. are issued or permitted.

B.

To obtain a Certificate, the following information must be provided:

1.

Address, legal description and/or tax identification number

2.

Site plan, to scale, showing all structures on the property

3.

Proof that the nonconformity was legal when initially established and that the nonconformity was not discontinued or abandoned for more than 12 consecutive months. Examples of proof may include:

a.

Copies of building permits

b.

Copies of utility bills

c.

Dated photographs

d.

Tax assessor's information

4.

Although the city will assist in determining nonconforming status, the burden of proof is on the property/business owner to establish that a nonconformity was legal when established and continued legally, with no disruption of the nonconformity for more than 12 months, until the current date.

C.

Nonconforming land uses, structures, lots, parcels or tracts of land are not affected by changes in ownership, tenancy or management.

(Ord. No. 2354, § I, 1-22-07)

A.

Nonconforming open storage. Where undeveloped land within any zoning district has been used for open storage affecting public health, safety, welfare or nuisance in nonconformance with this Code, such use shall be discontinued, abated, or made to conform to the provisions of this Code within one year after its effective date.

B.

Nonconforming junk yards. Where land in any zoning district has been used for a junk yard, such use shall be abated or made to conform to the provisions of this Code within two years after the effective date of this Code.

C.

Nonconforming adult bookstores/video stores and adult amusement establishments. Where land in any zoning district has been in use as an adult bookstore/video store or adult amusement establishment prior to the effective date of this amendment, such use shall be abated or made to conform to the provision of this Code within one year after the effective date of this Code.

D.

Obstructions of the clear site triangle. Obstructions of a clear sight triangle shall be removed in compliance with the Municipal Code.

(Ord. No. 2354, § I, 1-22-07)

Special zoning districts (see article V) have different or additional nonconforming regulations. Refer to the section dealing with a specific zoning district to determine if other regulations apply.

(Ord. No. 2354, § I, 1-22-07)