Lenexa City Zoning Code

ARTICLE 4

1-J NONCONFORMING SITUATIONS

Section 4-1-J-1 GENERAL POLICY, APPLICABILITY.

Policy: It is the general policy of the City to allow uses, structures or lots that came into existence legally and in conformance with then-applicable requirements but that do not conform to all of the applicable requirements of Chapter 4-1, Chapter 4-2 and Chapter 4-3 of this Title to continue to exist and be put to productive use but to bring as many aspects of such use into conformance with the current Chapter as is reasonably practicable, all subject to the limitations of this Article. The limitations of this Article are intended to recognize the interests of the property owner in continuing to use the property but to discourage the expansion of the nonconforming situation and to preclude the re-establishment of an abandoned use or lot or of a building or structure that has been substantially destroyed.

Applicability: This Article shall apply to circumstances that became nonconforming by initial adoption of these Chapters amendment to these Chapters or expansion of territory subject to the jurisdiction of the City. It shall also apply to nonconforming situations that were legal nonconformities under a similar provision of a previously-applicable ordinance or resolution and that remain nonconforming under these Chapters, even if the type or extent of nonconformity is different.

Continuation Permitted: Any nonconforming use, building, structure, sign or other situation which existed lawfully on the date of adoption of these Chapters or which becomes nonconforming upon the adoption of any amendment to these Chapters may be continued in accordance with the provisions of this Article. Where 2 or more provision of this Article apply, the more restrictive requirement controls.

Effective on: 1/1/1901

Section 4-1-J-2 NONCONFORMING USES OF LAND.

The lawful nonconforming use of land not involving a building or structure, or where any building or structure is merely incidental to or accessory to the principal use of land, may continue subject to the following requirements:

Expansion: A nonconforming use of land may not be expanded beyond the area that it occupied on the date that it became nonconforming.
Discontinuance: A nonconforming use of land may not be renewed when the use has been discontinued for 6 consecutive months. Any subsequent use of land shall conform to the applicable regulations of the zoning district in which the land is located.
Change of Use: A nonconforming use of land may not be changed to another use unless the use is permitted in the zoning district in which the land is located.

Effective on: 1/1/1901

Section 4-1-J-3 NONCONFORMING USE OF BUILDINGS OR STRUCTURES.

The lawful nonconforming use of a building or structure may continue subject to the following requirements:

Expansion: A nonconforming use may be expanded throughout a building or structure; provided, that a greater nonconformity in overall parking requirements does not occur, and further provided, that no structure changes are made except those required by law or permitted by the requirements of the zoning district in which the building or structure is located.
Discontinuance: A nonconforming use may not be renewed when the use has been discontinued for 6 consecutive months, and any subsequent use shall conform to the applicable regulations of the zoning district in which the use is located.
Change of Use: A nonconforming use of a building or structure may be changed to another nonconforming use of the same or more restrictive zoning district; provided, that a greater nonconformity in overall parking requirements does not occur. Where a more restrictive nonconforming use has been established, no less restrictive use may be re-established.

Effective on: 1/1/1901

Section 4-1-J-4 NONCONFORMING BUILDING OR STRUCTURE.

A lawful, existing nonconforming building or structure may remain subject to the following requirements:

Expansion: A nonconforming building or structure may not be expanded so as to increase the degree of nonconformity. Other expansions may occur; provided, that such additions comply with the requirements of these Chapters and applicable Building and Life Safety Codes.*
Remodeling Permitted: Remodeling of the structure within the existing building footprint is permitted without a variance; provided, that the remodeling does not increase the degree of nonconformity and that applicable Building and Life Safety Codes are met.*

*See Article 4-8-A and Article 4-8-J of this Title.*
Replacement and Repairs: A nonconforming building or structure may be replaced or restored within 6 months of damage or destruction of not more than 50 percent of its appraised valuation by fire, explosion or act of God or the public enemy; provided, that when such restoration becomes involved in litigation, the time required for such litigation shall not be counted as a part of the 6 months allowed for reconstruction, and nothing in this Chapter shall be taken to prevent the continued occupancy or use of such building or part thereof which existed at the time of such partial destruction, but any building so damaged more than 50 percent of its value may not be rebuilt, repaired or used unless it is made to conform to all regulations for buildings in the district in which it is located; provided, that such restoration as may be made is to the fullest extent possible in conformance with development standards.

Effective on: 1/1/1901

Section 4-1-J-5 NONCONFORMING LOTS.

A lawful, existing lot, shown on an approved and recorded subdivision plat on the date on which Chapter 4-1, Chapter 4-2 and Chapter 4-3 of this Title became applicable to the lot or a parcel shown on the assessor's records as a separate parcel prior to June 23, 1977, may be occupied and used, although it may not conform in every respect with the dimensional requirements of this Chapter, subject to the following requirements:

Merged Lots: A nonconforming lot or parcel may be merged with an adjacent lot or parcel to provide a fully conforming lot or parcel. If the merged lots or parcels, together, do not contain sufficient area for the actual or proposed use, they shall not be considered conforming.
Vacant Lots: The owner of a vacant nonconforming lot or parcel may make a reasonable use of the property as permitted by the applicable zoning district but shall, to the maximum extent practicable, comply with the dimensional requirements of this Chapter. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and 1 or more uses or intensities would comply with applicable yard and setback requirements while others would not, then only 1 of the uses or intensities that would conform with the applicable yard and setback requirements shall be permitted. The Planning Commission shall have reasonable authority to grant exceptions to dimensional requirements of this Chapter for a lot subject to this Section if the development on the lot is subject to plan review by the Planning Commission. Otherwise, the owner may seek a variance from such requirements from the Board of Zoning Appeals.
Lot with Building or Structure: If a nonconforming lot or parcel contains a building or structure on the date on which these Chapters become applicable to it, then the owner may continue the use of that building or structure and may reasonably expand it in any way that does not increase the degree of nonconformity; an increase in building size shall not be deemed to increase the degree of nonconformity unless it increases the encroachment on a required yard or setback or exceeds (or increases the exceeding of) any applicable limits on impervious cover. Remodeling of a structure within the existing building footprint or expansion in compliance with this subsection shall not require a variance but shall be reviewed by the Community Development Director and Building Official as though the lot were conforming.

Effective on: 1/1/1901

Section 4-1-J-6 NONCONFORMING SIGNS.

It is the intent of this Section that lawfully existing nonconforming signs be allowed to continue to be used for a limited time, but the City acknowledges that free-standing signs and facade signs, which are the most visible and present the greatest need for conformance, must be brought into compliance by a date certain. Regardless of the type of sign, nonconforming signs shall eventually be brought into compliance as described below:

Administrative Variance for Minor Nonconformities: It is hereby acknowledged that certain minor variations from Code requirements are considered within the intent of Article 4-1-E of this Chapter when balancing aesthetic impact against the cost of modification or replacement of an existing sign. An owner may apply for an administrative variance from the Code by filing the provided application, remitting the fee adopted by ordinance, resolution, or as otherwise permitted, and providing verification that the sign meets all requirements of Article 4-1-E of this Chapter except for nonconformities within the limits described as follows:
1. Free-Standing Signs: Sign area of up to 115 percent of that allowed by Code for that location. Sign height of up to 110 percent of that allowed by Code for that location. Setback of at least 50 percent of that allowed by Code for that location, meeting all traffic visibility criteria and within a minimum of 5 feet from the right-of-way line.
2. Facade Signs: Sign area of up to 110 percent of that allowed by Code at that location. Letter or logo height of up to 110 percent of that allowed by Code for that location.
Amortization of Nonconforming Signs: Nonconformities, that do not qualify for administrative variance under subsection A above, shall be brought into conformance with the provisions of Article 4-1-E of this Chapter as follows:
1. Free-Standing Signs: All free-standing signs that were nonconforming as to sign area, height, setback or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
2. Facade Signs: All facade signs that were nonconforming as to sign area, location or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
3. Signs Along Highway: The State Highway Advertising Control Act of 1972 and the Federal-Aid Highway Act of 1974 govern the amortization of certain signs located within the City. Therefore, this amortization provision shall not apply to any lawful nonconforming sign located within 660 feet of the nearest edge of any interstate or primary highway right-of-way. This distance shall be measured horizontally along a line perpendicular to, or at an angle of 90 degrees to the right-of-way line of the highway.
4. Exceptions: The Board of Zoning Appeals may grant, in a specific case, an exception to this amortization provision if it determines that compliance with the amortization provision would result in severe hardship to the applicant for the exception. In determining severe hardship, the Board shall consider and evaluate the following criteria, if applicable.
  1. The degree of nonconformity.
  2. The condition of the sign and its anticipated life before it will require removal or updating.
  3. The length of time the sign has been installed in its present location and its present condition.
  4. The economic hardship on the applicant as a result of the removal and/or replacement of the sign, including, but not limited to, actual removal and replacement costs and value to the business.
  5. The impact on adjacent property owners if the sign is permitted to remain.
  6. The uniqueness of the property, such as sight considerations, that will be impacted by sign compliance.
  7. Any other factors weighing on the hardship to the applicant.
    If after consideration of the above criteria the Board finds that it constitutes severe hardship for the applicant to comply with the amortization provision, the Board may grant a full exception, or it may grant a partial exception if it finds that partial compliance alleviates the severe hardship. The Board may also approve either a full or partial exception with conditions.
Real Estate, Construction and Miscellaneous Temporary Signs: Nonconforming real estate, construction and miscellaneous temporary signs shall be brought into compliance by January 1, 1995.
Correction of Other Nonconformities: Other nonconforming signs not covered by the above subsections A, B, and C shall be corrected as follows:
1. Issuance of New Sign Permits: No new sign permit shall be issued for a free-standing sign or facade identification sign on property upon which any nonconforming sign is located, until such nonconformity is corrected. On multi-tenant sites, this subsection D1 shall only apply to the tenant's signage.
2. Issuance of Building Permits: All nonconforming signs shall be brought into conformance as a condition of the issuance of any building permit for new construction, additions or exterior remodeling of a value in excess of 25 percent of the value of all improvements on the property on which a nonconforming sign exists.
Alterations and Refacing: A nonconforming sign may not be changed, refaced, replaced, enlarged or reduced, or its frame, pole or supports reshaped without bringing the sign into complete conformity with the provisions of Article 4-1-E of this Chapter.
Maintenance and Repair: A nonconforming sign may be maintained and repaired as required by Article 4-1-E of this Chapter, however, a sign that is damaged by vehicle damage, wind, fire, explosion or act of God beyond 50 percent of its replacement cost may not be repaired except in complete conformity with the provisions of said Article 4-1-E.

Effective on: 1/1/1901

Section 4-1-J-7 OTHER NONCONFORMITIES.

Policy: Because other nonconformities involve less investment and are more easily corrected than those involving lots, buildings and uses, it is generally the policy of the City to eliminate such other nonconformities as quickly as practicable.

Conditions Not Afforded Legal Nonconforming Status: Certain lawful nonconforming conditions or characteristics of use are not afforded the right to be continued. These include, but are not limited to, screening, surfacing and other improvements to parking, loading and vehicular maneuvering area and conformance with performance standards. The following requirements for certain nonconforming conditions or characteristics of use and remedies are established:

Nonconforming Site Conditions: Certain conditions may exist in some multi-family, commercial or industrial locations within the City that do not conform to 1 or more standards or requirements of these Chapters but which may be remedied without unreasonable cost or effort and which would promote the general welfare of neighboring property and the City at large. Such conditions include lack of screening, inadequate surface or curbing of parking areas or drives, discharge of surface water, noncompliance with 1 or more performance standards or other similar conditions. It is the intent of this Section to require reasonable remedy of such nonconforming conditions, generally concurrent with significant new construction and other improvements or where serious adverse impacts are experienced by neighboring properties or the general public.
1. Significant New Construction: The Community Development Director may require that such site improvements be brought fully or more closely into conformity with these Chapters for a property as part of new construction, alteration or expansion, where the cost of the construction or other work exceeds 10 percent of the value of the existing improvements on the property.
2. Nonconforming Landscaping on Renovation/Expansion Sites:
  1. Any expansion or exterior renovation of a value exceeding 50 percent of the existing improvements should bring the site up to current standards to the greatest extent physically possible. The value of interior renovation in conjunction with exterior and expansion projects is not calculated in this requirement.
  2. Any new expansion, regardless of value, shall provide landscaping in its immediate area to meet current Code, including adjacent perimeter plantings, land use buffers, and screening of equipment. When relatively small areas are affected, the required landscaping may be spread out on the site to avoid glaring differences between the new and existing improvements.
  3. Additional landscaping should be added in proportion to the overall project cost to bring the site more into conformance. The proportion of this additional program should be generally based on the proportion of landscape to overall project cost on similar types of new projects in the City. The priorities for the use of this additional landscaping should be first to address external impacts of the site such as land use buffers and screening of site features, and second to blend in and supplement the plantings required by subsection B-1-b-2 above.
3. Serious Adverse Impacts: If the Community Development Director finds that the nonconformity is creating serious adverse impacts on neighboring properties or on the general public, then the Community Development Director may determine the existence of the nonconformity, the harm therefrom and the appropriate remedy.

Effective on: 1/1/1901

Section 4-1-J-8 VARIANCES PERMITTED.

Except as otherwise provided herein, the Board of Zoning Appeals may grant variances consistent with the intent of this Article, in accordance with the provisions of Article 4-1-K of this Chapter.

Effective on: 1/1/1901

Lenexa City Zoning Code

ARTICLE 4

1-J NONCONFORMING SITUATIONS

Section 4-1-J-1 GENERAL POLICY, APPLICABILITY.

Effective on: 1/1/1901

Section 4-1-J-2 NONCONFORMING USES OF LAND.

Expansion: A nonconforming use of land may not be expanded beyond the area that it occupied on the date that it became nonconforming.
Discontinuance: A nonconforming use of land may not be renewed when the use has been discontinued for 6 consecutive months. Any subsequent use of land shall conform to the applicable regulations of the zoning district in which the land is located.
Change of Use: A nonconforming use of land may not be changed to another use unless the use is permitted in the zoning district in which the land is located.

Effective on: 1/1/1901

Section 4-1-J-3 NONCONFORMING USE OF BUILDINGS OR STRUCTURES.

The lawful nonconforming use of a building or structure may continue subject to the following requirements:

Expansion: A nonconforming use may be expanded throughout a building or structure; provided, that a greater nonconformity in overall parking requirements does not occur, and further provided, that no structure changes are made except those required by law or permitted by the requirements of the zoning district in which the building or structure is located.
Discontinuance: A nonconforming use may not be renewed when the use has been discontinued for 6 consecutive months, and any subsequent use shall conform to the applicable regulations of the zoning district in which the use is located.
Change of Use: A nonconforming use of a building or structure may be changed to another nonconforming use of the same or more restrictive zoning district; provided, that a greater nonconformity in overall parking requirements does not occur. Where a more restrictive nonconforming use has been established, no less restrictive use may be re-established.

Effective on: 1/1/1901

Section 4-1-J-4 NONCONFORMING BUILDING OR STRUCTURE.

A lawful, existing nonconforming building or structure may remain subject to the following requirements:

Expansion: A nonconforming building or structure may not be expanded so as to increase the degree of nonconformity. Other expansions may occur; provided, that such additions comply with the requirements of these Chapters and applicable Building and Life Safety Codes.*
Remodeling Permitted: Remodeling of the structure within the existing building footprint is permitted without a variance; provided, that the remodeling does not increase the degree of nonconformity and that applicable Building and Life Safety Codes are met.*

*See Article 4-8-A and Article 4-8-J of this Title.*
Replacement and Repairs: A nonconforming building or structure may be replaced or restored within 6 months of damage or destruction of not more than 50 percent of its appraised valuation by fire, explosion or act of God or the public enemy; provided, that when such restoration becomes involved in litigation, the time required for such litigation shall not be counted as a part of the 6 months allowed for reconstruction, and nothing in this Chapter shall be taken to prevent the continued occupancy or use of such building or part thereof which existed at the time of such partial destruction, but any building so damaged more than 50 percent of its value may not be rebuilt, repaired or used unless it is made to conform to all regulations for buildings in the district in which it is located; provided, that such restoration as may be made is to the fullest extent possible in conformance with development standards.

Effective on: 1/1/1901

Section 4-1-J-5 NONCONFORMING LOTS.

Merged Lots: A nonconforming lot or parcel may be merged with an adjacent lot or parcel to provide a fully conforming lot or parcel. If the merged lots or parcels, together, do not contain sufficient area for the actual or proposed use, they shall not be considered conforming.
Vacant Lots: The owner of a vacant nonconforming lot or parcel may make a reasonable use of the property as permitted by the applicable zoning district but shall, to the maximum extent practicable, comply with the dimensional requirements of this Chapter. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and 1 or more uses or intensities would comply with applicable yard and setback requirements while others would not, then only 1 of the uses or intensities that would conform with the applicable yard and setback requirements shall be permitted. The Planning Commission shall have reasonable authority to grant exceptions to dimensional requirements of this Chapter for a lot subject to this Section if the development on the lot is subject to plan review by the Planning Commission. Otherwise, the owner may seek a variance from such requirements from the Board of Zoning Appeals.
Lot with Building or Structure: If a nonconforming lot or parcel contains a building or structure on the date on which these Chapters become applicable to it, then the owner may continue the use of that building or structure and may reasonably expand it in any way that does not increase the degree of nonconformity; an increase in building size shall not be deemed to increase the degree of nonconformity unless it increases the encroachment on a required yard or setback or exceeds (or increases the exceeding of) any applicable limits on impervious cover. Remodeling of a structure within the existing building footprint or expansion in compliance with this subsection shall not require a variance but shall be reviewed by the Community Development Director and Building Official as though the lot were conforming.

Effective on: 1/1/1901

Section 4-1-J-6 NONCONFORMING SIGNS.

Administrative Variance for Minor Nonconformities: It is hereby acknowledged that certain minor variations from Code requirements are considered within the intent of Article 4-1-E of this Chapter when balancing aesthetic impact against the cost of modification or replacement of an existing sign. An owner may apply for an administrative variance from the Code by filing the provided application, remitting the fee adopted by ordinance, resolution, or as otherwise permitted, and providing verification that the sign meets all requirements of Article 4-1-E of this Chapter except for nonconformities within the limits described as follows:
1. Free-Standing Signs: Sign area of up to 115 percent of that allowed by Code for that location. Sign height of up to 110 percent of that allowed by Code for that location. Setback of at least 50 percent of that allowed by Code for that location, meeting all traffic visibility criteria and within a minimum of 5 feet from the right-of-way line.
2. Facade Signs: Sign area of up to 110 percent of that allowed by Code at that location. Letter or logo height of up to 110 percent of that allowed by Code for that location.
Amortization of Nonconforming Signs: Nonconformities, that do not qualify for administrative variance under subsection A above, shall be brought into conformance with the provisions of Article 4-1-E of this Chapter as follows:
1. Free-Standing Signs: All free-standing signs that were nonconforming as to sign area, height, setback or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
2. Facade Signs: All facade signs that were nonconforming as to sign area, location or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
3. Signs Along Highway: The State Highway Advertising Control Act of 1972 and the Federal-Aid Highway Act of 1974 govern the amortization of certain signs located within the City. Therefore, this amortization provision shall not apply to any lawful nonconforming sign located within 660 feet of the nearest edge of any interstate or primary highway right-of-way. This distance shall be measured horizontally along a line perpendicular to, or at an angle of 90 degrees to the right-of-way line of the highway.
4. Exceptions: The Board of Zoning Appeals may grant, in a specific case, an exception to this amortization provision if it determines that compliance with the amortization provision would result in severe hardship to the applicant for the exception. In determining severe hardship, the Board shall consider and evaluate the following criteria, if applicable.
  1. The degree of nonconformity.
  2. The condition of the sign and its anticipated life before it will require removal or updating.
  3. The length of time the sign has been installed in its present location and its present condition.
  4. The economic hardship on the applicant as a result of the removal and/or replacement of the sign, including, but not limited to, actual removal and replacement costs and value to the business.
  5. The impact on adjacent property owners if the sign is permitted to remain.
  6. The uniqueness of the property, such as sight considerations, that will be impacted by sign compliance.
  7. Any other factors weighing on the hardship to the applicant.
    If after consideration of the above criteria the Board finds that it constitutes severe hardship for the applicant to comply with the amortization provision, the Board may grant a full exception, or it may grant a partial exception if it finds that partial compliance alleviates the severe hardship. The Board may also approve either a full or partial exception with conditions.
Real Estate, Construction and Miscellaneous Temporary Signs: Nonconforming real estate, construction and miscellaneous temporary signs shall be brought into compliance by January 1, 1995.
Correction of Other Nonconformities: Other nonconforming signs not covered by the above subsections A, B, and C shall be corrected as follows:
1. Issuance of New Sign Permits: No new sign permit shall be issued for a free-standing sign or facade identification sign on property upon which any nonconforming sign is located, until such nonconformity is corrected. On multi-tenant sites, this subsection D1 shall only apply to the tenant's signage.
2. Issuance of Building Permits: All nonconforming signs shall be brought into conformance as a condition of the issuance of any building permit for new construction, additions or exterior remodeling of a value in excess of 25 percent of the value of all improvements on the property on which a nonconforming sign exists.
Alterations and Refacing: A nonconforming sign may not be changed, refaced, replaced, enlarged or reduced, or its frame, pole or supports reshaped without bringing the sign into complete conformity with the provisions of Article 4-1-E of this Chapter.
Maintenance and Repair: A nonconforming sign may be maintained and repaired as required by Article 4-1-E of this Chapter, however, a sign that is damaged by vehicle damage, wind, fire, explosion or act of God beyond 50 percent of its replacement cost may not be repaired except in complete conformity with the provisions of said Article 4-1-E.

Effective on: 1/1/1901

Section 4-1-J-7 OTHER NONCONFORMITIES.

Nonconforming Site Conditions: Certain conditions may exist in some multi-family, commercial or industrial locations within the City that do not conform to 1 or more standards or requirements of these Chapters but which may be remedied without unreasonable cost or effort and which would promote the general welfare of neighboring property and the City at large. Such conditions include lack of screening, inadequate surface or curbing of parking areas or drives, discharge of surface water, noncompliance with 1 or more performance standards or other similar conditions. It is the intent of this Section to require reasonable remedy of such nonconforming conditions, generally concurrent with significant new construction and other improvements or where serious adverse impacts are experienced by neighboring properties or the general public.
1. Significant New Construction: The Community Development Director may require that such site improvements be brought fully or more closely into conformity with these Chapters for a property as part of new construction, alteration or expansion, where the cost of the construction or other work exceeds 10 percent of the value of the existing improvements on the property.
2. Nonconforming Landscaping on Renovation/Expansion Sites:
  1. Any expansion or exterior renovation of a value exceeding 50 percent of the existing improvements should bring the site up to current standards to the greatest extent physically possible. The value of interior renovation in conjunction with exterior and expansion projects is not calculated in this requirement.
  2. Any new expansion, regardless of value, shall provide landscaping in its immediate area to meet current Code, including adjacent perimeter plantings, land use buffers, and screening of equipment. When relatively small areas are affected, the required landscaping may be spread out on the site to avoid glaring differences between the new and existing improvements.
  3. Additional landscaping should be added in proportion to the overall project cost to bring the site more into conformance. The proportion of this additional program should be generally based on the proportion of landscape to overall project cost on similar types of new projects in the City. The priorities for the use of this additional landscaping should be first to address external impacts of the site such as land use buffers and screening of site features, and second to blend in and supplement the plantings required by subsection B-1-b-2 above.
3. Serious Adverse Impacts: If the Community Development Director finds that the nonconformity is creating serious adverse impacts on neighboring properties or on the general public, then the Community Development Director may determine the existence of the nonconformity, the harm therefrom and the appropriate remedy.

Effective on: 1/1/1901

Section 4-1-J-8 VARIANCES PERMITTED.

Except as otherwise provided herein, the Board of Zoning Appeals may grant variances consistent with the intent of this Article, in accordance with the provisions of Article 4-1-K of this Chapter.

Effective on: 1/1/1901

Lenexa City Zoning Code

ARTICLE 4

1-J NONCONFORMING SITUATIONS

Section 4-1-J-1 GENERAL POLICY, APPLICABILITY.

Effective on: 1/1/1901

Section 4-1-J-2 NONCONFORMING USES OF LAND.

Expansion: A nonconforming use of land may not be expanded beyond the area that it occupied on the date that it became nonconforming.
Discontinuance: A nonconforming use of land may not be renewed when the use has been discontinued for 6 consecutive months. Any subsequent use of land shall conform to the applicable regulations of the zoning district in which the land is located.
Change of Use: A nonconforming use of land may not be changed to another use unless the use is permitted in the zoning district in which the land is located.

Effective on: 1/1/1901

Section 4-1-J-3 NONCONFORMING USE OF BUILDINGS OR STRUCTURES.

The lawful nonconforming use of a building or structure may continue subject to the following requirements:

Expansion: A nonconforming use may be expanded throughout a building or structure; provided, that a greater nonconformity in overall parking requirements does not occur, and further provided, that no structure changes are made except those required by law or permitted by the requirements of the zoning district in which the building or structure is located.
Discontinuance: A nonconforming use may not be renewed when the use has been discontinued for 6 consecutive months, and any subsequent use shall conform to the applicable regulations of the zoning district in which the use is located.
Change of Use: A nonconforming use of a building or structure may be changed to another nonconforming use of the same or more restrictive zoning district; provided, that a greater nonconformity in overall parking requirements does not occur. Where a more restrictive nonconforming use has been established, no less restrictive use may be re-established.

Effective on: 1/1/1901

Section 4-1-J-4 NONCONFORMING BUILDING OR STRUCTURE.

A lawful, existing nonconforming building or structure may remain subject to the following requirements:

Expansion: A nonconforming building or structure may not be expanded so as to increase the degree of nonconformity. Other expansions may occur; provided, that such additions comply with the requirements of these Chapters and applicable Building and Life Safety Codes.*
Remodeling Permitted: Remodeling of the structure within the existing building footprint is permitted without a variance; provided, that the remodeling does not increase the degree of nonconformity and that applicable Building and Life Safety Codes are met.*

*See Article 4-8-A and Article 4-8-J of this Title.*
Replacement and Repairs: A nonconforming building or structure may be replaced or restored within 6 months of damage or destruction of not more than 50 percent of its appraised valuation by fire, explosion or act of God or the public enemy; provided, that when such restoration becomes involved in litigation, the time required for such litigation shall not be counted as a part of the 6 months allowed for reconstruction, and nothing in this Chapter shall be taken to prevent the continued occupancy or use of such building or part thereof which existed at the time of such partial destruction, but any building so damaged more than 50 percent of its value may not be rebuilt, repaired or used unless it is made to conform to all regulations for buildings in the district in which it is located; provided, that such restoration as may be made is to the fullest extent possible in conformance with development standards.

Effective on: 1/1/1901

Section 4-1-J-5 NONCONFORMING LOTS.

Merged Lots: A nonconforming lot or parcel may be merged with an adjacent lot or parcel to provide a fully conforming lot or parcel. If the merged lots or parcels, together, do not contain sufficient area for the actual or proposed use, they shall not be considered conforming.
Vacant Lots: The owner of a vacant nonconforming lot or parcel may make a reasonable use of the property as permitted by the applicable zoning district but shall, to the maximum extent practicable, comply with the dimensional requirements of this Chapter. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and 1 or more uses or intensities would comply with applicable yard and setback requirements while others would not, then only 1 of the uses or intensities that would conform with the applicable yard and setback requirements shall be permitted. The Planning Commission shall have reasonable authority to grant exceptions to dimensional requirements of this Chapter for a lot subject to this Section if the development on the lot is subject to plan review by the Planning Commission. Otherwise, the owner may seek a variance from such requirements from the Board of Zoning Appeals.
Lot with Building or Structure: If a nonconforming lot or parcel contains a building or structure on the date on which these Chapters become applicable to it, then the owner may continue the use of that building or structure and may reasonably expand it in any way that does not increase the degree of nonconformity; an increase in building size shall not be deemed to increase the degree of nonconformity unless it increases the encroachment on a required yard or setback or exceeds (or increases the exceeding of) any applicable limits on impervious cover. Remodeling of a structure within the existing building footprint or expansion in compliance with this subsection shall not require a variance but shall be reviewed by the Community Development Director and Building Official as though the lot were conforming.

Effective on: 1/1/1901

Section 4-1-J-6 NONCONFORMING SIGNS.

Administrative Variance for Minor Nonconformities: It is hereby acknowledged that certain minor variations from Code requirements are considered within the intent of Article 4-1-E of this Chapter when balancing aesthetic impact against the cost of modification or replacement of an existing sign. An owner may apply for an administrative variance from the Code by filing the provided application, remitting the fee adopted by ordinance, resolution, or as otherwise permitted, and providing verification that the sign meets all requirements of Article 4-1-E of this Chapter except for nonconformities within the limits described as follows:
1. Free-Standing Signs: Sign area of up to 115 percent of that allowed by Code for that location. Sign height of up to 110 percent of that allowed by Code for that location. Setback of at least 50 percent of that allowed by Code for that location, meeting all traffic visibility criteria and within a minimum of 5 feet from the right-of-way line.
2. Facade Signs: Sign area of up to 110 percent of that allowed by Code at that location. Letter or logo height of up to 110 percent of that allowed by Code for that location.
Amortization of Nonconforming Signs: Nonconformities, that do not qualify for administrative variance under subsection A above, shall be brought into conformance with the provisions of Article 4-1-E of this Chapter as follows:
1. Free-Standing Signs: All free-standing signs that were nonconforming as to sign area, height, setback or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
2. Facade Signs: All facade signs that were nonconforming as to sign area, location or number on a site prior to September 16, 1993, shall be brought into compliance by January 1, 1997. Signs that became nonconforming as of September 16, 1993, shall be brought into compliance by January 1, 1998.
3. Signs Along Highway: The State Highway Advertising Control Act of 1972 and the Federal-Aid Highway Act of 1974 govern the amortization of certain signs located within the City. Therefore, this amortization provision shall not apply to any lawful nonconforming sign located within 660 feet of the nearest edge of any interstate or primary highway right-of-way. This distance shall be measured horizontally along a line perpendicular to, or at an angle of 90 degrees to the right-of-way line of the highway.
4. Exceptions: The Board of Zoning Appeals may grant, in a specific case, an exception to this amortization provision if it determines that compliance with the amortization provision would result in severe hardship to the applicant for the exception. In determining severe hardship, the Board shall consider and evaluate the following criteria, if applicable.
  1. The degree of nonconformity.
  2. The condition of the sign and its anticipated life before it will require removal or updating.
  3. The length of time the sign has been installed in its present location and its present condition.
  4. The economic hardship on the applicant as a result of the removal and/or replacement of the sign, including, but not limited to, actual removal and replacement costs and value to the business.
  5. The impact on adjacent property owners if the sign is permitted to remain.
  6. The uniqueness of the property, such as sight considerations, that will be impacted by sign compliance.
  7. Any other factors weighing on the hardship to the applicant.
    If after consideration of the above criteria the Board finds that it constitutes severe hardship for the applicant to comply with the amortization provision, the Board may grant a full exception, or it may grant a partial exception if it finds that partial compliance alleviates the severe hardship. The Board may also approve either a full or partial exception with conditions.
Real Estate, Construction and Miscellaneous Temporary Signs: Nonconforming real estate, construction and miscellaneous temporary signs shall be brought into compliance by January 1, 1995.
Correction of Other Nonconformities: Other nonconforming signs not covered by the above subsections A, B, and C shall be corrected as follows:
1. Issuance of New Sign Permits: No new sign permit shall be issued for a free-standing sign or facade identification sign on property upon which any nonconforming sign is located, until such nonconformity is corrected. On multi-tenant sites, this subsection D1 shall only apply to the tenant's signage.
2. Issuance of Building Permits: All nonconforming signs shall be brought into conformance as a condition of the issuance of any building permit for new construction, additions or exterior remodeling of a value in excess of 25 percent of the value of all improvements on the property on which a nonconforming sign exists.
Alterations and Refacing: A nonconforming sign may not be changed, refaced, replaced, enlarged or reduced, or its frame, pole or supports reshaped without bringing the sign into complete conformity with the provisions of Article 4-1-E of this Chapter.
Maintenance and Repair: A nonconforming sign may be maintained and repaired as required by Article 4-1-E of this Chapter, however, a sign that is damaged by vehicle damage, wind, fire, explosion or act of God beyond 50 percent of its replacement cost may not be repaired except in complete conformity with the provisions of said Article 4-1-E.

Effective on: 1/1/1901

Section 4-1-J-7 OTHER NONCONFORMITIES.

Nonconforming Site Conditions: Certain conditions may exist in some multi-family, commercial or industrial locations within the City that do not conform to 1 or more standards or requirements of these Chapters but which may be remedied without unreasonable cost or effort and which would promote the general welfare of neighboring property and the City at large. Such conditions include lack of screening, inadequate surface or curbing of parking areas or drives, discharge of surface water, noncompliance with 1 or more performance standards or other similar conditions. It is the intent of this Section to require reasonable remedy of such nonconforming conditions, generally concurrent with significant new construction and other improvements or where serious adverse impacts are experienced by neighboring properties or the general public.
1. Significant New Construction: The Community Development Director may require that such site improvements be brought fully or more closely into conformity with these Chapters for a property as part of new construction, alteration or expansion, where the cost of the construction or other work exceeds 10 percent of the value of the existing improvements on the property.
2. Nonconforming Landscaping on Renovation/Expansion Sites:
  1. Any expansion or exterior renovation of a value exceeding 50 percent of the existing improvements should bring the site up to current standards to the greatest extent physically possible. The value of interior renovation in conjunction with exterior and expansion projects is not calculated in this requirement.
  2. Any new expansion, regardless of value, shall provide landscaping in its immediate area to meet current Code, including adjacent perimeter plantings, land use buffers, and screening of equipment. When relatively small areas are affected, the required landscaping may be spread out on the site to avoid glaring differences between the new and existing improvements.
  3. Additional landscaping should be added in proportion to the overall project cost to bring the site more into conformance. The proportion of this additional program should be generally based on the proportion of landscape to overall project cost on similar types of new projects in the City. The priorities for the use of this additional landscaping should be first to address external impacts of the site such as land use buffers and screening of site features, and second to blend in and supplement the plantings required by subsection B-1-b-2 above.
3. Serious Adverse Impacts: If the Community Development Director finds that the nonconformity is creating serious adverse impacts on neighboring properties or on the general public, then the Community Development Director may determine the existence of the nonconformity, the harm therefrom and the appropriate remedy.

Effective on: 1/1/1901

Section 4-1-J-8 VARIANCES PERMITTED.

Except as otherwise provided herein, the Board of Zoning Appeals may grant variances consistent with the intent of this Article, in accordance with the provisions of Article 4-1-K of this Chapter.

Effective on: 1/1/1901