The words and terms used in this division are considered terms of art, i.e., having a unique meaning in the context of this division. Therefore, definitions applicable to the nonconforming use provisions of this division will not apply elsewhere in this article. However, other terms which are defined in section 10-1.101 may be used in this division and, if used, shall be bound by the definitions contained therein. Unless otherwise specifically provided or unless clearly indicated by the context, the words and phrases defined in this section shall have the following meanings:

Abandonment means to cease a use or activity or the use of a building or structure without intent to resume, but excluding periods of discontinuance; provided, however, discontinuance for a period of more than 24 months shall be deemed to constitute abandonment unless the owner is granted an extension of time by the board of adjustment and appeals. Furthermore, the use of a parcel of property for the reinstallation or relocation of a mobile home use will not be considered to have been abandoned where sufficient existing infrastructure has been previously installed to support the resumption of the mobile home use on that parcel at that location. Existing infrastructure, for the purpose of this section, shall mean that the replacement will be serviced by an existing electric power pole as determined by past utility bills as provided by the applicant, a functioning septic system as determined by the county environmental health unit, potable water, and documented legal access to the property.

Change of use means, to a more intensive use, a change in which the proposed use increases the extent of nonconformity. The term "change of use," to a less intensive use, means a change in which the proposed use decreases the extent of nonconformity.

Damaged or destroyed means a use, building or structure that has been harmed by a natural event or by a manmade action, other than an action by the property owner/developer, and which results in a need for reconstruction in order to satisfy all applicable county codes and ordinances, state statutes and federal requirements.

Discontinue means to cease a use or activity or the use of a building or structure with the intent to resume the same or another use or activity within the short-term, provided, however, a discontinuation of use for a period of more than 24 months shall be deemed to constitute an abandonment, unless the owner of the subject property is granted an extension of time by the board of adjustment and appeals. The term "discontinuation" includes temporary or short-term (not more than 24-months) interruptions in a use during periods of remodeling, maintaining or rearranging a facility, or during normal periods of vacation or seasonal closure, and changes of use or tenancy, or periods during which the property is being held for sale or lease.

Effective date includes the effective date of any amendments to this chapter if the amendment, rather than the chapter as originally adopted, creates a nonconformity.

Expenditure means a sum of money paid out in return for some benefit or to fulfill some obligation. The term "expenditure" also includes binding contractual commitments to make future expenditures, as well as any other substantial changes in position.

Extension/expansion means any increase in the number of dwelling units, the size of a dwelling unit or units, the gross floor area of a non-residential building or structure or the gross area devoted to an outdoor use including, but not limited to, parking.

Nonconforming use means a nonconformity that occurs when property is used for a purpose or in any manner made unlawful by the lists of permitted uses, land use development criteria, commercial location standards, buffer zoned standards, or any other use regulations, development standards or dimensional requirements applicable to the subject property under this division.

Nonconformity means a situation that occurs when, as of the effective date of the ordinance from which this article is derived, an existing lot, structure or improvement, or the use of an existing lot, structure or improvement no longer conforms to one or more of the regulations applicable to the zoning district in which the lot, structure or improvement is located.

Reconstruction means the rebuilding of a building or structure which has been damaged or destroyed.

Remodeling means any change to or modification of the physical appearance of a building or structure without any increase in the number or size of dwelling units or in the gross floor area of a non-residential use.

Repair and/ormaintenance means any actions which correct defects in or which extend the useful life of or which brings a building, structure or use, including parking, into conformance with applicable building, electrical, mechanical, fire, health, safety or related county codes and ordinances.

(Code 1992, § 10-6.301; Ord. No. 07-20, § 2, 7-10-2007)

The purpose of this division is to provide regulations pertaining to the continuation and elimination of pre-existing uses, buildings, structures, lots, parking facilities and signs, which do not conform to the standards or requirements of this article, or any amendment thereto. It is the intent of this division to permit continuation of such nonconformities, but with limitations and restrictions on the extension, enlargement or expansion of the nonconformity, change of use, rebuilding of damaged or destroyed structures, discontinuation of use, and abandonment of the structure or use; to provide procedures for elimination of such nonconformities through amortization; and to provide standards and procedures for determination that a property has lost its legal nonconformity status.

(Code 1992, § 10-6.302; Ord. No. 07-20, § 2, 7-10-2007)

(a)

Unless otherwise specifically provided in this division and subject to the restrictions and qualifications set forth herein, nonconformities existing on the effective date of the ordinance from which this article is derived may be continued.

(b)

The burden shall be on the property owner/developer to establish entitlement to continue a nonconforming use or to complete a nonconforming project. For the purposes of this section, completion shall mean the issuance of a certificate of occupancy, if required, or the close-out of a permit, if required.

(Code 1992, § 10-6.303; Ord. No. 07-20, § 2, 7-10-2007)

(a)

The schedule of nonconformity regulations appearing at the end of this division establishes:

(1)

The extent of permissible activities which can be accommodated with respect to the types of nonconformity without loss of legal nonconformity status; and

(2)

The types of activities which will result in the loss of legal nonconformity status.

(b)

The supplemental nonconformity regulations establish the requirements applicable to specific types of nonconformities and to specific activities by property owners/developers.

(c)

If there is a conflict between any provision of the schedule of nonconformity regulations and any provision of the supplemental nonconformity regulations, the provision of the supplemental nonconformity regulations shall control.

(Code 1992, § 10-6.304; Ord. No. 07-20, § 2, 7-10-2007)

(a)

Generally. A nonconformity permit shall be required for all permissible activities whenever any other county permit, excluding an occupational license, is required for the applicable activity.

(b)

Nonconforming lots.

(1)

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 minimum lot area applicable to the zoning district, the lot may be used as proposed, if for a single-family or two-family use. With respect to all other uses, the lot shall be made conforming if possible, through resubdivision, acquisition of adjoining property or other techniques. The property owner/developer may apply for a nonconformity relief pursuant to section 10-6.306.

(2)

When a use proposed for a nonconforming lot is one that is conforming in all other respects but the applicable setback requirements, the property owner/developer may apply for a nonconformity relief pursuant to section 10-6-306.

(3)

A nonconformity relief may be granted by the board of adjustment and appeals pursuant to section 10-6.306 for a nonconforming lot if the proposed use is a permitted use in the applicable zoning district and construction of such use cannot be reasonably accomplished in conformity with the area or setback requirements. Mere financial hardship will not constitute sufficient grounds for finding that a nonconformity relief is needed.

(4)

If an undeveloped nonconforming lot adjoins one or more other undeveloped nonconforming lots in the same ownership, a deviation shall not be granted if resubdivision to make both lots conforming can be reasonably accomplished.

(5)

All nonconforming lots on property which abut developed lots, or in relation to which developed lots exist within 500 feet of the nonconforming lot, and which have the same or similar nonconformity, shall be considered to be conforming, provided that the nonconforming lot is in character with lots in the surrounding area or in character with previously developed lots in the same area or neighborhood.

(c)

Nonconforming uses of land.

(1)

A nonconforming use of open land may not be enlarged or increased, nor may it be extended to cover more land than was occupied by that use when it became nonconforming.

(2)

A nonconforming use shall not be moved in whole or in part to any other portion of the parcel occupied by such use which it became nonconforming, except fences located within the canopy road overlay zone as of April 8, 2008.

Fences located within the canopy road overlay zone as of April 8, 2008, may be moved in whole or in part to any other portion of the parcel located outside of the canopy road overlay zone, pursuant to any and all applicable criteria and standards set out in section 10-4.206.

(3)

A nonconforming use shall not be converted to another less intensive nonconforming use, except pursuant to a nonconformity relief granted pursuant to section 10-6.306. In no event shall a nonconforming use be changed to a more intensive nonconforming use.

(4)

A nonconforming use may be changed to a conforming use regardless of whether the new use conforms with the development standards or other dimensional requirements of this division.

(5)

If a nonconforming use is discontinued, it may be resumed without further review by the county. If, however, a nonconforming use is abandoned, any subsequent use of the land shall conform with the use and the development standards or other dimensional requirements of this division.

(6)

Upon compliance with the procedures set forth in section 10-6.308, the county may determine that the legal nonconformity status of a nonconforming use of land has been lost under any of the following circumstances:

a.

Abandonment of the use.

b.

Unlawful extension or expansion of the use.

c.

Change of occupancy to a more intensive use.

(d)

Nonconforming buildings and structures.

(1)

One- and two-family.

a.

Any existing one- or two-family residential building or structure made nonconforming as to dimensional requirements, site improvement requirements, and/or development standards by this division may be continued indefinitely.

b.

Any existing one- or two-family residential buildings or structures made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may be repaired and maintained, remodeled and reconstructed without limitation as to the cost of the work in relation to the value of the building or structure.

c.

Any existing one- or two-family residential building or structure made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may be extended or enlarged so long as said extension or enlargement does not contribute to nor increase the specific nonconforming dimensional or site improvement requirement.

d.

The use of any existing one- or two-family residential buildings or structures made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may not be changed to another more intensive use unless such use is permitted by this division and complies with all applicable requirements, including development standards or other dimensional requirements, site improvement standards, and parking space requirements.

e.

If any existing one- or two-family residential buildings or structures made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division are discontinued, they may be resumed without further review by the county. If, however, such building or structure is abandoned, any subsequent use involving the expenditure of 50 percent or more of the value of the building or structure shall not be permitted except in compliance with this division. Subsequent use involving an expenditure of less than 50 percent of the value of the building or structure shall be permitted.

f.

Any existing one- or two-family residential building or structure made nonconforming as to parking space requirements by this division may be continued indefinitely; provided, however, that upon the extension or enlargement of such use, there must be compliance with the parking space requirements of this division unless a nonconformity relief is granted pursuant to section 10-6.306.

g.

Any existing one- or two-family building or structure made nonconforming as to development standard or other dimensional requirements and lot site improvements by this division damaged or destroyed by a catastrophic event may be restored upon application to the administrative body responsible for permitting damaged or destroyed property.

(2)

All other uses.

a.

Any existing multiple-family residential building or structure or a non-residential building or structure, except any fence located within the canopy road overlay zone as of April 8, 2008, made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may be continued indefinitely, unless such building or structure is made subject to amortization by adoption by Board of County Commissioners of an amortization ordinance and schedule, after proper notice and public hearing and receipt of a report and recommendation from the planning commission as set forth in section 10-6.307.

b.

Any existing multiple-family residential building or structure or a non-residential building or structure, except any fence located within the canopy road overlay zone as of April 8, 2008, made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may be repaired and maintained, remodeled and reconstructed so long as the cost of the work is less than 50 percent of the structural value of the building or structure.

c.

Any existing multiple-family residential building or structure or a non-residential building or structure, except any fence located within the canopy road overlay zone as of April 8, 2008, made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements may be extended or enlarged by up to ten percent so long as said extension or enlargement does not contribute to nor increase the specific nonconforming dimensional or site improvement requirement.

d.

The use of any existing multiple-family residential building or structure or non-residential building or structure made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division may not be changed to another more intensive use. A change to another less intensive use shall be permitted provided that such use is permitted by this division, the extent of the nonconformity is decreased and the use complies with all other applicable requirements, including dimensional requirements and site improvement requirements.

e.

If any existing multiple-family residential or non-residential buildings or structures made nonconforming as to development standards or other dimensional requirements and/or site improvement requirements by this division are discontinued, they may be resumed without further review by the county. If, however, such building or structure is abandoned, any subsequent use involving an expenditure of 50 percent or more of the structural value of the building or structure shall not be permitted except in compliance with all applicable zoning district regulations. Subsequent use involving an expenditure of less than 50 percent of the structural value of the building or structure shall be permitted only by nonconformity relief granted pursuant to section 10-6.306.

f.

Any existing multiple-family residential or non-residential building or structure made nonconforming as to parking space requirements by this division may be continued indefinitely; provided, however, that upon the extension or enlargement of such use, repair or maintenance of such use, remodeling or reconstruction of such use with a value of 50 percent or more of the value of the building or structure, there must be compliance with the parking space requirements of this division unless a nonconformity relief from the otherwise required off-street parking is granted pursuant to section 10-6.306.

g.

Any existing multiple-family residential or non-residential building or structure, except any fence located within the canopy road overlay zone as of April 8, 2008, made nonconforming as to development standards or other dimensional requirements and/or site improvement by this division damaged or destroyed by a catastrophic event may be restored upon application to the administrative body responsible for permitting damaged or destroyed property.

h.

Any fence located within the canopy road overlay zone as of April 8, 2008, may be:

1.

Moved in whole or in part to another portion of the parcel occupied by such use which it became nonconforming so long as such relocation is outside of the canopy road overlay zone;

2.

Continued indefinitely; or

3.

Repaired and maintained, regardless of the cost of the materials and labor; if, and only if, a permit for that fence is issued by the county, pursuant to any and all applicable criteria and standards set out in section 10-4.206.

(3)

Upon compliance with the procedures set forth in section 10-6.308, the county may determine that the legal nonconformity status of a nonconforming building or structure has been lost under any of the following conditions:

a.

Abandonment of the building or structure.

b.

Unlawful extension or expansion of the building or structure.

c.

Repair and maintenance, remodeling or reconstruction of the building or structure where the cost of the work exceeds 50 percent of the structural value of the building or structure, provided, however, that this shall not apply to single-family and two-family residences.

d.

Change of occupancy within the nonconforming building or structure to a more intensive use.

(4)

Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any county or state official charged with protecting the public health or safety, upon order of such official.

(e)

Nonconforming use of a conforming building or structure. A nonconforming use of a conforming building or structure which is otherwise conforming may not be enlarged or increased nor may it be extended to cover more area of the building or structure than was occupied by that use when it became nonconforming. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this division, but no such use shall be extended to occupy any land outside such building.

(1)

If no structural alterations are made, any nonconforming use of a structure, or a structure and land, may be changed to another nonconforming use provided that the board of adjustment and appeals, by making findings in the specific case, shall find that the proposed use is more appropriate to the zone than the existing nonconforming use. In permitting such change, the board of adjustment and appeals may require appropriate conditions and safeguards in accord with the provisions of this division.

(2)

A nonconforming use of a conforming building or structure may be changed to a conforming use regardless of whether the new use conforms with the development standards or other dimensional requirements of this division. Any structure, or a structure and land in combination, in or on which a nonconforming use is superseded by a permitted use shall conform to the regulations for the zoning district in which the structure is located, and the nonconforming use may not be resumed. When a nonconforming use of a structure is replaced by a less intensive nonconforming use, the occupancy may not revert to a more intensive use. Further, a nonconforming use shall not be changed to a less intensive nonconforming use unless all development standards or other dimensional and site improvement requirements for such use can be satisfied; provided, however, that nonconformity relief for parking requirements may be granted pursuant to section 10-6.306 if the property owner can demonstrate, in addition to the requirements of section 10-6.306:

a.

That the required additional parking cannot feasibly be provided on-site or nearby;

b.

That the change is to a use which is consistent with the land use element of the Comprehensive Plan, other applicable elements of the Comprehensive Plan and all other applicable provisions of this division; and

c.

That nonconformity relief is necessary in order for the property owner to maintain reasonable use of the property.

(3)

If a nonconforming use of a conforming building or structure is discontinued, it may be resumed without further review by the county. If, however, a nonconforming use of a conforming building or structure is abandoned, any subsequent use of the land shall conform with the applicable use and development standards or other dimensional requirements of this division.

a.

Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction, for the purposes of this section, means damage to an extent of more than 50 percent of the structural value of the structure immediately prior to destruction.

b.

Additions, extensions and alterations may be made to any nonconforming public use, including, but not limited to, schools, parks, libraries, and fire stations, if the addition, extension or alteration does not extend beyond the boundaries of the site in existence when the use became nonconforming, and does not infringe upon any off-street parking required by this division.

(4)

Upon compliance with the procedures set forth in section 10-6.308, the Board of County Commissioners may determine that the legal nonconformity status of a nonconforming use of a conforming building or structure has been lost under any of the following conditions:

a.

Abandonment of the nonconforming use.

b.

Unlawful extension or expansion of the nonconforming use.

c.

Change of occupancy to a more intensive nonconforming use.

(Code 1992, § 10-6.305; Ord. No. 07-20, § 2, 7-10-2007; Ord. No. 08-25, §§ 2, 3, 11-25-2008)

(a)

Requests for nonconformity relief shall be made on application forms provided by the County Administrator or designee. The application shall be filed with the administrative body initially responsible for review of the subject project to review procedures as specified in article VII of this chapter.

(b)

Nonconformity relief shall only be granted if all of the following are found:

(1)

Development of the property for permitted uses is not reasonably possible without the nonconformity relief.

(2)

Except as otherwise expressly provided in this division, the nonconformity relief shall not increase or create a nonconforming use or condition.

(3)

The nonconformity relief can be granted without any significant adverse impact on surrounding properties and is not detrimental to the public health, safety and welfare.

(4)

The nonconformity relief granted is the minimum necessary to accommodate the proposed use.

(5)

The adverse impact on surrounding properties of the nonconformity relief would be substantial but may be mitigated, and granting the nonconformity relief is conditioned upon performance of such mitigating measures.

(c)

An application for nonconformity relief shall be reviewed contemporaneously with the project in accordance with the review procedures applicable to such project. The granting or denial of the requested nonconformity relief shall be part of the final disposition of the review of such project.

(d)

Any party aggrieved by a decision pertaining to the granting or denial of nonconformity relief may file an administrative appeal pursuant to section 10-6.308.

(Code 1992, § 10-6.306; Ord. No. 07-20, § 2, 7-10-2007)

(a)

At such time as the planning commission determines that reasons exist for a property to lose its legal nonconformity status, notice of such determination shall be given to the property owner by the county. The notice shall be given by certified mail, return receipt requested, shall clearly state the reasons for the determination, and shall advise the property owner that a hearing to consider the determination shall be held by the planning commission on a date not less than 20 days following the date of the notice. The time and place of the hearing shall be specified in the notice.

(b)

A public hearing shall be conducted by the planning commission with respect to all proceedings regarding loss of legal nonconformity status. A staff report shall be prepared and shall contain a recommendation as to the appropriate course of action. Where such proceedings have been instituted against a group of similarly situated nonconformities, such proceedings may be consolidated for hearing purposes.

(c)

Following the close of the public hearing, the planning commission shall render its decision within 30 days of the date of the hearing. The decision shall be supported by written findings, and a record of the proceedings shall be kept.

(d)

Any party aggrieved by the decision of the planning commission may file an administrative appeal pursuant to section 10-6.308.

(Code 1992, § 10-6.307; Ord. No. 07-20, § 2, 7-10-2007)

(a)

All administrative appeals concerning nonconformity relief, and loss of legal nonconformity status shall be heard by the Board of County Commissioners in accordance with the provisions of this section.

(b)

The following standards shall apply to the loss of legal nonconformity status:

(1)

For a nonconforming use of land or nonconforming use of a conforming building or structure, nonconforming relief shall be granted if the property owner/developer can demonstrate, by clear and convincing evidence, that the property owner/developer relying in good faith upon some act of omission of the county has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust not to continue the nonconforming use.

(2)

For a nonconforming building or structure or a nonconforming lot, nonconformity relief shall be granted if the property owner/developer can demonstrate by clear and convincing evidence, a unique and unnecessary hardship that is not self-created.

(3)

A request for an extension of time of the period of discontinuance of a use shall be granted for a six-month period provided the criteria stated in subsection (b)(1) of this section are satisfied.

(c)

All appeals shall be filed with the County Attorney within 20 days of the date of the notice of decision.

(d)

Where an adequate record and findings have been made by the planning commission or the board of adjustment and appeals, the Board of County Commissioners may elect to review the appeal on the record without further hearing. Alternatively, the Board of County Commissioners may elect to conduct its own hearing on the appeal. Where a hearing is to be held, notice of the type of hearing and date shall be given to the appellant by certified mail, return receipt requested, not less than 20 days prior to the date set for the hearing. Where a hearing is to be held, a supplemental staff report shall be prepared.

(e)

A final decision on the appeal shall be rendered within 30 days of the hearing on the appeal where a hearing is conducted, or within 30 days of the consideration of the appeal where no hearing is conducted. In any event, the final decision shall be rendered within 90 days following the filing of the appeal unless a written waiver of this limitation is signed by the appellant. All final decisions shall be supported by written findings of fact and a record of the proceedings shall be kept.

(Code 1992, § 10-6.308; Ord. No. 07-20, § 2, 7-10-2007)

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(Code 1992, § 10-6.309; Ord. No. 07-20, § 2, 7-10-2007; Ord. No. 08-25, § 4, 11-25-2008)

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