Lincoln City Zoning Code
ARTICLE IX
Nonconformance
§ 260-50 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A building, structure (including a sign), or parcel of land, or use thereof, which was lawfully in existence at the time of adoption or amendment of this chapter, and not in conformity with the provisions of this chapter or amendment.
§ 260-51 Lawfully existing or established buildings, structures and uses.
A building, structure or use of land was lawfully established if it was in existence prior to the effective date of this chapter, or was established in conformance with the Zoning Ordinance in effect at the time the use was first established. A lot was lawfully established if it was of record or shown on a recorded plat prior to the effective date of this chapter. All other lots that were not lawfully established are not protected by this section. For the purposes of this chapter, the creation and/or the use of a parcel of land for a particular use which was legal at the time the parcel of land was created and/or so used shall not serve to create the lawful establishment or lawful existence of any use that was not legal at the time of creation and/or use of the land, regardless of subsequent changes in allowable legal use.
§ 260-52 Most restrictive regulations to apply.
A building, structure or parcel of land nonconforming by more than one factor, such as by use, dimension, area or parking, shall comply with all regulations of this article. Where the regulations conflict, the most restrictive regulations shall apply.
§ 260-53 Existence by variance or special use permit.
A nonconforming building, structure, or parcel of land or the use thereof, which exists by virtue of a variance or a special use permit (or special exception) granted by the Board shall not be considered a nonconformance for the purposes of this article, and shall not acquire the rights of this article. Rather, such building, structure, sign, parcel of land, or use thereof shall be considered a use by variance or a use by special use permit and any moving, addition, enlargement, expansion, intensification or change of such building, structure, sign, parcel of land or use thereof to any use other than a permitted use or other than in complete conformance with this chapter shall require a further variance or special use permit from the Zoning Board of Review.
§ 260-54 Building or structure nonconforming by use.
A.
Definition. A lawfully established use of land, building, or structure, which is not a permitted use in the zoning district in which it is located, as set forth in Article III, is nonconforming by use.
B.
Purpose. Nonconforming uses are incompatible with and detrimental to permitted uses in the zoning districts in which they are located. Nonconforming uses cause disruption of the comprehensive land use pattern of the Town, inhibit present and future development of nearby properties, and confer upon their owners a position of unfair advantage. It is intended that existing nonconforming uses shall not justify further departures from this chapter for themselves and other properties.
C.
Treatment in residential zones. Nonconforming uses in residential zones are to be treated in stricter fashion than nonconforming uses located in nonresidential zones. Due to the disruption which nonconforming uses cause to the peace and tranquility of a residential zone, nonconforming uses therein should be eventually abolished or reduced to total conformity over time.
D.
Continuance of use. Nothing in this chapter shall prevent or be construed to prevent the continuance of a nonconforming use of any building or structure for any purpose to which such building or structure was lawfully established.
E.
Maintenance and repair. A building or structure containing a nonconforming use may be maintained and repaired except as otherwise provided in this article.
F.
Moving. A building or structure containing a nonconforming use shall not be moved in whole or in part either on or off the lot on which it is located unless the use contained within such building or structure is made to conform to the use regulations of the zone in which it is located.
G.
Enlargement or addition. A building or structure containing a nonconforming use shall not be added to or enlarged in any manner, including any addition or enlargement in floor area or volume, unless the use contained within such building or structure, including such addition or enlargement, is made to conform to the use regulations of the zone in which it is located.
H.
Expansion. A nonconforming use of a building or structure shall not be expanded into any other portion of the building or structure which contains a conforming use or which is unoccupied or unused.
I.
Intensification.
(1)
A nonconforming use of a building, structure or land shall not be intensified in any manner. Intensification shall include, but not be limited to, increasing hours of operation, increasing the number of dwelling units, increasing the seating capacity of a place of assembly, or increasing the size of the parking area. However, this section shall not prohibit the reconfiguration of existing dwelling units within a building or structure so long as such reconfiguration complies with the requirements of Subsection I(2) below.
(2)
A conforming use within a building or structure which is nonconforming by dimension may be intensified, provided that such intensification is in conformance with the use and lot area per dwelling unit regulations, if applicable, for the zone in which it is located.
J.
Change of use.
(1)
Within any residential zone, a nonconforming use shall only be changed to a permitted use. A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use.
(2)
Within any business or manufacturing zone, a nonconforming use may be changed to a permitted use, or may be changed to a different nonconforming use by special use permit in accordance with Article XI. A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use. A change in ownership is not a change in use.
K.
Abandonment. If a nonconforming use is abandoned, it may not be reestablished. Abandonment of a nonconforming use shall consist of some overt act, or failure to act for duration of one year, which could reasonably lead one to believe that the owner of the nonconforming use neither claims nor retains any interest in continuing the nonconforming use unless the owner can demonstrate intent not to abandon the use. An involuntary interruption of nonconforming use, such as by fire and natural catastrophe, does not establish the intent to abandon the nonconforming use. However, if any nonconforming use is halted for a period of one year or more, the owner of the nonconforming use will be presumed to have abandoned the nonconforming use, unless that presumption is rebutted by the presentation of sufficient evidence of intent not to abandon the use.
§ 260-55 Building or structure nonconforming by dimension.
[Amended 2-24-2025 by Ord. No. 2025-2]
A.
Definition. A lawfully established building, structure or parcel of land not in compliance with the dimensional regulations of this chapter is nonconforming by dimension. Dimensional regulations include all regulations of this chapter, other than those pertaining to the permitted use. A lawfully established building, structure or parcel of land, or use thereof, not in compliance with the parking regulations of this chapter as set forth in Article V is also nonconforming by dimension. A lawfully existing or lawfully established lot that is not in compliance with the dimensional regulations of this chapter, including but not limited to those regulations for minimum lot size, lot width and lot frontage, (also known as a substandard lot of record) is also nonconforming by dimension.
B.
Purpose. Buildings or structures that are nonconforming by dimension are likely to cause overcrowding and congestion in the neighborhoods, contribute to unhealthy conditions, and are contrary to the purposes of this chapter. Buildings or structures that are nonconforming by dimension cause disruption of the comprehensive land use pattern of the Town, inhibit present and future development of nearby properties, and confer upon their owners a position of unfair advantage. It is intended that existing buildings or structures that are nonconforming by dimension shall not justify further departures from this chapter for themselves or for any other property.
C.
Continuance. Nothing in this chapter shall prevent or be construed to prevent the continuance of the use of any building or structure nonconforming by dimension for any purpose to which such building or structure is lawfully established.
D.
Maintenance and repair. A building or structure nonconforming by dimension may be maintained or repaired except as otherwise provided in this section.
E.
Moving. A building or structure nonconforming by dimension shall not be moved in whole or in part to any other location on the lot in which it is located unless every portion of such building or structure is made to conform to all of the dimensional requirements of the zone in which it is located.
F.
Addition and enlargement. A building or structure nonconforming by dimension shall not be added to or enlarged in any manner, unless such addition or enlargement conforms to all of the dimensional regulations of the zone in which the building or structure is located, except as provided for in subsection § 260-57C of this section. Any addition or enlargement that exceeds what is permitted as a modification request under § 260-74 may be permitted by dimensional variance. See Article X.
G.
Expansion. A conforming use within a building or structure which is nonconforming by dimension (other than by lot area per dwelling unit) may be expanded into any other portion of the building or structure which is unoccupied or unused.
H.
Intensification. A conforming use within a building or structure which is nonconforming by dimension may be intensified, provided that such intensification is in conformance with the use and lot area per dwelling unit regulations, if applicable, for the zone in which it is located.
I.
Change in use. A conforming use within a building or structure nonconforming by dimension may be changed to any other conforming use.
J.
Demolition. A building or structure nonconforming by dimension, if voluntarily demolished, shall not be reconstructed, unless it conforms to the dimensional regulations of the zone in which it is located. Such voluntary demolition shall be considered an abandonment of the use as set forth in § 260-54K. If such building or structure is involuntarily demolished, destroyed, or damaged, it may be repaired or rebuilt to the same size and dimension as previously existed.
§ 260-56 Land nonconforming by use.
A.
Continuance. The lawfully established nonconforming use of land, where no building is involved, may be continued, provided that no such nonconforming use of land shall in any way be expanded or intensified either on the same or adjoining property.
B.
Change of use. The nonconforming use of land shall not be changed to a different use, unless such use conforms to the regulations of the zone in which it is located.
§ 260-57 Land nonconforming by area.
[Amended 2-24-2025 by Ord. No. 2025-2]
A.
Creation of substandard lots. No lot areas shall be reduced so that the total lot area, setbacks, or lot width shall be less than the minimum dimensional requirements of Article IV.
B.
Enlargement of undersized lots. Lawfully established lots which have less than the minimum area requirements may be maintained and may be changed by adding additional land to such lots without prejudice to the rights of the owner of such lots pursuant to the provisions of this section.
C.
Dimensional requirements. Notwithstanding the failure of a single substandard lot of record or contiguous lots of record to meet the dimensional and/or quantitative requirements of this Zoning Ordinance, and/or road frontage or other access requirements applicable to the district as stated in the ordinance, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. For any structure proposed under this section on a substandard lot of record, the following dimensional regulations shall apply:
(1)
Minimum building setbacks, lot frontage and lot width requirements for a lot which is nonconforming in area shall be reduced by applying the building setback, lot frontage, and lot width requirements from another zoning district in which the subject lot would be conforming as to lot area. If the subject lot is not conforming as to lot area in any zoning district, the setbacks, lot frontage, and lot width shall be reduced by the same proportion that the area of such substandard lot meets the minimum lot area of the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets 40% of the minimum lot area required in the district in which it is located, the setbacks, frontage and width shall each be reduced to 40% of the requirements for those dimensional standards in the same district.
(2)
Maximum lot building coverage for lots that are nonconforming in area shall be increased by the inverse proportion that the area of such substandard lot meets the minimum area requirements in the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets 40% of the required minimum lot area, the maximum lot building coverage is allowed to increase by 60% over the maximum permitted lot building coverage in that district.
D.
The necessary computations and determination of the required building side and rear setbacks for each substandard lot shall be made by the Zoning Enforcement Officer at the time of application for a building permit.
§ 260-58 Nonconforming by dwelling units.
A building or structure containing more dwelling units than are permitted by the use regulation of this chapter shall be nonconforming by use. A building or structure containing a permitted number of units by the use regulations of this chapter, but not meeting the lot area per dwelling unit regulation, or not meeting the dimensional regulations per dwelling unit, shall be nonconforming by dimension.
§ 260-59 Buildings and structures nonconforming by parking.
A building or structure is considered nonconforming by parking if the lawfully established use of the building or structure does not meet the parking requirements of Article V. No use shall be expanded, enlarged, or intensified unless additional parking spaces are supplied to meet the requirements of Article V for such expansion, enlargement, or intensification.