The purpose of this division is to establish regulations and limitations for exceptions to the continued existence of uses, lots and structures which were established prior to the effective date of this chapter which do not conform to the provisions of this chapter. Such nonconformities may continue, but the provisions of this division are designed to curtail enlargement or expansion of such nonconformities and to encourage their eventual elimination in order to preserve the integrity of the zoning districts and the regulations by this chapter.

(Code 1961, Ch. 43, § 5-101(a))

(a)

Any nonconforming use, structure or lot that legally existed prior to the effective date of this chapter or any use, structure or lot that has been rendered nonconforming by the provisions of this chapter may continue to be utilized in the same fashion as existed prior to the adoption of this chapter. A property owner who seeks acknowledgment from the city of the continuing nature of the nonconforming status of a property shall provide proof that the nonconforming use of the property has not been abandoned within the past five (5) years and shall provide descriptions of the use both as it has existed and as proposed in the future.

(b)

Any conforming use, structure or lot legally existing under the provisions of this chapter shall not be rendered nonconforming by action of the city, county, or state in the acquisition of property for street or drainage right-of-way.

(c)

Any rezoning of a property occupied by a nonconforming use shall be accomplished only through a planned development process. If the planned development is approved but is not developed, the property shall not revert to its former nonconforming use status or be utilized as a nonconforming use.

(Code 1961, Ch. 43, § 5-101(b); Ord. No. 18,324, § 1(v), 8-1-00; Ord. No. 20,288, § 1, 7-6-10)

(a)

Expansions. A nonconforming use shall not be extended, expanded, enlarged or increased in intensity to any structure or land area other than that occupied by such nonconforming use on the effective date of this chapter, or any amendment hereto which causes such use to become nonconforming.

(b)

No change in use.

(1)

A nonconforming use of a building or lot may not be changed to another nonconforming use, whether or not the uses are in the same zoning classification.

(2)

Any time there is a proposed change in occupancy of a nonconforming property, where the property is nonconforming to the underlying zoning, the determination of planning staff that the nonconforming use may continue shall be posted on the site. The notice shall be posted continuously for seven (7) days at the owner's expense on signage provided by the planning department. Any person may appeal the determination to the board of zoning adjustment. Any appeal of the determination must be filed no later than ten (10) days after the date the property was first posted.

(c)

Abandonment or discontinuance. A nonconforming use that has been discontinued or abandoned for a period of six (6) months shall not be reestablished or resumed. Any subsequent use or occupancy of such land or structure shall comply with the regulations of the zoning district in which such land or structure is located.

(d)

Preregulation mobile homes and manufactured homes. A preregulation mobile home or a manufactured home lawfully placed prior to annexation or the effective date of Ordinance No. 15,438 shall be a nonconforming use. Except as provided below, when removed, a nonconforming preregulation mobile home shall not be returned or replaced by a preregulation mobile home. A preregulation mobile home or manufactured home may be replaced, however, by a manufactured home within a manufactured home park. In order to replace a nonconforming mobile home or manufactured home with a manufactured home, when such home is not located within a manufactured home park, the property must be rezoned to the R-7A district and site plan review approval obtained or a conditional use permit obtained as required by this chapter.

(e)

Amortization of certain standards. For purposes of automobile salvage yards and similar uses which are nonconforming with respect to the standards set forth in section 36-321, the following standards shall apply:

(1)

All areas of land utilized in the storage, processing, dismantling or transport of auto bodies or similar vehicle bodies shall be brought into compliance with the provision of section 36-321 within four (4) calendar years beginning January 30, 1992.

(2)

Once compliance has been gained with the provisions of section 36-321, the boundaries of the then occupied salvage or storage area shall not be expanded to any existing owned land or adjacent lands.

(f)

Crematoria in existence on the effective date of this subsection are declared to be nonconforming. Such crematoria shall not be required to obtain a conditional use permit so long as the use is not expanded, changed, abandoned or discontinued as provided in this section.

(Code 1961, Ch. 43, § 5-101(c); Ord. No. 15,438, § 1, 2-16-88; Ord. No. 16,116, § 1(c), 11-19-91; Ord. No. 16,341, § 1(t), 1-19-93; Ord. No. 16,441, § 4, 7-6-93; Ord. No. 16,861, § 1(h), 3-21-95; Ord. No. 20,255, § 2, 4-20-10; Ord. No. 20,288, §§ 2, 3, 7-6-10)

(a)

Repair or alterations. Any nonconforming structure may be maintained, repaired or altered; provided, however, that no such maintenance, repair or alteration shall create an additional nonconformity, increase the degree of the existing nonconformity of all or any part of such structure or increase the intensity of the use of the structure.

(b)

Damage or destruction. In the event that any structure that is devoted in whole or in part to a nonconforming use is destroyed by fire, explosion or other casualty, or the public enemy, to the extent of more than fifty (50) percent of the current replacement value immediately prior to such damage, such structure shall not be restored unless such structure and use thereof shall thereafter conform to all regulations of the zoning district in which such structure and use are located. When such damage or destruction is fifty (50) percent or less of the reasonable replacement value of the structure immediately prior to such damage, such structure may be repaired and reconstructed and used for the same purposes as it was before the damage or destruction; provided that such repair or reconstruction is commenced and completed within twelve (12) months of the date of such damage or destruction.

Structures which were developed prior to the passage of this chapter that complied with the then-existing standards for development and which now have been rendered substandard by these new regulations shall be termed "preexisting conforming structures" and, in the event of damage or destruction, may be allowed to build back to their original placement.

(c)

Relocation. No nonconforming structure shall be relocated in whole or in part to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which such structure is located after being relocated.

[(d)

Reserved.]

(e)

[Car washes.] For purposes of this section, the use "car wash" shall be treated as follows: Those car washes in operation as principal uses on November 1, 1988 and are conforming uses within the "C-2" shopping center district and "C-3" general commercial district, shall not be deemed to require a conditional use permit for reconstruction if damaged by storm or fire to any degree.

These car washes shall be treated as if appropriate conditional use permits have been issued except in the event of a building expansion which shall require planning commission approval.

(Code 1961, Ch. 43, § 5-101(d); Ord. No. 15,571, § 1k, 11-1-88; Ord. No. 20,288, § 4, 7-6-10)

Owners of lots that have been rendered unbuildable by the size and area provisions of this chapter may request, as a hardship variance, relief from the strict application of this chapter. The property owner must show to the board of adjustment that the subject property is so restricted that the buildable area is not sufficient for reasonable construction. Platted lots or lots of record prior to the effective date of this chapter may be rezoned to a particular zoning classification even though the minimum lot width, depth and area requirements are not in conformance with the requested zoning district.

When an existing platted lot is reduced in size by dedication of right-of-way to allow the city to construct street or drainage improvements, a property owner may use an existing platted building line or existing building face, whichever creates the greater setback, to construct improvements. Where current zoning building setback requirements create a building line closer to the right-of-way than the existing structure or existing platted building line, this zoning building line may be used as the setback to construct improvements. This may be done as long as there is not a request for change in use to a more intense zoning classification.

If an application is made for rezoning, the applicant must submit a planned development unless agreeing to satisfy building setbacks and needed right-of-way to current city ordinance and master street plan standards. However, when property is vacant at the time of dedication or purchase, current subdivision building setback requirements will apply, unless an application to the planning commission or board of adjustment for a variance is approved. For accessory buildings, the provisions of subsection 36-156(a)(2)c. shall apply.

(Code 1961, Ch. 43, § 5-101(e); Ord. No. 18,324, § 1(w), 8-1-00; Ord. No. 20,288, § 5, 7-6-10)

(a)

Purpose. The purpose of this section is to establish certain conditional exceptions to various district standards.

Exceptions. The requirements of height and area in the zoning districts shall be subject to the following exceptions and regulation:

(1)

Height.

a.

In the thirty-five-foot and forty-five-foot height districts, public or semipublic buildings, hospitals, sanitariums or schools may be erected to a height not exceeding seventy-five (75) feet when each of its front, side and rear yards are increased an additional foot for each foot such buildings exceed thirty-five (35) and forty-five (45) feet respectively in height.

b.

One-family dwellings in the thirty-five-foot height districts may be increased in height by not more than ten (10) feet when two (2) side yards of not less than fifteen (15) feet each are provided. Such dwellings, however, shall not exceed three (3) stories in height.

c.

Any person desiring to erect church steeples, chimneys, or similar ornamental structures in excess of a height prescribed for the property according to the zoning classification shall be permitted to do so provided the structure does not exceed twice the height permitted in the classification.

d.

For purposes of structural height regulation applicability, section 36-201, titled "Television and radio towers," shall control all placement of towers and antenna associated with broadcasting or communication both public and private.

(2)

Area.

a.

Every part of a required yard, except as provided herein, shall be open from its lowest point to the sky unobstructed, except for the ordinary projection of sills, cornices, buttresses, ornamental features, and eaves, provided, however, that none of the above projections shall project into a minimum side yard more than thirty (30) inches. This shall be deemed to include chimneys or similar structural elements which are a permanent feature of a building. The planning director shall have specific authority to grant a variance from this provision provided the encroachment will not extend into a required yard setback more than ten (10) percent of the ordinance requirement.

For purposes of construction of ramps or other devices, within a required setback area, enabling access for the disabled, the following shall apply: Applications for building permits shall be reviewed by city staff. Staff shall assure that proposed construction meets standards set forth within the traffic code and does not impact access or visibility for adjoining property. Staff shall in all instances assure compliance with the Americans with Disabilities Act.

b.

All single- and two-family residences shall be separated from accessory structures by a distance of not less than six (6) feet.

c.

Accessory buildings or structures in the R-1 through R-4A districts shall not be located closer than sixty (60) feet to the front property line, fifteen (15) feet from a street side line and may not occupy more than thirty (30) percent of the required rear yard area. For purposes of double front lots, accessory buildings shall conform to front yard setback requirements on both streets. Accessory buildings or structures shall in all instances be subordinate to the principal structure on the lot and contain less gross floor area. Accessory dwellings shall not exceed the permitted land coverage allowed by the district regulations. Swimming pools and all appurtenant structures both above ground and below grade of adjacent yard area shall be construed to be accessory structures and conform to the standards of this section. The planning director may authorize the encroachment of structures into a required yard setback except when more than one (1) encroachment is proposed. The encroachment shall be limited to ten (10) percent.

d.

Accessory buildings or structures may be permitted in the C-1 through C-4 districts which are used exclusively as product or equipment storage shall not be located closer than forty (40) feet to the front property line or side street property line. They shall not occupy more than thirty (30) percent of the required rear yard setback, nor shall they be located closer than six (6) feet to a side property line. In no instance shall the accessory building floor area exceed that of the principal building.

e.

Satellite receiving dishes in office and commercial districts whether portable or permanently sited shall not be located on any lot between the principal structure and a street right-of-way line unless such location is approved by the board of zoning adjustment. For purposes of this provision, an interstate highway shall not be considered a local access street.

f.

Accessory buildings shall maintain at least a three-foot setback from any side or rear yard property line except where said rear yard abuts on a dedicated alley. No setback shall be required for an accessory building upon the alley.

g.

Where the developed lots in a block comprise forty (40) percent or more of the frontage of the said block and the buildings on those lots have an average variation in depth of not more than six (6) feet, the average of those depths on said lots shall be the standard depth for the balance of the block and provided further that in case of a subdivision having been approved by the planning commission and recorded with a front building line less than that required by this chapter, then the requirements of this chapter shall be waived and the recorded building line shall be accepted.

(Code 1961, Ch. 43, § 5-102; Ord. No. 15,247, § 1, 2-17-87; Ord. No. 15,553, § 1a, b, o, cc, dd, 9-20-88; Ord. No. 15,617, § 1, 1-3-89; Ord. No. 16,341, § 1(y), (gg), 1-19-93; Ord. No. 16,861, § 1(z), 3-21-95; Ord. No. 17,305, § 1(a), (b), 11-7-96; Ord. No. 18,228, § 3, 3-7-00; Ord. No. 18,324, § 1(rr), 8-1-00)