(A)

Within the districts established by these zoning regulations or amendments that may be later adopted, there may exist lots, buildings, structures, or uses which are lawful at the effective date of this chapter but which would be prohibited, regulated, or restricted under the terms of this chapter. It is the intent of this Section to permit those nonconformities to continue until they are removed either voluntarily or as required by subsection (B)(5), unsafe structures, or subsection (B)(8)(a), abandonment. It is further the intent that nonconformities shall not be expanded, enlarged upon, intensified, or extended, except as provided hereafter in this section. Furthermore, no expansion, enlargement, intensification extension of a nonconforming structure, building, lot of record, use, or Waiver thereof, shall be permitted which increases its nonconformance with present site development plan performance standards or district regulations, unless provided for in this section or section 158.132.

(B)

The following policies shall determine the management of nonconformities:

(1)

Nonconforming lots of record. A permitted or permissible building or structure may be erected, expanded or altered on any lot of record at the effective date of the ordinance from which this chapter derives or any legally created amendment thereto. The maximum density to the greatest extent possible, maximum lot coverage, building height and floor area shall conform to the district in which the lot is located, and shall be subject to the requirements below:

(a)

All nonconforming lots shall:

1.

Have a minimum required side yard setback of ten feet for each side yard or meet the minimum requirements within its respective district, whichever is less.

2.

Meet the required yards conforming to the minimums required for the district in which the lot is located.

(b)

Two or more nonconforming lots or combinations of lots shall be considered an undivided lot for the purposes of this chapter if:

1.

As of July 21, 1976, the lots were in continuous frontage in single ownership, of record in the appropriate county where located; and

2.

The lots are deficient in the requirements established for lot width or area.

(c)

Lot reduction.

1.

No lot or interest therein shall be transferred, conveyed, or sold as subdivided so as to create a new nonconforming lot, which avoids, circumvents or subverts any provision of this chapter or leaves remaining any lot in violation of the requirements of this chapter. No lot or portion of a lot required as a building site under this chapter shall be used as a portion of a lot required as a building site for another structure.

2.

No building permit shall be issued for any lot or parcel of land which has been conveyed, sold, or subdivided in violation of this section. Any transferee who acquires a lot in violation of this section, without knowledge of such violation, or any subsequent transferee, shall have the right to rescind and receive damages from the transferor who violates the provisions of this section.

(2)

Nonconforming buildings or structures. Where a building or structure exists lawfully that could not be built under this chapter or as it may be amended by reason of restrictions on lot area, lot coverage, height, yards, location on the lot, or requirements (other than use) concerning the structure, then the building or structure may be continued so long as it remains otherwise lawful; provided further, that:

(a)

The building or structure may not be altered or enlarged in any way which creates a new nonconformity or increases or enlarges an existing nonconformity; and

(b)

The building or structure may be altered or enlarged in any way which decreases an existing nonconformity or in any way which is otherwise conforming.

(3)

Nonconforming use. Where at the effective date of the ordinance codified in this chapter or any amendments thereto, lawful use of buildings or structures exists, the use may be continued subject to the provisions of this chapter. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such a use at the effective date of the ordinance codified in this chapter or any amendments thereto. Any nonconforming use which occupied a portion of a building not originally designed or intended for such a use shall not be extended to any other part of the building.

(4)

Repairs. Normal maintenance, repair and incidental alteration of a structure containing a nonconforming use is permitted, provided it does not extend the area or volume of space occupied by the nonconforming use. A building or other structure containing residential nonconforming uses may be altered in any way to improve interior livability; however, no structural alterations shall be made which would increase the number of dwelling units.

(5)

Unsafe structures. If a nonconforming structure or portion of structure or any structure containing a nonconforming use becomes unsafe or unlawful due to lack of repairs or maintenance and is declared by the planning and zoning official to be unsafe or unlawful by reason of its condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the provisions of this chapter; and its removal shall be deemed voluntary.

(6)

Off-street parking. Additional off-street parking may be permitted on other property in the immediate vicinity, subject to the provisions of section 158.100.

(7)

Change in nonconforming uses without structural alteration. If no structural alterations are made, a nonconforming use of a building or structure may be changed to another nonconforming use of a similar or higher (more restrictive) classification under the following conditions:

(a)

The change in use shall not intensify or enlarge the basic use of the building or premises by increasing the need for more parking facilities, by increasing vehicular or pedestrian traffic, by creating more noise, vibration, fire hazard, smoke, dust or fumes, by increasing hours of operation or number of employees, by increasing ground coverage or adversely impacting drainage, or otherwise result in a more intensive use of the building or premises, or change the basic character of the building or premises except to more nearly conform to the character of the zoning of the district in which the building or structure is located.

(b)

When a nonconforming use of all or any part of a building, structure or premises is changed to another nonconforming use of a more restricted character, the new use may not thereafter be changed to any nonconforming use.

(c)

When a nonconforming use of all or any part of a building, structure or premises has been changed to a conforming use, the conforming use shall not thereafter be changed to any nonconforming use.

(d)

No structural alterations shall be made to any building or structure occupied by a nonconforming use except as permitted in this Code.

(e)

The parking and landscape provisions of this chapter shall be met.

(8)

Termination of nonconforming uses and structures.

(a)

Abandonment. Except as set forth in subsections 158.132(A) and 158.082(A), providing for the reconstruction of legally nonconforming structures, buildings or uses, a nonconforming use not used for a period of one year or the change of use to a more restricted or conforming use for any period of time shall be considered an abandonment thereof and the nonconforming use shall not thereafter be revived.

(b)

Removal of nonconformance; extension of time to comply. A nonconforming building or structure not used or occupied in a lawful manner or vacant for a period of one year or more shall be considered an abandonment and the nonconforming building or structure shall be removed or made conforming. However, should the period of nonuse or vacancy be caused by legal restraints upon the owner, the owner may set forth such grounds in a petition to the town commission and serve such petition on the planning and zoning official. The time may be extended by the town commission for good cause shown. The town commission may require the applicant to decrease the nonconformity of the building or structure in one or more aspects of its nonconformity. The town commission may require the applicant to secure the buildings, structures, and/or property in a manner acceptable to the town to ensure the health, safety and welfare of the public.

(c)

Special extension for continuance. The town commission, by resolution, may grant a special extension for the continuance of an abandoned nonconforming building or structure for a period of time to be determined at a public hearing to provide for the removal of the nonconforming building or structure, or the making of the building or structure conforming, on or before the end of the period approved.

1.

The property owner shall have furnished the town with a good and sufficient surety bond or other security in an amount to be approved by the town commission, to require compliance with this Code and/or state building codes.

2.

The amount of the surety bond or security shall be established by the town commission at a quasi-judicial public hearing up to an amount of no more than 100 percent of the total value of the property, including structures and land. The value of the property, including structures and land, shall be determined based on the full assessed value prior to any exemptions assigned to said property, including structures and land, according to the most recent tax assessment records for the property.

3.

The purpose of such bond or security shall be for the town to utilize and draw on such amounts in circumstances where the property owner has failed to provide adequate building, structure, or site maintenance to ensure the health, safety and welfare of the public. In such circumstances, the town may elect to utilize such bond or security to bring said property into compliance with town or state building codes, which may include, but is not limited to, conditions related to structural demolition, debris removal, site stabilization, utility stabilization, environmental remediation, building maintenance, pest and rodent control, site security, pool maintenance, landscape maintenance, potential storm damage, fire, vagrancy, and vandalism.

4.

Nothing within this section shall prohibit the town from any actions deemed necessary by the building official relating to unsafe buildings or structures.

(9)

Pre-existing legal uses. Certain uses of land, designated as mixed use communities on the zoning map, that cannot be added under current regulations are legal because they lawfully existed on January 1, 2014, and are authorized as "pre-existing legal uses." "Pre-existing legal uses" may also be classified as nonconforming uses, but by virtue of their listing in article IV shall be afforded the privileges of permitted uses and may be reconstructed up to their pre-existing density in accordance with all applicable current regulations, but only on the specific parcels on which they are located. The abandonment and termination provisions in subsection (B)(8) do not apply to uses that qualify as "pre-existing legal uses."

(Ord. 2018-24, passed 4-1-19)

(A)

Intent. It is the intent of this section, subject to an applicant meeting all the criteria set forth below, to allow existing, legally nonconforming residential or tourism properties that exceed the current allowable density, to be rebuilt for the existing use and density in accordance with all existing zoning and building requirements. Existing developments that are legally nonconforming due to the current number of dwelling or tourism units, may be reconstructed to the same number of units, and the same type of principal use(s) in existence prior to the reconstruction. It is also the intent of this Section that noncompliant structures may be rebuilt to the same density and building cubic volume, allowing an increase of height of the structure to correspond with the increase in height required by the flood ordinance(s). In any redevelopment scenario, the overarching intent is to reduce or eliminate nonconformities with a preference that properties develop according to their zone district, especially gulf and pass waterfront yard setbacks, to the greatest extent possible, as set forth below. Three individual, and mutually exclusive, legal nonconforming density redevelopment options are provided below. These options may not be combined.

(B)

Option 1—Redevelopment of non-compliant structures. Legally nonconforming structures, buildings and uses may be reconstructed. Such reconstruction shall be limited to the same building cubic content, location, and number of units in existence prior to their removal, subject to compliance with the following conditions:

(1)

Compliance with town ordinances. To the greatest extent possible, such reconstruction shall comply with all codes and regulations of the town.

(2)

Prohibition on increase in extent of nonconformities. All such reconstruction shall not increase the extent of the prior existing nonconformities, except for height as addressed below or as a result of modifications approved by the planning and zoning board, and prior existing nonconformities shall be eliminated to the greatest extent possible.

(3)

Building cubic content. Owners of legally nonconforming structures shall be permitted to rebuild non-compliant structure(s) to the same building cubic content that existed prior to removal. Additional building volume created as a result of compliance with flood control laws shall not be included in determining building cubic content. Additional areas and volume created for elevators, stairs, landings, mechanical areas and walkways, which were not included in the former structure(s), shall not be included in building cubic content, provided that the addition of any of these elements does not create a greater nonconformity as to open space or required setback.

(4)

Unit area increase. So long as there is no increase in overall building cubic content, as determined by subsection (3) above, units within the structure(s) may be increased in cubic content only as a result of decreasing the number of units within the structure or diminishing the previously existing common areas within the non-compliant structure(s).

(5)

Time frame for obtaining site plan approval. To qualify for rights under this provision, any such reconstruction shall obtain site development plan approval prior to or within two years of the removal or abandonment of use. The planning and zoning board may, upon application received prior to the expiration of the two-year period, extend such time for demonstrated cause pursuant to the town's Code. A building permit shall be obtained within the timeframe conditioned at the time of site development plan approval. Notwithstanding the foregoing, the planning and zoning board may in its sole discretion unilaterally extend the date for site development plan approval up to an additional two years if, owing to circumstances such as a natural disaster, such extension is in the best interests of the town.

(6)

Demonstration of legal nonconformity. It is the burden of the applicant, with the assistance of all available town records, to establish, to the satisfaction of the town manager or designee, by clear and convincing evidence, through documentation, as applicable to the nonconformity proposing to be maintained, including, but not limited to, certification, photographs, diagrams, plans, affidavits, and permits, the actual uses, building cubic content, densities, and intensities legally existing prior to the disaster event or redevelopment, prior to seeking site development plan approval.

(7)

Nonconformities and the relaxation of certain controls. To minimize the need for individual variances or departure applications, prior to the approval of reconstruction site development plans, the planning and zoning board may, as part of the site development plan review process, relax or modify one or several of the controls listed in sections 158.038, 158.030, 158.095, 158.100, lot, yard and bulk regulations in article IV, 158.094 and 158.098 in conformance with this section. However, prior existing nonconformities shall be eliminated to the greatest extent possible. In considering such request, the planning and zoning board shall also consider the nature and character of development in the surrounding area, and the impact thereon, in determining whether, or the extent to which, these controls may be modified. Those controls which may be modified are listed below in order of importance, highest to lowest, such that the control with the highest importance is the control with the greatest need for reduction or elimination of any nonconformities (and least likely of relaxation or modification) and the control with lower importance has a lesser need for reduction or elimination (and more likely of relaxation or modification).

(a)

Required yards:

1.

Properties which were previously permitted to build within a gulf or pass waterfront yard, closer to the water than currently permitted, may continue to enjoy these lawfully existing rights without subsequent planning and zoning board approval, however those properties shall not be able to avail themselves of this Code section regarding reconstruction of nonconformities and shall comply in all respects with the codes in effect at the time of reconstruction. These properties may, alternatively, waive these previously granted rights and seek approval of the planning and zoning board for encroachments into the required gulf or pass waterfront yard, thus availing themselves of the provisions of this Code section. In accordance with the policies and procedures in this Code section, the planning and zoning board may approve encroachments into a waterfront yard up to the amount of the previously existing encroachment.

2.

The approval of a modification to the required gulf or pass waterfront yards shall never be less than 50 feet from the mean high-water line or erosion control line, whichever is most landward, unless the previous legal encroachment was less than 50 feet, in which case the modification may never be less than the previous encroachment. The burden to provide sufficient evidence as to why the modification is necessary and essential to the redevelopment of the site shall be upon the applicant.

3.

Street, rear, side, or waterfront yards, other than the gulf waterfront yard, may be modified to:

a.

Permit the reconstruction of existing structures that are nonconforming, with minor modifications to the required yards, in order to accommodate an increase in building cubic content, as permitted in subsection (B)(3) of this section;

b.

Permit the reconstruction of existing structures that are nonconforming with regard to a specific setback so long as the reconstruction will not further reduce the setback;

c.

Permit the construction of a handicapped access appurtenance to any reconstruction; or

d.

Allow for the placement of stairs or stair landing that provides access into a reconstructed dwelling unit.

e.

Buildings or structures that are non-compliant with the current street, rear, side or waterfront yards regulations, other than the gulf or pass waterfront yards, and can be proven to have been permitted prior to the adoption of such regulations shall be considered legally nonconforming. The street, rear, side or waterfront yards, other than the gulf or pass waterfront yards, may be modified to be reconstructed as it existed prior to the disaster event.

(b)

Open space:

1.

Modifications which reduce the open space requirement of the zoning code may be allowed when it:

a.

Accommodates modifications to the off-street parking requirements, and utilizes the subsection locating off-street parking at the ground floor level of a structure pursuant to subsections (e)(iii) and (iv) below ; or

b.

Accommodates other approved changes to the site as a result of the reconstruction.

2.

Reductions from the open space that existed prior to reconstruction shall be minimized to the greatest extent possible to allow for compliance with the town's flood control ordinance, but open space shall not be less than 20 percent of the lot area.

(c)

Building height:

1.

The overall height of a building, at the time of reconstruction, shall be measured from the minimum habitable floor elevation in accordance with the local flood control ordinance, or state mandated height, whichever is applicable. This shall not preclude the utilization of the ceiling of the ground floor parking garage from being utilized as the base measuring point for building height for a multifamily structure, as defined in section 158.144 (definition of "Building, Height of").

2.

The overall height of a building may be increased by a maximum of the additional elevation required to comply with subsection (c)(i) above.

(d)

Maximum building length, distance between buildings, and distance between buildings and driveways. These development criteria may be modified to allow reconstruction of existing nonconforming structures, but shall not be reduced in a manner that jeopardizes public safety.

(e)

Off-street parking spaces.

1.

In no instance shall the parking requirements be modified where the reconstruction involves the increase of density or intensity of use.

2.

Shelters for parking spaces that were previously unsheltered shall not be permitted unless the shelters meet the setback and land coverage requirements for the site.

3.

Where to the greatest extent possible, the ground floor area of the reconstructed building shall be utilized for off-street parking.

4.

Off-street parking modifications may include the number of spaces provided, minimum dimensions of the stalls, minimum aisle widths, and location of spaces within required yards, and be made to:

a.

Improve ingress and egress to the site;

b.

Eliminate or reduce the instances where conditions require that parked vehicles back out onto public/private streets; or

c.

Allow for the provision of handicapped-accessible parking spaces.

(8)

Site plan approval.

(a)

All applications for the rebuilding of nonconforming structures, buildings or uses shall be submitted for site development plan review in accordance with article III of this chapter.

(b)

Permitted uses without site development plan review, as listed in article IV, are not required to be processed under the site development plan review provisions of article III, but can instead be processed in accordance with section 150.31.

(c)

Permitted uses with site development plan review, which meet the provisions of section 158.026, may be exempted from site development plan submission requirements, in accordance with said section, and the administrative staff is hereby authorized to modify the controls as set forth herein.

(9)

The town commission, by emergency ordinance, may develop additional or alternative procedures for the swift processing of applications in cases where a state of emergency is declared; and, in addition, may expand the authority of the administrative staff to relax certain controls by the emergency ordinance. A status report, delineating activities undertaken by the administrative staff under the provisions of this section, shall be provided to the planning and zoning board on a monthly basis.

(10)

Decisions of the administrative staff, made relative to the provisions of this section, may be appealed by any person to the zoning board of adjustment, in accordance with the appeal procedures set forth in section 158.013. No provision herein, shall be construed to deny the reconstruction, continuance or improvement of legally nonconforming structures, buildings and uses, so long as the reconstruction, continuance or improvement is in accordance with this section.

(11)

The provisions relating to option 1 shall not be construed to prevent a mobile home owner or park owner from reconstructing such structures pursuant to an applicable statutory pre-emption.

(C)

Option 2—Nonconforming redevelopment in conformance with zone district requirements. Existing multifamily or tourism zoned properties that are legally nonconforming due to the current number of dwelling or tourism units exceeding the current allowable density, may be rebuilt for the existing use and density, provided the proposed redevelopment is in accordance with all of the criteria associated with the subject site's zoning and requirements of this Code. Such developments may be redeveloped to the same number of units, same type of principal use(s) in existence prior to the redevelopment, and may add additional cubic content, subject to compliance with the following conditions:

(1)

Intent. The purpose of option 2 is to accommodate redevelopment of existing legal nonconforming properties that could retain their existing nonconforming densities and uses but, through redevelopment of their properties, would achieve conformity with all applicable building heights and all other town codes, regulations and ordinances.

(2)

Building cubic content. Structures can be rebuilt to the same total building cubic content as before, which volume can also be increased to an extent consistent with subsection (C)(1). Owners may elect to reduce the number of nonconforming units in order to achieve compliance with option 2.

(3)

Time frame for obtaining site development plan approval. To qualify for rights under this provision, any such redevelopment shall obtain site development plan approval prior to or within two years of the removal or abandonment of use. The planning and zoning board may, upon application received prior to the expiration of the two-year period, extend such time for demonstrated cause pursuant to the town's Code. A building permit shall be obtained within the timeframe conditioned at the time of site development plan approval. Notwithstanding the foregoing, the planning and zoning board may in its sole discretion unilaterally extend the date for site development plan approval up to an additional two years if, owing to circumstances such as a natural disaster, such extension is in the best interests of the town.

(4)

Demonstration of legal nonconformity. It is the burden of the applicant to establish, with the assistance of all available town records, to the satisfaction of the town manager or designee, by clear and convincing evidence, the density proposed to be maintained, prior to seeking site development plan approval.

(5)

Site plan approval. All applications shall be submitted for site development plan review in accordance with article III of this chapter.

(D)

Option 3—Nonconforming redevelopment seeking modifications from zone district requirements. Existing properties that are legally nonconforming due to the current number of dwelling or tourism units exceeding the current allowable density, may also seek a zoning map amendment to the Conformance Overlay Redevelopment District (CORD) in accordance with article IV, division 6 of this Code. Such rezoning, if approved, allows for properties to be made conforming and provides for relaxation or modification of one or several of the controls as identified in the CORD.

(1)

Time frame for obtaining Conformance Overlay Redevelopment District (CORD) approval. To qualify for rights under this provision, any such redevelopment shall obtain CORD approval prior to or within two years of the removal or abandonment of use. The planning and zoning board may, upon application received prior to the expiration of the two-year period, extend such time for demonstrated cause pursuant to the town's Code. A building permit shall be obtained within the timeframe conditioned at the time of CORD approval. Notwithstanding the foregoing, the planning and zoning board may in its sole discretion unilaterally extend the date for CORD approval up to an additional two years if, owing to circumstances such as a natural disaster, such extension is in the best interests of the town.

(2)

Demonstration of legal nonconformity. It is the burden of the applicant to establish, with the assistance of all available town records, to the satisfaction of the town manager or designee, by clear and convincing evidence, through documentation, as applicable to the nonconformity proposing to be maintained, including, but not limited to, certification, photographs, diagrams, plans, affidavits, and permits, the actual uses, densities, and intensities legally existing prior to the disaster event or redevelopment, prior to seeking site development plan approval.

(Ord. 2018-24, passed 4-1-19)