Louisville City Zoning Code
CHAPTER 1152
Nonconforming Uses
1152.01 PURPOSE.
It is the legislative intent of the City of Louisville to discourage the survival of nonconforming uses, to prevent their enlargement or expansion, and to prevent their establishment elsewhere in the same Zoning District. The purpose of this chapter is to provide for the continuation and termination of nonconforming uses, structures, and lots that do not conform to the existing zoning, but which were legally in existence or operation prior to the enactment of this UDO or amendments thereto.
1152.02 ESTABLISHMENT OF LEGAL NONCONFORMING USE STATUS.
(a) Continuance. The lawful use of any building or land existing at the effective date of this UDO or amendments thereto may be continued, although such use does not conform to the provisions of this Ordinance. The continued right to a nonconforming use attaches to the land and not to the owner. Such continuance is subject to the terms set forth in this Chapter.
(1) Certificate of nonconforming use required. A presumption that any nonconforming use is illegal is hereby established. The burden is on the landowner or land user to establish by a preponderance of the evidence that a pre-existing use was legal at the time it was established.
(2) Certificate of nonconforming use. The Planning Director is hereby authorized to issue Certificates of Nonconforming Use upon submission of evidence which establishes a legal pre-existing nonconforming use. The Planning Director may require a landowner or land user to submit a site plan in conformity with this UDO to demonstrate the extent of the requested nonconforming use as a condition of issuing a Nonconforming Use Certificate. A copy of each Certificate of Nonconforming Use shall be filed in the office of the Planning and Development Department.
(b) District Changes. Whenever the boundaries of a district are changed so as to transfer an area from one district to another of a different classification, within one year of the effective date of this rezoning, the Zoning Inspector shall issue a Certificate of Nonconforming Use to all owners of legal nonconforming use property, the use of which does not conform to the provisions of the use zone in which the property is located.
(c) Non-Existence of Nonconforming Status. Nonconforming use status will never have existed if the use was not a legal, substantial use of the property at the time the ordinance or amendment became effective. Examples of the non-existence of nonconforming status include the following:
(1) Where mere contemplation of a use, or the expenditure of less than ten (10) percent of total anticipated costs on preliminary work before a complete development permit application is submitted, or where a project does not substantially proceed past the planning stages within six months of the issuance of a development permit.
(2) Where multiple parcels are held in common ownership and a legal, nonconforming use is established on one or more parcels, the nonconformance will not extend to any parcel where the nonconforming use was not established.
(3) Where a portion of an individual parcel is established as a legal, nonconforming use, the nonconformance will not extend to the remaining portion where it is physically separated by a road or natural barrier. This provision shall not apply to lots within a nonconforming manufactured home park.
(4) Where a contemplated use is merely incidental or accessory to an established nonconforming use.
1152.03 TERMINATION OF A NONCONFORMING STATUS.
The right to a nonconforming use will terminate upon the following events:
(a) Voluntary Discontinuance or Abandonment. Whenever a nonconforming use has been discontinued for a period of six (6) months or more, a presumption of abandonment of the nonconforming use shall be established and any further use shall be in conformity with the provisions of this UDO. The individual or entity claiming the continuance of the nonconforming use then bears the burden of proving the use has been continuous by a preponderance of the evidence. For purposes of determining whether a right to continue a nonconforming situation is terminated, all of the nonconforming buildings, activities, and operations maintained on a lot are generally to be considered as a whole.
(b) Where a nonconforming use is changed to a more conforming use, the use shall not later be changed back to a less conforming use, as determined by the Planning Commission.
(c) Determination of Public Nuisance. If the planning commission or court of law finds that a particular nonconforming use constitutes an actual nuisance which immediately or directly affects public health, safety, morals, or general welfare.
(d) If a nonconforming building or structure is destroyed more than fifty (50) percent of the appraised valuation of the structure to be renovated. All costs resulting from such appraisal shall be incurred by the owner of such nonconforming lot.
1152.04 NONCONFORMING USE APPLICATIONS.
(a) Change from Nonconforming Status to Conforming Status. If the intended change in use is to a conforming use that is allowed in the district where the property is located, and if the proposed use complies with all of the development standards of this UDO applicable to that district, the change to the nonconforming use may be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this UDO is achieved, the property may not revert to nonconforming status.
(b) Nonconforming Use Change. A change from one nonconforming use to another shall require review and approval by the Planning Commission in accordance with Chapter 1137. The standards for review shall include whether the proposed modification of the use is a reasonable for the zoning district, determined by evaluation of each of the following factors:
(1) Whether the property cannot reasonably be developed for the use proposed without such deviations.
(2) Whether these deviations are necessitated by the size or shape of the nonconforming lot.
(3) Whether the proposed use is sufficiently similar to the former use.
(4) Whether the proposed use has no greater negative impact than the former use.
(5) Whether the proposed use is equally or more appropriate; and/or
(6) Whether the proposed use falls within the same category as another land use permitted or conditionally permitted in the zoning district.
(7) Whether the property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health or safety.
(c) If a modification to a nonconforming use is permitted, the Planning Commission may:
(1) Impose any restrictions designed to mitigate the negative impacts of the modification to the nonconforming use.
(2) Define with precision exactly which uses on a multi-use property are nonconforming.
1152.05 COMPLETION OF NONCONFORMING USE PLANS AND CONSTRUCTION.
Nothing contained in these regulations shall hinder the construction of a building or prohibit its use where construction has started before the effective date of these regulations, provided that foundations have been put in place before the effective date of these regulations and provided further that such building shall be completed within two years from the date of passage of these regulations.
1152.06 SUBSTANDARD LOTS AND MINIMUM SETBACK REQUIREMENTS.
This Section applies only to undeveloped nonconforming lots. A lot is undeveloped if it has no substantial structures upon it.
(a) Multiple, Adjacent, Nonconforming Lots. Prior to development of undeveloped, legal, nonconforming lots which adjoin and have continuous frontage with one or more other undeveloped lots held under the same ownership and where no substantial nonconforming use has been made of the property, such nonconforming lots shall be consolidated with other adjacent undeveloped lots to create conforming lots, except where such combination would be out of character with the way the neighborhood has previously been developed. Standards for variance from this requirement, even where such use has been long contemplated, shall consider whether a development permit has been issued, whether construction has been started within a reasonable time, or whether substantial expenditures of time, effort, or funds, or significant changes in position have occurred.
(b) Any legal, nonconforming lot not meeting the requirements of subsection (a), above, and being a lot of record or lot for which a land contract has been issued or any lot within an unrecorded allotment, of which at least one-half (1/2) of the lots are of record or have been sold on land contract prior to the effective date of these regulations, may be used for a single-family dwelling irrespective of the area, depth or width of such lot.
(c) Setback Requirements for Proposed Residential Use. When a legal, nonconforming lot is proposed as the site for the erection of a single family dwelling, in place of the specified dimensional requirements of the particular zoning district, the following minimum requirements shall apply:
(1) Minimum front yard depth. The minimum front yard depth may be modified in accordance with Section 1154.02(d).
(2) The width of the side yard of any such lot need not exceed ten (10) percent of the width of the lot; however, in no instance shall the minimum dimensions of the side yards be less than five (5) feet
(3) The depth of the rear yard need not exceed twenty (20) percent of the depth of the lot; however, in no instance shall the minimum dimensions of the rear yard be less than twenty (20) feet.
1152.07 MAINTENANCE, RESTORATION AND RECONSTRUCTION OF NONCONFORMING USES.
(a) Maintenance. Minor repairs to and routine maintenance of property where nonconformities exist are permitted and encouraged.
(b) Restoration and Reconstruction. Nothing in this Unified Development Ordinance shall prevent the reconstruction, repairing, rebuilding, and continued use of any legal nonconforming building or structure damaged by fire, collapse, explosion, or acts of God, subsequent to the date of this section as before such calamity, provided such work does not exceed fifty (50) percent of the County Auditor’s appraised valuation of the structure to be renovated (such costs may be estimated by the property owner’s insurance carrier or a cost estimate prepared by a certified appraiser within the past two (2) years). The “cost” of renovation, repair, or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of this subsection by failing to provide a reasonable valuation for labor or by doing such work incrementally over a lengthy period.
(c) Unsafe Structures. Nothing in this Unified Development Ordinance shall prevent the strengthening or restoring to a safe condition of any portion of a building or structure declared unsafe by a proper authority. Where appropriate, a building permit for such activities shall be required.
1152.08 EXTENSION OF NONCONFORMING USES.
(a) Displacement. A nonconforming use shall not be physically expanded or extended to displace a conforming use.
(b) Expansions, Extensions, or Enlargements.
(1) Expansions or extensions of nonconforming uses shall be limited to fifty-one (51) percent of the lot coverage of the structure or use at the time it became a legal, nonconforming use. An exception may be allowed by the Board of Zoning Appeals when the nonconformity advances a reasonable public purpose. For example, a legal, nonconforming restaurant may be expanded or extended when it is in the public interest to allow the facility to be enlarged to install public restrooms.
(2) If a structure is nonconforming due to a yard setback or height requirement, the structure may be expanded or extended provided it does not increase the nonconformity of the previously established setback requirement. For example, if a structure is nonconforming due to a front yard setback, the structure may be enlarged only to the extent that the previously established front yard setback is not further reduced.
1152.09 SUBSTITUTION OF NONCONFORMING USES.
(a) Change to Another Nonconforming Use. A nonconforming use may be changed to or replaced by another nonconforming use provided that the proposed nonconforming use is equally appropriate or in less conflict with character and use of the district than the existing nonconforming use as determined by the Planning Commission.
(b) Relocation. Should a nonconforming structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.