For purposes of this Code the terms "nonconforming use" and "noncomplying building or structure" are defined as follows:

A.

Nonconforming Use. A use of a building or structure or a tract of land which does not, on the effective date of this ordinance or amendment thereto, conform to any one of the current permitted uses or [of] the district in which it is located. Herein such nonconforming use may be referred to as a nonconformity.

B.

Noncomplying Building or Structure. Any building or other structure which is a lawful use (permitted or nonconforming) but which does not comply with all applicable provisions of this code, including size and dimension regulations, off-street parking requirements, landscape requirements, nuisance abatement standards, or height requirements either on the effective date of this ordinance or as a result of any subsequent amendment. Herein such noncomplying building or structure may be referred to as a noncompliance.

A.

This Article is intended to permit the continuation of those lots, structures, uses, characteristics of use, or combinations thereof, which were lawful before the passage of this code, but which would be prohibited, regulated, or restricted under the terms of this code or future amendments thereto. This Article is designed to provide reasonable and equitable standards and guidelines for the control and management of nonconforming uses and noncomplying buildings and structures, especially in regulating changes in the use or in the building or structure, including kind of [or] quality, volume or intensity, location, ownership or tenancy, accessory or incidental uses thereto, extension, enlargement, replacement, or any other change in characteristic.

B.

This Article is further intended to allow nonconforming uses and noncomplying buildings and structures and combinations thereof to continue subject to specific conditions in order not to interfere with the existing circumstances surrounding property development with [within] the Town prior to the effective date of the code more than is necessary for the proper exercise of police powers relating to the general public welfare of the citizens and residents of the Town of Malabar.

A.

Continuance of Nonconformance. A nonconforming use lawfully existing at the time of the enactment of this ordinance may be continued subject to the provisions of this code.

B.

Continuance of Noncompliance. The lawful use of a noncomplying building or structure may be continued subject to provisions of this code.

C.

Rules for Interpretation. Nothing in this code shall be interpreted as authorization for, or approval of, continuation of any illegal use of a building, structure, premises of [or] land, in violation of any ordinance in effect at the time of the passage of this ordinance. The casual, intermittent, temporary, or illegal use of land, building or structure shall not be sufficient to establish the existence of a nonconforming use. Any building or structure for which a lawful building permit was issued prior to the enactment of this ordinance, and construction of which is in conformity with approved site plans, if applicable, and building plans shall not be affected by this ordinance if the planned building or structure is built in full compliance with this code as it existed at the time of the issuance of the building permit. However, if such building or structure does not conform to the provisions of this code which cause such planned building, structure or use to be nonconforming or noncomplying, then it shall be nonconforming or noncomplying, or both, as the case may be, by applying this ordinance to the building, structure or use.

Where a lot has an area and/or frontage less than the required minimum for the district in which it is located and was recorded in the Town on the date such lot was zoned and rezoned to its current district classification said lot may be used for any use permitted in the district in which it is located, so long as the remaining provisions are complied with; provided, however, that in any residential district, the only use permitted on such nonconforming lot shall be one single-family dwelling. In all cases, any other zoning variances needed must be obtained from the Board of Adjustment, which may grant only the minimum variance necessary to the reasonable utilization of such lots, excepting lots platted prior to 7/1/76 shall be governed by Section 1-5.3 of this Code.

A nonconforming use shall not be extended, expanded, enlarged, or increased in intensity and [this] shall include without being limited to:

A.

Extension of a nonconforming use to any other building or other structure. Extension of a nonconforming use to any land area other than the specific land area that was actually and directly occupied by such use on the effective date of this ordinance (or on the effective date [of] subsequent amendment thereto that causes such use to become nonconforming).

B.

Extension of a nonconforming use within a building or other structure to any portion of floor area on the same or another floor that was not actually and directly occupied by such use on the effective date of this ordinance (or on the effective date of a subsequent amendment thereto that causes such use to become nonconforming). Notwithstanding, an existing nonconforming use may be extended within its existing structure if the extension does not require additional new floor area and such extension does not require additional parking spaces and the existing nonconforming use and the proposed extension comply with size and dimension regulations and other provisions of this Code. Landscaping requirements shall be satisfied to the extent that sufficient area is available on site.

C.

Operation of a nonconforming use in such manner as to conflict with any performance standards established for the district in which the use is located.

D.

Nothing contained in this Article shall in any way prohibit a nonconforming use from acquiring additional off-street parking area, subject to applicable landscape requirements.

E.

No additions which increase the area of a building or structure shall be made if the building or structure is occupied, in whole or in part, by a nonconforming use.

F.

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

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 [unless to change it 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 less restricted 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 Subsection 1-11.7(F) shall be met.

Where a lawful structure or use exists at the effective date of adoption or amendment of this Code, and it could not be built or used under the terms of this Code by reason of restrictions on area, lot coverage, height, yards, location on the lot, or other site development standards or requirements concerning the structure or use, it may be continued so long as it remains otherwise lawful, subject to the following provisions:

A.

Alteration, Extension, Enlargement or Expansion of Nonconforming Use or Noncomplying Building or Structure. No such alteration, extension, enlargement or expansion of a nonconforming use or noncomplying building or structure shall be permitted in a way which increases its nonconformance or noncompliance with present site development and use standards of the zoning district in which it is located, but any such structure or use or portion thereof may be altered to decrease its nonconformance or noncompliance with present site development and use standards of the zoning district in which it is located. Nothing in this subsection shall prohibit the Building Official from ordering the compliance with all other provisions of this code and applicable building construction and safety related codes.

B.

Replacement, Restoration and Reconstruction of Nonconforming Use or Noncomplying Building or Structure. In the event that any existing nonconforming structure or use, as provided for in this Section, is destroyed by any means, including fire, flood, wind, explosion, act of God, or act of a public enemy such structure or use shall be permitted to be replaced, restored, or reconstructed according to the site development in effect at the time of its original construction except that replacement, restoration and reconstruction can only occur in compliance with those building, plumbing, electrical, gas, fire, and other construction and safety related regulations of the Town of Malabar in effect at the time of application for a permit to allow replacement, restoration or reconstruction. Reasonable effort shall be undertaken to remedy any prior nonconformity or noncompliance. However, in no event shall the destroyed nonconforming structure or use be replaced to a degree or level which increases the prior existing nonconformity or noncompliance.

C.

Repairs and Maintenance of Nonconforming Use or Noncomplying Building or Structure. Routine repairs and maintenance of nonconforming structures or uses on fixtures, wiring, or plumbing or on the repair or replacement of walls shall be permitted.

D.

Change in Location of Nonconforming Use or Noncomplying Building or Structure. Should any nonconforming structure or use be moved for any reason to any distance whatever from its original permitted location, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.

E.

Accessory or Incidental Structures or Uses. Structures or uses normally accessory to or incidental to a permitted structure or permitted use in the zoning district in which the nonconforming use or noncomplying building or structure is located may be permitted as accessory structures to the nonconforming or noncomplying building or structure so long as a nonconformance or noncomplying building or structure is not intensified.

F.

Treatment of Off-Street Parking and Landscape Requirements. All changes in nonconformities or noncompliances shall satisfy the appropriate parking and landscape provisions cited below. Any required off-street parking and/or landscape improvements shall be managed through the off-street parking and landscape regulations of this code.

1.

If only parking is deficient at the time of the proposed change under the provisions of this code and the change does not require any additional parking space which would increase the then existing parking deficiency, the change is permitted, provided the then existing parking deficiency and its attendant landscaping are corrected to the extent sufficient land was available on the site on the effective date of this ordinance to accommodate some or all of the deficient off-street parking or to the extent land is available on site at the time of the proposed change of use, whichever land area is greater.

2.

If only landscaping is deficient at the time of the proposed change under the provisions of this code, and the change does not require additional parking space, the change is permitted, providing the then existing landscaping deficiency is corrected to the extent sufficient land was available on the site on the effective date of this ordinance to accommodate some or all of the then deficient landscaping or to the extent land is available on site at the time of the proposed change of use, whichever land area is greater.

3.

If the parking area is deficient at the time of the proposed change under the provisions of this code and the proposed change required any additional parking space over the then existing parking deficiency, the change is prohibited unless the net additional parking area and its attendant landscaping are provided and any deficiencies are corrected under the same criteria of Subsection 1-11.7(F)(1) above.

4.

If both parking and landscaping are deficient at the time of the proposed change under the provisions of this code and the change does not require any additional parking or any additional landscaping which would increase the need for parking or landscaping over the then existing deficiencies, the change is permitted provided the deficiencies are corrected to the extent sufficient land was available on the site on the effective date of this ordinance to accommodate some or all of the then deficient parking or landscaping, or to the extent land is available on the site at the time of the proposed change, whichever land area is greater.

If sufficient land was not available on the site on the effective date of this ordinance to allow correction of all of the parking and landscaping deficiencies and sufficient land is not then (at the time of the proposed change) available, priority for correcting the landscaping and parking deficiencies shall be determined on a case-by-case basis by the Building Official, the Town Engineer and the Chairman of the Planning and Zoning Board, if the change is a minor change in site plan or by the Planning and Zoning Board if the change requires full site plan review.

5.

If parking and landscaping are in compliance at the time of the proposed change under the provisions of this code and the proposed change does not render either the parking or landscaping deficient, the change is permitted. If the proposed change would render either the parking or landscaping, or both, to become deficient, and therefore noncomplying, the change is prohibited unless the required additional parking and landscaping are provided.

If a nonconforming use is removed or abandoned, or ceases for a continuous period of not less than ninety (90) days, every future use of the premises shall be in conformity with the use provisions of this Article. All material and equipment associated with the abandoned nonconforming use shall be completely removed from the premises by its owner within one (1) year after the expiration of the ninety (90) day period.

Where the cessation of the use is involuntary, the nonconforming use shall not be declared abandoned after the ninety (90) day period. However, if the use is discontinued voluntarily or involuntarily for a period of one year or more, every future use of the premises shall be in conformance with the use provisions of this Chapter [Code] and all material and equipment associated with the discontinued nonconforming use shall be removed from the premises by the owner.