Upon adoption of this chapter some structures, lots, and uses that were previously established and maintained consistent with all applicable requirements of ordinances past may no longer comply with the regulations of the zoning district in which they are located. For this reason, this subchapter has been written to provide the rules, policies and regulations that apply to all legal nonconforming structures, lots, uses and other legal nonconforming situations. This subchapter may be referred to as the "grandfather" clause. If a structure, lot, or use was established legally under a previous ordinance, it is described as "grandfathered" (legal nonconforming). These regulations are intended to inform property owner(s) about the options for using and modifying nonconforming properties and to support the eventual elimination of all nonconforming structures, lots and uses rather than encourage their survival.

(Ord. 121410, passed 1-11-2011)

   (A)   Illegal nonconforming described. With the exception of structures, lots and uses established prior to 1979 when the town enacted land use controls, a structure, lot, or use that is nonconforming and that was established or constructed prior to the adoption of this chapter and without an approved improvement location permit or approval from the Board of Zoning Appeals or Plan Commission is considered illegal nonconforming. An illegal nonconforming situation shall be subject to actions and penalties allowed by this chapter and all other applicable ordinances, and shall be altered to be in compliance with all applicable standards and regulations of this chapter.

   (B)   Legal nonconforming described. Legal nonconforming situations differ from illegal nonconforming situations in that the reason for the noncompliance is caused by the enactment of a Zoning Ordinance or a change to the Zoning Ordinance (including amendments to the Official Zoning Map). The structure, lot or use has not changed, but due to the Zoning Ordinance enactment or change, the property no longer complies with the standards of the zoning district in which it is located. When this situation occurs, the property is deemed legal nonconforming or "grandfathered". Legal nonconforming structures, lots and uses, may continue in the manner and to the extent that they existed or were used at the time the change in the Zoning Ordinance was enacted, provided they are in compliance with this subchapter; however, should the legal nonconforming structure(s), lot(s), and/or use(s) be altered in any way, including but not limited to, the size or scope of the structures, lots, and/or use(s), such legal nonconforming status shall immediately terminate.

   (C)   Effect on past variances, special exceptions, or other approvals. Structures, lots and uses, and other property features that are nonconforming due to prior variance, special exception, or other approvals, shall not be subject to the provisions of this subchapter, but shall be considered conforming as long as they continue to comply with the terms, conditions, and scope of their initial approval; however, such nonconforming status shall terminate immediately if the structure(s), lot(s), and/or use(s) is modified in any manner or is abandoned for a period of six continuous months.

   (D)   Effect on repairs and maintenance. Work may be done for ordinary repairs or replacement of walls, heating, fixtures, wiring, plumbing, and the like provided that the nonconformities, such as setbacks, lot coverage, land use, and the like, are not increased.

   (E)   Effect on unsafe structures. Nothing in this subchapter shall be deemed to prevent the strengthening, repairing, or restoring to a safe condition of any structure that has been declared unsafe by the appropriate official.

(Ord. 121410, passed 1-11-2011; Ord. 010819, passed 2-12-2019)

   All lots legally established and recorded with the Hancock County Recorder prior to the effective date of this chapter, as amended from time to time, that no longer meet an applicable provision of this chapter, such as minimum area, width, or depth, shall be deemed legal nonconforming lots of record. Legal nonconforming lots of record may be built upon only if the proposed use is permitted and all development standards of the applicable zoning district, as prescribed by this chapter, are met.

(Ord. 121410, passed 1-11-2011)

   Any structure, such as a primary structure, accessory structure, fence, and the like, lawfully established prior to the effective date of this chapter, as amended from time to time, that no longer meets the development standards, such as setbacks, height, and the like, shall be deemed a legal nonconforming structure.

   (A)   Continuation of nonconforming structures. The continuation and modification of nonconforming structures shall be consistent with the following requirements.

      (1)   Increases in nonconformity. No legal nonconforming structure shall be enlarged or altered in a manner that increases its nonconformity without the approval of a variance by the Board of Zoning Appeals. Any structure may be altered to decrease its nonconformity.

      (2)   Intentional alterations. Any legal nonconforming structure that is intentionally altered, moved for any distance, or replaced shall comply with the regulations of the district in which it is located. Any legal nonconforming structure that is intentionally altered, moved for any distance, or replaced shall not have the discontinued legal nonconforming features resume.

      (3)   Accidental alterations. Legal nonconforming structures that are required to be altered or removed due to government action or damage from fire, flood, other natural disaster, or criminal act may be restored to their legal nonconforming condition. Such structures, if rebuilt or restored, shall be identical or smaller in volume, height, setback, scale, and all other aspects to that which was altered or removed.

   (B)   Effect on single-family residences in non-residential districts. A legal nonconforming single-family residence located in any non-residential zoning district may be expanded by up to 50% of the pre-expansion living area, one time in any five calendar year period provided the expansion is for the purpose of continuing the residential use of the property. For the purposes of administering and enforcing this chapter, compliance with this chapter shall only be required of the expanded portion of the residence. With respect to building setbacks, the minimum setbacks for the expanded portion of the residence shall be as established by the current zoning, unless a development standards variance is obtained from the Board of Zoning Appeals.

(Ord. 121410, passed 1-11-2011)

   Any site feature or improvement, such as landscaping, dumpster enclosures, parking space dimensions, and the like, lawfully established prior to the effective date of this chapter, as amended from time to time, that no longer meets the development standards shall be deemed a legal nonconforming site feature. The continuation and modification of nonconforming site features shall be consistent with the following requirements.

   (A)   Increases in nonconformity. No legal nonconforming site feature shall be altered, removed, or otherwise modified in a manner that increases the features nonconformity. Site features may be modified in a manner that maintains or lessens the extent of the nonconformity.

   (B)   Site modifications. If building expansions or other changes to the property occur that require corresponding site feature improvements, the affected features shall only be required to be modified to the extent necessary to accommodate the property changes. The required installation of new site features shall not require the entire site to be brought into compliance with this chapter. For example, parking lot landscaping would only be required for new portions of a parking lot that was required to be expanded due to a change in the use of the property, to the extent that the amount of landscaping in the pre-existing parking areas will be unaffected.

(Ord. 121410, passed 1-11-2011)

   Any lawful use of structures, land, or structures and land in combination established prior to the effective date of this chapter, as amended from time to time, that is no longer a permitted use in the district where it is located shall be deemed a legal nonconforming use. A legal nonconforming use may continue provided that it remains otherwise lawful, subject to the following conditions:

   (A)   Modification of structures. No existing structure devoted to a legal nonconforming use shall be enlarged, expanded, increased, extended, constructed, reconstructed, moved, or structurally altered except as to change the use of the structure to a use permitted in the district in which it is located, or as otherwise specified in this section.

   (B)   New structures. No new structure shall be constructed in connection with an existing legal nonconforming use of land.

   (C)   Expansion within structures. Any legal nonconforming use may be extended throughout any parts of an existing structure that were plainly arranged or designed for such use on or before the effective date of this chapter, as amended from time to time, but no such use shall be extended to occupy any land outside the structure.

   (D)   Expansion on the property. No legal nonconforming use of land shall be enlarged, increased, extended to occupy a greater area of land, or moved in whole or in part to any other portion of a lot that was occupied on or before the effective date of this chapter.

   (E)   Expansion of non-conforming residential use. A legal nonconforming single-family residence located in any commercial, industrial, or institutional zoning district may be expanded by up to 50% of the pre-expansion living area one time in any five calendar year period provided the expansion is for the purpose of continuing the residential use of the property. Required setbacks for the expansion shall be either those established by the zoning on the property, or those provided by the pre-expansion structure, whichever is less restrictive.

   (F)   Change of use (to another nonconforming use). If no structural alterations are made, it is possible to change a nonconforming use to another nonconforming use. Nonconforming uses may be changed to another nonconforming use (similar or dissimilar) with the approval of the Board of Zoning Appeals. In addition to the statutory criteria for acting on a development standards variance request, the Board may approve the change of use if it finds that the proposed use is equally or more appropriate to the district in which it is located than is the existing use. The Board shall consider development standards applicable to the proposed use established by this chapter and may make reasonable conditions pursuant to this chapter.

   (G)   Change in use (to a permitted use). When a legal nonconforming use is replaced by a permitted use, it shall thereafter comply with the regulations of the district in which it is located, and the legal nonconforming use may not be resumed.

   (H)   Discontinuation of use. If a legal nonconforming use is intentionally discontinued for six continuous months or longer, any subsequent use of such land, structure, or land and structure in combination shall comply to the provisions of this chapter, with the exception of uses that are required to be discontinued due to a governmental action that impedes access to the premises due to damage from fire, flood, other natural disaster. Such exempt uses, if restored, shall be identical in scale, lot coverage, and all other aspects to that which was discontinued.

   (I)   Nonconforming structures and land in combination. Where legal nonconforming use status applies to a structure and land in combination, an intentional removal or alteration of the structure, or its use, that establishes conformity shall also eliminate the legal nonconforming status of the land. Legal nonconforming uses located in structures specifically constructed or modified to suit only such uses are exempt from this provision and may be resumed if the structure has not been intentionally altered to serve other uses, used to house a permitted use, or used to house another nonconforming use with the approval of a special exception by the Board of Zoning Appeals as specified in this section.

(Ord. 121410, passed 1-11-2011)

   Any sign, lawfully established prior to the effective date of this chapter, as amended from time to time, that no longer meets the requirements of this chapter shall be deemed a legal nonconforming sign. For the purposes of this subchapter, a sign shall include the sign face and any supports, poles, frames, or other associated lighting, electrical, mechanical, and structural features. The continuation and modification of nonconforming signs shall be consistent with the following requirements:

   (A)   Increases in nonconformity. No legal nonconforming sign shall be enlarged or altered in terms of face area, height, or any other aspect that increases its nonconformity. For the purposes of administering and enforcing this chapter, a change in the sign faces message or content shall not be considered to increase the signs nonconformity.

   (B)   Intentional alterations. Any legal nonconforming sign that is intentionally altered, moved for any distance, or replaced shall comply with the regulations of the district in which it is located, and the discontinued legal nonconforming features may not be resumed.

   (C)   Accidental alterations. Legal nonconforming signs that are required to be altered or removed due to government action or damage resulting from fire, flood, other natural disaster, or a criminal act may be restored to their legal nonconforming condition. Such signs, if rebuilt or restored, shall be in compliance with the requirements of this chapter, or shall be identical in scale and all other aspects to that which was altered or removed.

   (D)   Sign faces and messages. The sign faces and/or message on a legal nonconforming sign may be altered, replaced, repainted, and repaired provided that the nonconformity of the sign is not increased, and that a static display is not converted to an electronic message board. Otherwise, nothing in this section shall be interpreted as requiring a sign to be brought into compliance with this chapter if it is changed only to the extent that the face area is changed, but not increased in size or altered in shape or made to be an electronic message board.

   (E)   Temporary signs. Any signs in existence at the time this chapter becomes effective that were previously permitted as temporary signs may only remain in use consistent with the requirements of this chapter. Any temporary signs that are no longer permitted shall be removed within 30 days of the effective date of this chapter. Any nonconforming temporary signs shall be considered to be in violation of this chapter and shall be subject to the provisions of §§ 154.225 through 154.228, Enforcement and Penalties.

(Ord. 121410, passed 1-11-2011)