It is the purpose of this section to accomplish the following:

a)   recognize the existence of uses which were lawful when established but which no longer meet all ordinance requirements;

b)   discourage the enlargement, expansion, intensification or extension of any non-conforming use or any increase in the impact of a non-conforming use on adjacent properties;

c)   regulate the repair, replacement, restoration, and improvement of non-conforming uses to prevent and abate nuisances and to protect the public health, safety, or welfare; and

d)   encourage the elimination of non-conforming uses or reduce their impact on adjacent properties.

For the purposes of this section, the following terms and phrases have the meanings given to them.

a)   "Non-conformity" or "non-conforming use" means any land use, structure, physical form of land development, lot of record or sign that is not in full compliance with the regulations of this ordinance and either (1) was legally established before the effective date of the ordinance provision with which it does not comply, or (2) became non-conforming because of other governmental action, such as a court order or a taking by a governmental body under eminent domain or negotiated sale. A non-conformity or non-conforming use does not include a land use, structure, physical form of land development, lot of record, or sign that was allowed to deviate from this ordinance by an approved variance. A non-conformity or non-conforming use is one of two types of physical land development: a non-conforming land use or a non-conforming development.

b)   "Non-conforming land use" means an activity using land, buildings, structures, or any combination of these, for a purpose that is not currently allowed as a use in the zoning district in which it is located.

c)   "Non-conforming development" means a non-conformity other than a non-conforming land use that does not currently conform to an ordinance standard such as height, setback, or size.

d)   "Expansion," "enlargement," or "intensification" means any increase in a dimension, size, area, volume, or height, any increase in the area of use, any placement of a structure or part thereof where none existed before, any addition of a site feature such as a deck, patio, fence, driveway, parking area, or swimming pool, any improvement that would allow the land to be more intensely developed, any move of operations to a new location on the property, or any increase in intensity of use based on a review of the original nature, function or purpose of the non-conforming use, the hours of operation, traffic, parking, noise, exterior storage, signs, exterior lighting, types of operations, types of goods or services offered, odors, area of operation, number of employees, and other factors deemed relevant by the city.

e)   "Improvement" means making the non-conforming use better, more efficient, or more aesthetically pleasing, including any change that does not replicate what pre-existed, but does not include an expansion, enlargement, or intensification.

f)   "Replacement," "reconstruction," or "restoration" means construction that exactly matches pre-existing conditions.

(Amended by Ord. No. 2012-07, adopted June 25, 2012; Amended by Ord. No. 2010-11, adopted August 16, 2010)

A nonconforming use may be used and continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, only in compliance with the provisions of this section. The use must have been in compliance with all land use regulations at the time the non-conformity was created in order to be eligible for the benefits of being a non-conforming use.

a)   There may be no expansion, enlargement, or intensification, of any use or any site element of any non-conforming use except to make it a permitted use or except as otherwise provided in this subdivision. Normal building maintenance and repair are allowed. Expansion, enlargement or intensification of conforming aspects of a non-conforming development are excepted from this requirement. For example, if a structure has a non-conforming front setback, it may be expanded on the sides that do meet setback requirements as long as the expansion itself meets ordinance requirements.

b)   No non-conforming use may be resumed if normal operation of the use has been discontinued, or if a non-conforming building has been removed and not replaced, for a period of 12 or more months. Time will be calculated as beginning on the day following the last day in which the use was in normal operation and will run continuously thereafter. Following the expiration of 12 months, only uses that are permitted by this ordinance are allowed to be established.

c)   Full use of a non-conforming use may not be resumed if the amount of land or floor area dedicated to the use is lessened or if the intensity of the use is in any manner diminished for a period of 12 or more months. Time will be calculated as beginning on the day following the last day in which the non-conforming use was in full operation and will run continuously thereafter. Following the expiration of 12 months, the non-conforming use may be used only in the manner or to the extent used during the preceding 12 months. For the purposes of this section, intensity of use will be determined by a review of the original nature, function or purpose of the non-conforming use, the hours of operation, traffic, parking, noise, exterior storage, signs, exterior lighting, types of operations, types of goods or services offered, odors, area of operation, number of employees, and other factors deemed relevant by the city.

d)   Removal or destruction of a non-conforming use to the extent of more than 50 percent of its estimated market value, as indicated in the records of the county assessor at the time of damage, by fire or other peril, excluding land value and as determined by the city assessor, terminates the right to continue or replace any non-conforming use, except if a valid and complete building permit application has been submitted to the city within 180 days after the property was damaged.

e)   If replacement, reconstruction, or restoration of a legal non-conforming land use is allowed, it may occur without any land use approval from the city if the resulting use does not create any new adverse impacts on adjacent property and matches exactly the conditions that existed before the work was undertaken or before the use was damaged or destroyed. Work that would not meet this requirement and any work that would be an improvement to a non-conforming land use may not be undertaken unless a conditional use permit has been issued for the property. The city may impose conditions in a conditional use permit to protect the public health, safety, or welfare, and to mitigate any newly created impacts on adjacent property or water body.

f)   If replacement, reconstruction, or restoration of a legal non-conforming development is allowed, it may occur without any land use approval from the city if the resulting use does not create any new adverse impacts on adjacent property and matches exactly the conditions that existed before the work was undertaken or before the use was damaged or destroyed, except for internal improvements and improved materials used to replace roof surfaces, siding, windows, doors, and similar components. Work that would not meet this requirement or any other improvement to a non-conforming development may not be undertaken unless the appropriate approval required below has been granted for the property. The city may impose conditions in its approval to protect the public health, safety, or welfare, and to mitigate any newly created impacts on adjacent property or water body.

   1)   Work that brings a structure into compliance with building code requirements requires approval from the city planner. The city planner may choose, in his or her sole discretion, to require site plan approval instead of administrative approval.

   2)   All other improvements require site plan approval notwithstanding any other provision of this ordinance to the contrary.

g)   Work that constitutes an expansion of any non-conforming use may not be done without first obtaining a variance pursuant to section 300.07 or an expansion permit pursuant to subdivision 7 of this section.

   1)   A variance is required if the expansion will intrude into one or more setback areas beyond the distance of the existing structure or will exceed the height or size limitations in this section 300 by a distance or amount greater than the existing structure. Otherwise, an expansion permit is required. For example, if the building currently has a front setback of 25 feet when 30 feet is required, and the expansion would reduce the setback to 24 feet, then a variance is required. In contrast, if only a portion of the building has a front setback of 25 feet when 30 is required, and the expansion brings the rest of the building to the same setback of 25 feet, then an expansion permit is required rather than a variance.

   2)   An expansion permit is also required if:

       a.   the use occupies any space within a non-conforming area that was previously not occupied both vertically and horizontally. For example, an expansion permit would be required if a second floor area is expanded into the non-conforming setback over an existing non-conforming first floor even though the non-conformity of the first floor setback dimension stays the same or is reduced; or

      b.   the non-conforming aspect of a use is reduced but still does not comply with current ordinance standards.

h)   Notwithstanding the prohibitions contained in the foregoing paragraphs of this subdivision, if approved by the city council a non-conforming use may be changed to another non-conforming land use of less intensity if it is in the public interest. In all instances the applicant has the burden of proving that the proposed land use is less intense than the existing nonconforming land use

i)   If a non-conforming use is superseded or replaced by a permitted use, the non-conforming status of the premises and any rights which arise under the provisions of this section terminate.

j)   Notwithstanding the foregoing paragraphs of this subdivision, all non-conforming sexually-oriented businesses and sexually-oriented uses, as defined in section 300.33, subd. 3, which were made non-conforming by the zoning ordinance or an amendment to it must be discontinued no later than three years after the adoption of the provision creating the non-conformity.

k)   Notwithstanding the foregoing paragraphs, a non-conforming use or structure in a floodplain area may only be repaired, replaced, maintained, improved, or expanded to the extent that it would qualify for eligibility in the National Flood Insurance Program, would not increase flood damage potential or increase the degree of obstruction to flood flows in the floodway, and would comply with the provisions in section 300.24, subd. 14.

(Amended by Ord. No. 2010-11, adopted August 16, 2010; amended by Ord. No. 2009-12, adopted September 14, 2009)

A non-conforming sign that is an imminent danger to life or property or that may not be replaced under this ordinance must be removed immediately at the expense of the owner.

For a non-conforming utility pole that exists on the effective date of the ordinance, the pole and wires may be replaced in the event that it is damaged as the result of circumstances beyond the owner's control, but only if the height of the pre-existing pole and its lines are not exceeded and the voltage of the pre- existing wires is not increased. The height and voltage may be exceeded only if this is required by other governmental agencies or by applicable safety codes. In addition, the height may be exceeded temporarily if the owner does not have a conforming pole available, but only on the condition that a permanent replacement which does not exceed the pre-existing height is installed as soon as practical.

A lot or parcel of land that is non-conforming and that is not improved with a principal use is not entitled to be developed with a principal use if it has been in common ownership with adjacent land, including land that is across a street, or if it has been part of a larger parcel of land, at any time after adoption of the standard that causes the lot or land to be non-conforming.

a)    Application.

Application for a non-conforming use expansion permit must be made to the zoning administrator. The application must be on forms provided by the city and must be accompanied by the following:

   1)   a plat or map of the property which shows, at a minimum, all lot lines, existing and proposed structures, driveways and parking areas, significant topographical features and mature trees;

   2)   evidence of ownership or an interest in the property;

   3)   the fee required by section 710 of the code of city ordinances; and

   4)   such other information as may be required by the city.

b)    Public Hearing.

Upon receipt of a completed application, a date will be set for a public hearing before the planning commission. The public hearing will be held only after notice has been sent by mail to the owners of all properties situated wholly or partially within 400 feet, as reflected in the certified records of the Hennepin county auditor.

c)    Decisions.

   1)   An expansion permit for a non-conforming use may be granted, but is not mandated, when the applicant meets the burden of proving that:

      a.   the proposed expansion is a reasonable use of the property, considering such things as:

         1.   functional and aesthetic justifications for the expansion;

         2.   adequacy of off-street parking for the expansion;

         3.   absence of adverse off-site impacts from such things as traffic, noise, dust, odors, and parking; and

         4.   improvement to the appearance and stability of the property and neighborhood.

      b.   the circumstances justifying the expansion are unique to the property, are not caused by the landowner, are not solely for the landowner's convenience, and are not solely because of economic considerations; and

      c.   the expansion would not adversely affect or alter the essential character of the neighborhood.

   2)   The planning commission may grant an expansion permit only upon an affirmative vote of at least a majority of its full membership. The planning commission may impose conditions in granting an expansion permit to effect the intent of this ordinance and to protect adjacent properties. The planning commission must accompany its decision to deny an expansion permit with a statement of its findings and must serve a copy of its decision upon the applicant by mail. The planning commission action will be final action subject to the right of appeal, except if the expansion permit is an integral part of another land use application that requires city council action. In those circumstances, the planning commission action will be a recommendation to the city council, which may approve an expansion permit by an affirmative vote of at least a majority of the city council's full membership.

d)    Term of Expansion Permit.

An expansion permit granted by the city will run with the land and will be perpetual unless no building permit has been issued or substantial work performed on the project prior to December 31 of the year following the year of approval, in which case the permit will be null and void. The planning commission may extend the period for construction upon finding that the interest of the owners of neighboring properties will not be adversely affected by such extension. If the expansion permit is part of an approved site and building plan, extension of the time period for construction will be contingent upon a similar extension of the time period for the site and building plan by the planning commission as required by section 300.27 of this ordinance. Once the project is completed as approved, the expansion permit becomes perpetual.

e)    Specific Project.

An expansion permit is valid only for the project for which it was granted. Construction of any project must be in substantial compliance with the building plans and specifications reviewed and approved by the planning commission or city council.

f)    Appeals.

A person aggrieved by a decision of the planning commission regarding an expansion permit may appeal to the city council pursuant to section 300.04, subd. 6(a).

g)    Recording.

A certified copy of the expansion permit must be filed by the applicant with the Hennepin county recorder or the Hennepin county registrar of titles. The expansion permit must contain a legal description of the property affected.

h)    Violations.

A person who violates, fails to comply with or assists, directs or permits the violation of the terms or conditions of an expansion permit is guilty of a misdemeanor. A violation is a violation of the expansion permit and renders the permit null and void. A violation also constitutes a public nuisance that may be abated in accordance with the provisions of section 845.

(Amended by Ord. No. 2010-11, adopted August 16, 2010)

A person who wishes to take advantage of the rights granted to a legal non-conformity has the burden of proving the status as a legal non-conformity by clear and convincing evidence.

(Amended by Ord. No. 2007-27, adopted August 20, 2007; Amended by Ord. No. 2007-17, adopted May 7, 2007; Amended by Ord. No. 2004-34, adopted November 8, 2004)

a)   When a nonconforming structure in the shoreland district with less than 50 percent of the required setback from the water is destroyed by fire or other peril to greater than 50 percent of its estimated market value, as indicated in the records of the county assessor at the time of damage, the city may require the structure setback to be increased, if practicable and reasonable conditions are placed upon a zoning or building permit to mitigate created impacts on the adjacent property or water body.

b)   The following applies to lots in the shoreland district that were of record in the office of the county recorder on the date of adoption of applicable shoreland controls and that do not meet the requirements for lot size or lot width:

   1)    A nonconforming single lot of record located within the shoreland district may be allowed as a building site without variances from lot size requirements, if:

      a.    all structure setback distance requirements can be met;

      b.    the lot is connected to a public sewer; and

      c.    the impervious surface coverage does not exceed 25 percent of the lot.

   2)    In a group of two or more contiguous lots of record under common ownership, an individual lot must be considered as a separate parcel of land for the purpose of sale or development, if:

      a.    the lot is at least 66 percent of the dimensional standard for lot width and lot size for the shoreland classification consistent with Minnesota Rules, chapter 6120;

      b.    the lot is connected to a public sewer;

      c.   the impervious surface coverage does not exceed 25 percent of each lot; and

      d.    development of the lot is consistent with the comprehensive plan.

   3)    A lot subject to paragraph (2) that does not meet the requirements of paragraph (2) must be combined with the one or more contiguous lots so they equal one or more conforming lots as much as possible.

   4)    Notwithstanding paragraph (2), contiguous nonconforming lots of record in the shoreland district under common ownership must be able to be sold or purchased individually if each lot contained a habitable residential dwelling at the time the lots came under common ownership and the lots are connected to a public sewer.

   5)    In evaluating all variances, conditional use permits, other zoning permits, and building permit applications, the city must require the property owner to address, when appropriate, storm water runoff management, reducing impervious surfaces, increasing setback, restoration of wetlands, vegetative buffers, sewage treatment and water supply capabilities, and other conservation-designed actions.

   6)    A portion of a conforming lot may be separated from an existing parcel as long as the remainder of the existing parcel meets the lot size requirements of the zoning district for a new lot and the newly created parcel is combined with an adjacent parcel.

(Added by Ord. No. 2009-12, adopted September 14, 2009)