The purpose of this section [article] is to regulate the continued existence of uses, lots, and structures lawfully established prior to the effective date of this ordinance or any amendment thereto which do not conform to the provisions of this ordinance. Further, it is the intent of this section to limit the continuation and expansion, and to encourage eventual replacement of nonconforming uses having potentially undesirable impacts on surrounding conforming uses. Nonconforming uses, structures and lots of record may continue in accordance with the provisions of this section.

(Ord. No. 11,443, 11-12-13)

(a)

Non-conforming uses.

(1)

Ordinary repair and maintenance. Normal maintenance and repair of non-conforming uses may be performed.

(2)

Exceptions for repairs by public order. Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any city official charged with protecting the public safety, upon order of such official. Repairs and alterations that restore a building to the same condition that existed prior to damage or deterioration, altering the building only in conformity with the provisions of this ordinance in such a manner that does not extend or increase an existing non-conformity.

(3)

a.

Extensions and additions. Extensions and enlargements of non-conforming uses are generally prohibited and may only be allowed in exceptional circumstances. This general prohibition is to prevent the enlargement of non-conforming uses by external additions to the structure in which non-conforming uses are located. The planning and zoning director may only permit extensions or enlargements of non-conforming uses provided the applicant for an extension or enlargement can demonstrate (i) that the extension or enlargement will not adversely affect adjacent conforming uses, the neighborhood, and the surrounding community, (ii) the extension, enlargement or addition is consistent with the non-conforming use, and (iii) the denial of the extension or enlargement will impose a unique hardship on the property owner. The decision of the planning and zoning director to grant or deny a request for extension or enlargement shall be final.

b.

Permission to re-establish or resume prior use.

1.

Notwithstanding the prohibition on re-establishment or resumption contained in subsection (a)(1) of this section, the property owner may apply to the planning and zoning director for permission to re-establish or resume a prior, non-conforming use.

2.

The planning and zoning director, or his/her designee, may grant such permission if the following conditions are met:

(i)

The non-conforming use has not been discontinued or abandoned for a period of more than five (5) years measured from the date of discontinuance;

(ii)

The re-established or resumed non-conforming use is identical to the prior, non-conforming use;

(iii)

The re-establishment or resumption of the non-conforming use will not have an adverse impact on the adjacent zoning district, neighborhood, or community and will not substantially or permanently injure the appropriate use of adjacent conforming properties;

(iv)

The re-establishment or resumption of the non-conforming use will benefit or enhance the adjacent zoning district, neighborhood, or community; and

(v)

The re-established or resumed non-conforming use will otherwise conform to all aspects of the ordinance and will be generally compatible in nature with the surrounding zoning district, neighborhood, and community.

3.

The denial of an application to re-establish or resume a non-conforming use under this section may be appealed to the board of adjustments. All appeals shall be filed in writing with the planning and zoning director within thirty (30) days of his/her decision, and shall include a written statement identifying the decision that is being appealed and including any reasons why the appeal should be granted. The board of adjustments shall apply the criteria in this subsection in reviewing the planning and zoning director's decision.

4.

The permission granted under this subsection does not render the use conforming. The resumed or re-established use will be deemed a non-conforming use that is subject to abandonment or discontinuance under subsection (a) of this section.

(4)

Change in use. A structure housing a non-conforming use may not be changed into any other use unless such use conforms to the provisions of this ordinance. However, a non-conforming use may be changed to another non-conforming use provided the change of use is less intense than the previous use, as determined by the planning and zoning director or his/her designee.

(5)

Termination.

a.

Abandonment or discontinuance.

1.

Where a non-conforming use is discontinued or abandoned for one (1) year or more, then such use may not be reestablished or resumed and any subsequent use must conform to the provisions of this ordinance.

2.

When the planning and zoning director or his/her designee has determined that the use has been discontinued, as per section 37-21 (definitions) of this ordinance, the burden of proof shall be on the property owner to prove that the use has not been discontinued or abandoned.

(6)

Damage or destruction. If a structure housing a non-conforming use is damaged or destroyed by fifty per cent (50%) or more of the fair market value of the structure, then the structure shall not be restored unless its use thereafter conforms to the provisions of this ordinance. When such damage is fifty per cent (50%) or less of the fair market value of the structure as it existed immediately prior to such damage, such structure may be repaired and reconstructed and used for the same purposes it was before the damage or destruction, provided that such repair or reconstruction is commenced and substantially completed within twelve (12) months of the date of such damage or destruction.

(b)

Non-conforming structures.

(1)

Ordinary repair and maintenance. Normal maintenance and repair of nonconforming structures shall be performed.

(2)

Relocation. A nonconforming structure, which is moved, shall thereafter conform to the regulations of the district in which it is located after such move.

(3)

Termination due to damage or destruction. A nonconforming structure, which is damaged or destroyed to the extent of fifty per cent (50%) or more of the fair market value of said structure, shall not be restored unless it conforms to the provisions of this ordinance.

(c)

Non-conforming lots of record. Notwithstanding any other provision of this ordinance, a non-conforming lot of record may be developed only if the proposed use is permitted within the zoning district and all development standards of the zoning district are met.

(d)

Non-conforming accessory uses and structures. No non-conforming accessory use or structure shall continue after the principal structure or use shall have ceased or terminated unless such structure or use shall thereafter conform to the provisions of the district in which it is located.

(Ord. No. 11,443, 11-12-13; Ord. No. 12,173, 5-23-23)