Mount Vernon City Zoning Code
CHAPTER 1115
Nonconformities
1115.01 PURPOSE.
Within the districts established by this code, some lots, uses of lands or structures, or combinations thereof may exist which were lawful prior to the effective date or amendment of this code, but that are prohibited, regulated, or restricted under the terms of this code. The legitimate interests of those who lawfully established these nonconformities, especially when dealing with a person's residence, are herein recognized by providing for the continuance of such uses, subject to regulations limiting their completion, restoration, reconstruction, extension, and/or substitution. Nevertheless, while it is the intent of this code that such nonconformities be allowed to continue until removed, they should not be encouraged to survive, unless otherwise allowed in this chapter or specifically addressed in this code. This chapter has the further purposes for nonconformities:
(a) To permit their continuance but control nonconformities so as to minimize any adverse effect on the adjoining properties and development;
(b) To regulate their maintenance and repair;
(c) To restrict their rebuilding if substantially destroyed;
(d) To require their permanent discontinuance if not operated for certain periods of time; and
(e) To require conformity if they are discontinued, and to bring about eventual conformity in accordance with the purpose of this code.
(Ord. 2024-032. Passed 7-22-24.)
1115.02 GENERAL PROVISIONS.
(a) Any structure, land, or use of land or a structure that existed at the time of the effective date of this code, that was legally established under a previous code amendment or versions, may be continued even if such use, building, structure, or use of land does not conform to the provisions of this code.
(b) For the purposes of this code, and any future amendments, any use, building, or structure that can be proven to have existed prior to January 1, 1990, is deemed to be legally established.
(c) Whenever any nonconformity has been changed so that the use, structure, or condition conforms to the requirements of this code, such use, structure, or condition shall no longer be defined as a nonconformity, nor shall the property or structure be returned to the former nonconformity.
(d) To avoid undue hardship, nothing in this code shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this code and upon which actual building construction has been carried on diligently. Actual use is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction, provided that the work shall be carried out diligently. See also Section 1101.10.
(e) An applicant for any development review procedure (e.g., zoning permit, conditional use, variance, etc.) that involves a nonconformity shall bear the burden of proof in demonstrating that the use, building, or structure, or combination thereof, is a legal nonconformity.
(f) The ZEO may, upon their own initiative, or shall upon the request of any owner, issue a zoning permit for any lot, structure, use of land, use of structure, or use of land and structure in combination, that certifies that the lot, structure or use is a valid nonconforming use. The permit shall specify the reason why the use is a nonconforming use, including a description of the extent and kind of use made of the property in question, the portion of the structure or land used for the nonconforming use, and the extent that dimensional requirements are nonconforming. The purpose of this section is to protect the owners of lands or structures that are or become nonconforming. No fee shall be charged for such a permit. One (1) copy of the permit shall be returned to the owner and one copy shall be retained by the ZEO, who shall maintain as a public record a file of all such permits.
(g) Passage of this code in no way legalizes any illegal uses existing at the time of its adoption.
(h) Existing Use Reclassified as a Conditional Use. In the event an existing use that was permitted by right at the time the use was established is thereafter reclassified as a conditional use in the applicable district due to a zoning text amendment, such use shall be considered to be an approved conditional use without any further action. However, any subsequent change to such use shall require review and approval in accordance with Section 1103.06. Such use, provided it is conditionally permitted in the applicable district, shall not be considered a nonconforming use.
(Ord. 2024-032. Passed 7-22-24.)
1115.03 NONCONFORMITIES AND VARIANCES.
(a) When a property owner or authorized agent is granted a variance for a nonconformity that addresses the nonconformity, the structure or lot shall no longer be considered nonconforming. In no case shall the resolved nonconformity be expanded or altered to create further nonconformities.
(b) If a property owner or authorized agent is granted a variance for a nonconformity that addresses some nonconformities but additional nonconformities continue, the structure or condition that remains a nonconformity shall still be subject to the provisions of this chapter.
(Ord. 2024-032. Passed 7-22-24.)
1115.04 NONCONFORMING USES.
Nonconformities are declared by this code to be incompatible with permitted uses in the districts in which such use is located. Where, at the time of adoption of this code, lawful uses of land, structures, or a combination thereof, exist that would not be permitted by the regulations of this code, the uses may be continued so long as they remain otherwise lawful and provided:
(a) No such nonconforming uses shall be enlarged or increased, constructed, reconstructed, nor extended to occupy a greater area of land or structure than was occupied at the effective date of this code.
(b) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this code, but no such use shall be extended to occupy any land outside such building.
(c) No such nonconforming use shall be moved, in whole or in part, to any portion of the lot or parcel other than that occupied by such uses at the effective date of adoption or amendment of this code.
(d) No additional structures shall be constructed on a lot with a nonconforming use unless such new structure complies with the requirements of this code and the applicable zoning district.
(e) Substitution of Nonconforming Uses.
(1) So long as no structural alterations are made, except as required by enforcement of other codes or ordinances, any nonconforming use may be changed to another nonconforming use of the same classification or of a less intensive classification if approved by the MPC as a conditional use. As part of the review, the MPC shall be required to find that the use proposed for substitution is equally appropriate or more appropriate to the district than the existing nonconforming use.
(2) In permitting such change, the MPC may require that additional conditions and safeguards be met, which requirements shall pertain as stipulated conditions to the approval of such change, and failure to meet such conditions shall be considered a punishable violation of this code.
(3) Whenever a nonconforming use has been changed to a less intensive use or becomes a conforming use, such use shall not thereafter be changed to a more intensive use. However, in any residential district, no change shall be authorized by the MPC to any use which is not a permitted or conditional use in any residential district.
(f) Termination of Nonconforming Uses.
(1) Termination of Use through Discontinuance.
A. When any nonconforming use is discontinued or abandoned for more than one year, any new use shall conform to the regulations of the district in which it is located, and the nonconforming use may not thereafter be resumed. The intent to continue a nonconforming use shall not be evidence of its continuance.
B. There may be cases when a structure, or structure and premises in combination, may not be converted to a conforming use because of the original floor plan and design (e.g., townhouses in a single-family residentially zoned area). In these cases, the MPC may determine that the nonconforming use may continue if the nonconforming use is the original use of the structure and/or premises if approved by the MPC as a conditional use (e.g., adaptive reuse of a pre-existing building). Appropriate safeguards, conditions and design standards may be required by the MPC so as to minimize the impact of such continuance on the surrounding area.
(2) Termination of Use by Damage or Destruction.
A. If a nonconforming residential use, in any district, is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot provided the structure and use meet the same size in height and footprint, as well as complying with the same setbacks as previously existed. Such reestablishment of the use shall require the issuance of a zoning permit, which must be issued within twelve (12) months of the damage or the use shall not be reestablished.
B. If any building containing a nonconforming use, other than a nonconforming residential use, is damaged, but not to an extent greater than fifty percent (50%) of the principal structure's reconstruction value, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage. Such reestablishment of the use shall require the issuance of a zoning permit, which must be issued within twelve (12) months of the damage or the use shall not be reestablished.
C. If any building containing a nonconforming use, other than a nonconforming residential use, is damaged beyond fifty percent (50%) of the principal structure's reconstruction value, such structure and use may only be reestablished in accordance with this code.
D. Determination of the reconstruction value shall be based on the market value of the property as established by the Knox County Auditor. (Ord. 2024-032. Passed 7-22-24.)
1115.05 NONCONFORMING STRUCTURES AND SITES.
A nonconforming structure or site may continue to be used or occupied by a use permitted in the applicable zoning district so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following provisions:
(a) Any nonconforming structure or site may be enlarged, maintained, repaired, or altered provided, however, no such enlargement, maintenance, repair or alteration shall either create an additional nonconformity or increase the degree of the existing nonconformity of all or any part of such structure or site, unless otherwise specified in this code.
(b) A nonconforming structure shall not be relocated in whole or in part to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the applicable zoning district after being relocated.
(c) The principal use of a nonconforming building may be changed to any other use permitted in the applicable zoning district as long as the new use complies with all regulations of this code specified for such use, except the regulations to which the building did not conform prior to the change in use.
(f) The governmental acquisition of a portion of a lot for a public purpose that results in reduction in a required yard or building setback below that required in the applicable zoning district shall not render a structure nonconforming.
(g) Damage or Destruction of a Nonconforming Structure Containing a Conforming Use.
(1) If a nonconforming structure is damaged or destroyed to any extent, it may be reconstructed within the footprint of the structure at the time of damage or destruction. In no case may the nonconformities be increased and in no case may the nonconforming structure be reconstructed across a right-of-way or lot line.
(2) If the owner voluntarily removes a nonconforming structure or reduces the nonconformity of a nonconforming structure that has not been damaged or destroyed, that owner shall not be permitted to rebuild the structure to the original height, size, or setback.
(Ord. 2024-032. Passed 7-22-24.)
1115.06 NONCONFORMING LOTS OF RECORD.
A lot of record which does not comply with lot area, lot width, or street frontage requirements of the district in which it is located on the effective date of this code or any amendment thereto which made it nonconforming, may be used as follows:
(a) If occupied by a building, such building may be maintained, repaired or altered. However, the building may not be enlarged in floor area unless the depth of front yard, total width of side yards, and the rear yard regulations are complied with.
(b) If vacant, the lot may be used provided that:
(1) No adjoining vacant lot is owned by the same owner on the effective date of this code;
(2) No adjoining vacant lot can be reasonably acquired to create a conforming lot; and
(3) All other regulations of this code, except the lot area and lot width regulations, shall be complied with.
(c) Variance of yard requirements, buffering, or screening shall be obtained only through action of the BZA in accordance with Section 1103.07.
(d) If two (2) or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this code and if all or part of the lots do not meet the requirements established for lot width, lot area, or street frontage, the lands involved shall be considered to be an undivided zoning lot for the purposes of this code, and no portion of such zoning lot shall be used or sold in a manner which diminishes compliance with lot width, street frontage, and lot area requirements established by this code, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this code.
(Ord. 2024-032. Passed 7-22-24.)
1115.07 REPAIR AND MAINTENANCE.
(a) If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any authorized official to be unsafe, or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.
(b) Nothing in this section 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 official charged with protecting the public safety, upon order of such official. Where appropriate, a building permit for such activities shall be required.
(Ord. 2024-032. Passed 7-22-24.)