New Buffalo City Zoning Code
ARTICLE 9
Nonconforming Lots, Buildings, Structures, and Uses
Section Z9-01 Intent.
Upon the adoption of this Ordinance or subsequent amendments, there may exist lots, structures, and uses of land which were lawful prior to the adoption of the Ordinance, or amendment thereto, but which are not in conformance with the provisions of this Ordinance, or amendment thereto. It is the intent of this Ordinance to permit these nonconforming lots, structures, and uses to continue, but not to encourage their prolonged existence. Because nonconforming lots, structures and uses, so long as they exist, prevent full realization of the goals and objectives of the Master Plan, the spirit of this Ordinance is to reduce, rather than increase, such nonconformance.
Section Z9-02 Nonconforming lots.
A.
Existing lot of record. In any zoning district where an existing lot of record which does not abut any lot or lots of record in the same ownership, fails to meet the requirements for minimum lot area, minimum lot width, or both, of the zoning district in which it is located, such lot may be used for the permitted uses of the zoning district, provided that all other dimensional requirements not involving lot area and/or lot width of the zoning district in which such lot is located are met.
B.
Abutting lots of record under single ownership. In any zoning district where two or more abutting lots of record in the same ownership and with frontage on the same street do not, when considered individually, meet the requirements for minimum lot area and/or minimum lot width of the zoning district in which the lots are located, such lots shall be combined to create one or more conforming or more conforming lots for the purposes of this Ordinance.
Section Z9-03 Nonconforming uses of land not involving buildings or structures.
A.
The lawful use of any land, not involving a building or structure, existing and lawful on the effective date of this Ordinance, or amendment thereto, may be continued, even though such use does not conform with the provisions of this Ordinance, or amendment thereto, subject to the following provisions:
1.
Enlargement. Except as permitted under Sections Z9-04 and Z9-05, no such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied on the effective date of this Ordinance, or amendment thereto.
2.
Relocation. Except as permitted under Sections Z9-04 and Z9-05, no such nonconforming use shall be moved in whole or in part to any other portion of the lot occupied by such use on the effective date of this Ordinance, or amendment thereto.
3.
Cessation. If any such nonconforming use of land ceases for any reason for a period of more than one year, any subsequent use of such land shall conform to the requirements of this Ordinance. A nonconforming use shall be determined to cease if one or more of the following conditions exists, and which shall be deemed to constitute an intent on the part of the property owner to cease and abandon the nonconforming use:
a.
Utilities, such as water, gas and electricity to the property, have been disconnected;
b.
The property, buildings, and grounds, have fallen into disrepair;
c.
Signs or other indications of the existence of the nonconforming use have been removed;
d.
Equipment or fixtures necessary for the operation of the nonconforming use have been removed;
e.
Other actions which in the opinion of the Zoning Administrator constitute an intention on the part of the property owner or lessee to abandon the nonconforming use.
Section Z9-04 Nonconforming structures.
A.
Structures which are existing and lawful on the effective date of this Ordinance, or amendment thereto, may be continued, even though such structure does not conform with the provisions of this Ordinance, or amendment thereto, subject to the following provisions:
1.
Enlargement/alteration. Except as provided for, no nonconforming structure may be enlarged or altered in a way which increases its nonconformity with the provisions of this Ordinance, unless authorized by the Board of Appeals, following a public hearing. In authorizing such enlargement or alteration, the Board of Appeals shall consider and document all of the following:
a.
The proposed enlargement or alteration will not change the essential character of the area;
b.
The proposed enlargement or alteration will not be contrary to the Master Plan;
c.
The proposed enlargement or alteration will not have adverse impact on adjoining property or the general welfare of the City, by reason of its nonconformity with the provisions of this Ordinance; and
d.
No reasonable and practical alternatives to achieving the desired enlargement or alteration exist in a manner which does not increase the degree of nonconformity of the structure with the provisions of this Ordinance.
2.
ZBA conditions pursuant to enlargement/alteration. In authorizing approval to enlarge or alter a nonconforming structure, the Board of Appeals may impose conditions including, but not limited to: additional site landscaping, site buffers, fencing, facade design requirements, additional on-premises parking, vehicular circulation modifications, signage, exterior lighting, and related building and site design modifications.
3.
Damage and reconstruction.
a.
Nonconforming structure. In the event that any nonconforming structure is damaged by fire, wind, accident, act of nature, or other such means or manner, to the extent that the cost of reconstruction or restoration is equal to or less than 1/2 of the value of such structure prior to the damaging occurrence, as determined by the most recent assessment of the market value of the structure, exclusive of the market value of land, such reconstruction or restoration shall be permitted by right, subject to the provisions of this Ordinance. Structures damaged in excess of 1/2 of the fair market value of such structure prior to the damaging occurrence, as determined by the most recent assessment, exclusive of the market value of land, shall only be reconstructed subject to compliance with underlying zoning district standards.
b.
Building permit required. The above reconstruction or restoration shall require the issuance of a building permit within one year of the occurrence of such damage.
c.
Secured building requirement. A damaged structure awaiting reconstruction or restoration shall be properly secured within 48 hours of the damaging occurrence to prevent trespass, vandalism, and injury to the public.
4.
Decrease of nonconformity and re-establishment. If a nonconforming structure is altered or modified so as to eliminate, remove, or lessen any or all of its nonconforming characteristics, then such nonconforming characteristics shall not be later re-established or increased.
Section Z9-05 Nonconforming use of structure.
A.
The lawful use of any structure existing and lawful on the effective date of this Ordinance, or amendment thereto, may be continued, even though such use does not conform with the provisions of this Ordinance, or amendment thereto, subject to the following provisions:
1.
Extending use within a structure. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the effective date of this Ordinance, or amendment thereto, but no such use shall be extended to occupy any portion of a building which was not manifestly arranged or designed for such use at the effective date of this Ordinance, or amendment thereto, nor shall such use be extended to occupy any land outside such building.
2.
Alteration of structure possessing a nonconforming use. No existing structure devoted to a nonconforming use shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.
3.
Reconstruction of structure occupied by a nonconforming use. If a structure which conforms with the provisions of this Ordinance, but which is occupied by a nonconforming use, is damaged by any means or in any manner to the extent that the cost of reconstruction or restoration exceeds 1/2 the value of such structure prior to the damaging occurrence, as determined by the most recent assessment of the market value of the structure, excluding the value of land, such structure may be reconstructed or restored only if its use conforms with the provisions of this Ordinance.
4.
Re-establishment of nonconforming use. If a nonconforming use of any structure is terminated and replaced by a permitted use, such nonconforming use shall not be later re-established.
5.
Abandonment. When a nonconforming use of a structure, or structure and land in combination, is discontinued or abandoned for one year, the structure, or structure and land in combination, shall not hereafter be used except in conformance with the regulations of the district in which it is located. A nonconforming use shall be determined to cease if one or more of the following conditions exists, and which shall be deemed to constitute an intent on the part of the property owner to cease and abandon the nonconforming use:
a.
Utilities, such as water, gas and electricity to the property, have been disconnected;
b.
The property, buildings, and grounds, have fallen into disrepair;
c.
Signs or other indications of the existence of the nonconforming use have been removed;
d.
Equipment or fixtures necessary for the operation of the nonconforming use have been removed;
e.
Other actions which in the opinion of the Zoning Administrator constitute an intention on the part of the property owner or lessee to abandon the nonconforming use.
6.
Removal of nonconforming use status after removal or destruction of building. Where nonconforming use status applies to a structure and land in combination, removal, or destruction of the structure shall eliminate the nonconforming use status of the land.
7.
Change in use (substitution).
a.
A nonconforming use of a structure may be changed to another nonconforming use, subject to prior approval of the Board of Appeals. The Board of Appeals may approve such change only if it complies with the following standards:
[1]
The proposed use does not increase the degree of nonconformity existing prior to such change of use. Pursuant to this standard, the proposed use shall not create, or result in, impacts which are considered more objectionable than the use to be replaced. Such impacts shall include, but are not limited to, increased traffic, truck deliveries, parking requirements, hours of operation, noise, vibration, odors, litter, outside storage, pedestrian movement, off-site drainage, and other factors.
[2]
No structural alteration of the existing structure will be required to accommodate the new use, unless the alteration will render the structure more conforming to the underlying zoning district standards.
b.
In approving a change in use, the Board of Appeals may require reasonable conditions to increase the degree of conformity. Such conditions shall include, but are not limited to, buffers, landscaping, on-premises parking, access controls, hours of operation, and other such conditions to bring about a greater degree of conformity.
Section Z9-06 Repairs and maintenance.
A.
Basic repairs and maintenance. On any structure devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring, mechanical equipment, or plumbing, to an extent not exceeding 20% of the current replacement value of the structure as based on the records of the City Assessor, provided that the structure is not enlarged, extended, moved or structurally altered.
B.
Safety improvements. Nothing in this Ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any official charged with protecting the public health.
Section Z9-07 Structures under construction.
Any structure on which actual construction was lawfully begun prior to the effective date of this Ordinance, or amendment thereto, but, which under this Ordinance, or amendment thereto, is classified as nonconforming, shall be considered existing and legally nonconforming pursuant to construction purposes and the intended use. Nothing in this Ordinance shall be deemed to require any change in the plans, construction, or use of such structure. Actual construction is defined to include the placing of construction materials in a permanent position and fastened in a permanent manner, except that where demolition or removal of an existing building has been substantially begun preparatory to reconstruction such demolition or removal shall be deemed actual construction.
Section Z9-08 Nonconforming short-term rental units.
A.
Nonconforming short-term rental units permitted. Short-term rental units that existed and were registered under Chapter 11 of the Code of Ordinances as of November 23, 2021, the effective date of the amendment creating this section, may be continued as nonconforming uses so long as they conform to the regulations provided herein.
B.
Regulations. Notwithstanding any other provision of this Ordinance, the following requirements must be satisfied:
1.
The ability to operate a nonconforming short-term rental unit is not impaired by the making of modifications, improvements, or repairs to the structure or land where the use is located. However, if the underlying residential use is nonconforming, the underlying use may be impaired by such activities as provided in Section Z9-04.
2.
The ability to operate a nonconforming short-term rental unit is not impaired by any transfer of ownership or control of the property, unless the right to continue operating a short-term rental unit is later deemed abandoned by the new owner as provided in Subsection B(3) below. New owners are responsible for obtaining renewal permits in accordance with the processes provided in Chapter 11 of the Code of Ordinances.
3.
A short-term rental unit shall be deemed abandoned if either of the following transpires:
a.
The short-term rental unit is not rented for one or more short-term rental terms within a period of 12 months. The failure to submit a short-term rental reservation summary for the unit, as required by Section 11-4 of the City Code, for a period of one year or more shall constitute conclusive evidence of abandonment pursuant to this subsection.
b.
The short-term rental permit for the property expires, terminates, or becomes invalid and a new permit or renewal permit is not obtained within the later of: i) 12 months from the expiration, termination, or invalidation; or ii) in cases where the permit has been revoked pursuant to Chapter 11 of the Code, six months from the date when the period of ineligibility expires.
4.
Notwithstanding Subsection B(3), the ability to operate a nonconforming short-term rental unit is not impaired by the demolition of the structure in which the use is located, so long as:
a.
There is a valid short-term rental permit in effect at the time of the demolition; and
b.
A short-term rental permit is obtained for the newly constructed dwelling on the property within 18 months of the date of the demolition permit.