(A)

Purpose and Intent.

(1)

It is the purpose and intent of this section to permit the continuation of those lots, structures, uses, characteristics of use or combinations thereof, which were lawful prior to the passage of this Code but which would be prohibited, regulated, or restricted under the terms of this Code or future amendments thereto. For purposes of this Code, a nonconforming lot, structure, use or characteristic of use is defined as a lot, structure, use, or combination thereof that does not comply with the use or site development standards of the zoning district in which the lot, structure, use or characteristic of use or combination thereof is located, but which was legally established and in existence before the effective date of this Code.

(2)

This section is designed to provide reasonable and equitable standards and guidelines for the control of nonconforming lots, structures, uses and characteristics of uses in the regulation of change of use, change in kind or quality of use, change in volume or intensity of use, change in location of use, change of ownership or tenancy of use, accessory or incidental uses to nonconforming lots, structures, uses, or characteristics of uses, enlargement of use, replacement of use, addition or expansion of facilities, new activities, products or services connected with the nonconforming lot, structure, or use, the alteration of a nonconforming structure, repair of a nonconforming structure, restoration of a nonconforming structure, and abandonment or discontinuance of a nonconforming structure, and abandonment or discontinuance of a nonconforming structure or use, or any combination thereof.

(3)

It is the further purpose and intent of this section to allow nonconforming lots, structures, uses, and characteristics of use and combinations thereof to continue, subject to specific conditions, in order not to interfere with the existing circumstances surrounding land development within the City of North Miami Beach prior to the effective date of this Code more than is necessary for the proper exercise of police powers relating to the general public welfare of the residents of the City of North Miami Beach.

(B)

Nonconforming Classifications. Within the zoning districts established by this Code, or amendments that may be later adopted to this Code, there may exist:

(1)

Nonconforming lots;

(2)

Nonconforming structures;

(3)

Nonconforming uses;

(4)

Nonconforming characteristics of use;

(5)

Combinations of nonconforming lots, nonconforming structures, nonconforming uses and nonconforming characteristics of use.

These nonconforming classifications are declared by this section to be incompatible with present permitted uses and all or part of the site development standards regulating permitted uses in the zoning district in which the nonconforming classifications are located and, therefore, are the proper subject regulation as provided for herein.

(C)

Scope. In order to avoid undue hardship, nothing in this section shall be deemed to require any change in the plans, construction or designated use of any structure on which actual construction was lawfully done prior to the effective date of adoption of this Code and upon which actual building construction has been carried on diligently.

For the purposes of this section, the term "actual construction" is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner according to approved plans for the specific improvement. Where excavation or demolition or removal of an existing structure has been substantially begun, preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction; provided, however, that work has been and shall be carried on diligently pursuant to a valid building permit.

(D)

Nonconforming Lots of Record. In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on a single lot, tract, or parcel of land of record at the effective date of adoption of this Code, notwithstanding limitations imposed by other provisions of this section.

Such lots must be in separate ownership and not be of continuous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area, width or depth, that are applicable in the zoning district in which the lot, parcel, or tract is located; provided, however, that required yard or area dimensions and requirements other than those site development standards applying to area, width, or depth shall conform to the regulations for the zoning district in which such lot is located.

If two (2) or more lots, or combinations of lots, or portions of lots with continuous frontage and single ownership are of record at the time of the passage of this Code, and if all or part of the lots do not meet the requirements established for lot areas, width or depth, the lands involved shall be considered to be an undivided parcel and no portion of such parcel shall be used or sold in a manner which diminishes the degree of compliance with established lot width, area and depth requirements.

(E)

Nonconforming Uses of Land. The lawful use of land existing at the time of the passage of this Code or an amendment thereto, although such use does not conform to provisions of this Code may be continued subject to the following limitations and restrictions:

(1)

Change in location of use: No nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption of this Code.

(2)

Change of ownership or tenancy: All rights and obligations associated with a nonconforming use of land run with the land and are not personal to the present owner or tenant of the nonconforming use of land and are not affected by a change in ownership or tenancy, except if abandoned.

(3)

Accessory uses: Uses, accessory to a nonconforming use, not in existence at the time of the effective date of adoption of this Code, are not permitted.

(4)

Change to a more restrictive category of use: A nonconforming use may be changed to a more restrictive category of nonconforming use if the resulting change reduces the degree of the nonconformity with applicable site development standards and use regulations. For the purpose of this section, a more restrictive category shall be a use or site development standard contained within a more restrictive zoning district.

(5)

Expansion or extension of use: No nonconforming use shall be enlarged, increased, expanded, extended or intensified beyond what existed at the time it became nonconforming.

(6)

Replacement of use: In the event that any existing nonconforming use as provided for in this article is destroyed by more than fifty (50%) percent of its assessed value at the time of destruction as determined by the official records of the Miami-Dade County Property Appraiser, such use shall not be replaced. The destruction may be by any means, including fire, flood, wind, explosion, act of God, or act of a public enemy. (Ord. No. 2002-22, 11/19/02)

If such nonconforming use is destroyed to a level less than fifty (50%) percent of its total assessed value at the time of destruction as determined by the official records of the Miami-Dade County Property Appraiser, it may be replaced, except that replacement can only occur in compliance with those building, plumbing, electrical, gas, fire, and other construction and safety related regulations in effect at the time of application for a permit to allow replacement. In no event shall the destroyed nonconforming use be replaced to a degree or level greater than the original use as to height, lot coverage, total floor area, bulk, or yard setback requirements. The Florida Building Code shall be used in the administration of this section. (Ord. No. 2002-22, 11/19/02)

(7)

Abandonment or discontinuance of use: The abandonment or discontinuance of a nonconforming use for a period of one hundred eighty (180) consecutive days, shall render the nonconforming use status of the specific nonconforming use null and void. In the factual determination of whether a nonconforming use has been abandoned or discontinued, the following factors shall be used, but not be limited to:

(a)

An intent to discontinue the nonconforming use through removal of stock in trade or removal of operating equipment.

(b)

Some overt act or failure to act which carries with it a sufficient implication that the owner neither claims nor retains any interest in the abandoned property as it stood before the abandonment has occurred. The mere renewal and maintenance of an active business tax receipt, without more, shall not constitute continuance of a nonconforming use.

(F)

Nonconforming Structures. Where a lawful structure exists at the effective date of adoption or amendment of this Code, and it could not be built under the terms of this Code by reason of restrictions on area, lot coverage, height, yards, location on the lot, or other site development standards concerning the structure, such structure, except as otherwise specifically provided, may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

Alteration, enlargement, or expansion of nonconforming structure: No such alteration, enlargement, or expansion of a nonconforming structure shall be permitted in a way which increases its noncompliance with present property development and use standards of the zoning district in which it is located, but any nonconforming structure or portion thereof may be altered to decrease its noncompliance with present site development and use standards of the zoning district in which it is located. Nothing herein shall prohibit the Director from ordering the compliance with all applicable Building Construction and Safety Related Codes.

(2)

Replacement, restoration and reconstruction of nonconforming structure: In the event that any existing nonconforming structure is destroyed by any means, including fire, flood, wind, explosion, act of God, or act of a public enemy by less than fifty (50%) percent of its total appraised value according to the latest records of the Miami-Dade County Property Appraiser, such structure shall be permitted to be replaced, restored, or reconstructed according to the site development standards in effect at the time of its original construction except that replacement, restoration and reconstruction can only occur in compliance with all applicable building, plumbing, electrical, gas, fire and other construction and safety related regulations in effect at the time of application for a permit to allow replacement, restoration, or reconstruction. In no event shall the destroyed nonconforming structure be replaced to a degree or level greater than the original structure as to height, lot coverage, floor area, yard setbacks or other applicable site development standards at the time of original construction.

(3)

Repairs and maintenance of nonconforming structures: Routine repairs and maintenance of nonconforming structures on fixtures, wiring or plumbing shall be permitted.

(4)

Change in location of nonconforming structure: Should any nonconforming structure be moved for any reason to any distance whatsoever from its original permitted location, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.

(5)

Accessory structures: Structures normally accessory or incidental to a permitted structure or use in the zoning district in which the nonconforming structure is located may be permitted as accessory structures to the nonconforming structure.

(6)

Abandonment or discontinuance of nonconforming structure: The abandonment or discontinuance of a nonconforming structure for a period of one hundred eighty (180) consecutive days, shall render the nonconforming structure status of the specific nonconforming structure null and void.

(G)

Nonconforming Characteristics of Use. Characteristics of use, such as but not limited to off-street parking, off-street loading, and landscaping requirements, shall be interpreted to be synonymous with a part of the nonconforming classification of uses and structures legally permitted and existing at the time of the passage of this Code or an amendment thereto, although such characteristics of use do not conform to the provisions of this Code.

(H)

Nonconforming Lots, Structures, Uses and Characteristics of Use in Combination. If, on the effective date of this original 1980 Zoning Code or the 1990 amendments thereto, a lot of record, structure, use or characteristics of use of land, in any combination thereof, exists that would not be permitted under the terms of this Code, but was lawful at the time of its original existence, that use may be continued unless otherwise deemed abandoned or terminated. However, the limitations outlined in subsections (E) and (F) above shall also apply to all nonconforming lots of record, structures, uses and characteristics of use.

(I)

Nonconforming Outdoor Uses. All primary and accessory outdoor uses which are nonconforming shall be discontinued within one (1) year of the final adoption of this Code.

(Ord. No. 2002-22, 11/19/02; Ord. No. 2011-10 § 2, 9/6/11)

The Director shall maintain a formal file of nonconforming uses and structures for purposes of assuring conformance with this article.