O Fallon City Zoning Code
NON-CONFORMITIES AND
VESTED RIGHTS
§ 157.075 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
EFFECTIVE DATE OF THIS CHAPTER. For purposes of determining the existence of non-conformity, the EFFECTIVE DATE OF THIS CHAPTER shall be the effective date of the ordinance incorporated in this chapter or amendment creating the non-conformity.
NON-CONFORMING LOT. A lot lawfully existing on the effective date of this chapter (and not created for purposes of evading the restrictions of this chapter) that does not meet the minimum area requirement of the zoning district in which the lot is located.
NON-CONFORMING PROJECT. Any lawful structure, development or undertaking that is incomplete on the effective date of this chapter and would be inconsistent with one or more of the regulations applicable to the zoning district in which it is located if completed as proposed or planned.
NON-CONFORMING SIGN. A sign lawfully existing on the effective date of this chapter that does not conform to one or more of the regulations set forth in this subchapter.
NON-CONFORMING SITE IMPROVEMENT. An improvement required on a property by this chapter and which, on the effective date of this chapter, lawfully is absent on the property or lawfully does not fully comply with this chapter, including, but not limited to, parking areas, storm drainage facilities, sidewalks and landscaping.
NON-CONFORMING USE. A primary use of or structure on a property lawfully existing on the effective date of this chapter which is, in any manner, made unlawful by the regulations in this subchapter or any development, design or performance standards applicable to the zoning district in which the property is located. NON-CONFORMING USES shall not include ancillary uses that are not the primary use of the property or structure.
NON-CONFORMITY. A non-conforming lot, project, sign, site improvement or use as defined in this subchapter, or other condition lawfully existing on a property on the effective date of this chapter that does not fully comply with the requirements of this chapter.
(Prior Code, § 158.075) (Ord. 3399, passed 12-5-2005)
§ 157.076 CONTINUATION OF NON-CONFORMITIES.
Unless otherwise specifically provided in this subchapter and subject to the restrictions and qualifications set forth herein, non-conformities that were lawful on the effective date of this chapter may be continued. However, it is the intent of this subchapter that non-conformities are not to be expanded, and they should be abolished or reduced to conformity as quickly as the fair interest to the parties will permit. Non-conformities made unlawful by generally applicable public health, safety or welfare ordinances of the city, enacted in whole or in part pursuant to authority other than the city’s zoning authority, shall not be governed by this section and shall have no right of being continued unless otherwise provided by law.
(Prior Code, § 158.076) (Ord. 3399, passed 12-5-2005)
§ 157.077 EXTENSION OR ENLARGEMENT OF NON-CONFORMITIES.
(A) Prohibition on enlargement of non- conformity. Except as specifically provided in this section, no person may engage in an activity that causes or facilitates an increase in the extent or scope of a non-conformity, including, but not limited to, physical alteration of structures or the placement of new structures on open land if such activity results in:
(1) An increase in the total amount of space or building area devoted to a non-conforming use; or
(2) A greater non-conformity with respect to dimensional restrictions, such as setback requirements, height limitations or density requirements or other requirements, such as parking requirements.
(B) Prohibition on expansion of area of non-conformity. Except as otherwise provided in this section, a non-conformity may not be expanded to cover more land than was occupied by that non-conformity when it became non-conforming, or such reduced area to which the non-conformity may have been lawfully converted as provided herein.
(C) Prohibition on increase of intensity of non-conformity. The volume, intensity or frequency of use of the property, where a non-conformity exists, may not be increased and the equipment or processes used at a location where a non-conformity exists may not be changed if these or similar changes cause an increase in the degree of activity.
(Prior Code, § 158.077) (Ord. 3399, passed 12-5-2005)
§ 157.078 REPAIR, MAINTENANCE AND RESTORATION.
(A) Minor repairs. Minor repairs to and routine maintenance of structures and property, where non-conformities exist, are permitted. Work estimated to cost more than 10% of the structural value of the structure to be renovated shall be prohibited unless authorized by a special use permit for alteration of the non-conformity pursuant to § 157.084.
(B) Repair of unintended damage. If a structure located on a lot where a non-conformity exists is damaged by fire, explosion, an act of God or the public enemy, to an extent that the costs of repair or restoration would not exceed 50% of its structural value, then the damaged structure may be repaired or restored only in accordance with a written zoning authorization permit by the Director.
(C) Authorization required. Any repairs, renovation or restoration of a structure pursuant to divisions (A) and (B) above which requires the issuance of any permit under the city’s building codes, subdivision and development control ordinance or site plan approval process shall also require the prior issuance of a zoning authorization permit by the Director authorizing the repair or alteration. In support of the application for the permit, the applicant shall submit sufficient information as may be required to satisfy the Director that the cost of the proposed repairs, renovation or restoration will not exceed 50% of the value of the structure prior to the repair, renovation or restoration.
(Prior Code, § 158.078) (Ord. 3399, passed 12-5-2005)
§ 157.079 CHANGE OF NON-CONFORMING USE.
(A) Prohibition on change of use. A change in use of property where a non-conformity exists may not be made, except in accordance with this section.
(B) Change to permitted use. If the intended change in the non-conforming use is to a use that is a permitted use or a use subject to conditions in the zoning district in which the property is located, and all of the other requirements of this chapter applicable to that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this chapter is achieved, the non-conformity status is terminated.
(C) Change to permitted use where all chapter requirements not satisfied. If the intended change in the non-conforming use is to a permitted use or conditionally permitted use in the district where the property is located, but all of the requirements of this chapter applicable to that use cannot reasonably be complied with, then the change is allowed only if the Commission issues a special use permit for alteration of the non-conformity authorizing the change pursuant to § 157.084.
(Prior Code, § 158.079) (Ord. 3399, passed 12-5-2005)
§ 157.080 ABANDONMENT, DISCONTINUANCE OR REDUCTION OF NON-CONFORMITY.
(A) Effect of non-conforming use discontinuation. When a non-conforming use is discontinued for a consecutive period of 180 days or discontinued for any period of time without a present intention to reinstate the non-conforming use, the property involved may thereafter only be used for conforming uses.
(B) Effect of violation of this subchapter. A prohibited expansion of a non-conformity or other violation of the legal requirements of this subchapter shall constitute and abandonment of the right to continue the non-conformity.
(C) Effect of non-conformity discontinuance. If the primary use on property where a non-conformity, other than a non-conforming use, exists is discontinued for a consecutive period of 180 days or discontinued for any period of time without a present intention of resuming that activity, then the property may thereafter be used only in conformity with any of the regulations applicable to the preexisting use unless the Commission issues a special use permit for alteration of the non-conformity pursuant to § 157.084 to allow the property to be again used for this primary purpose without remedying the non-conforming situations.
(D) Effect of reducing intensity, scope or area of non-conformity. If a non-conformity is lawfully reduced in scope, area or intensity, but not discontinued or abandoned, no right shall exist to thereafter restore the original scope, area or intensity of the non-conformity.
(E) Determination for property as a whole. For purposes of determining whether a right to continue a non-conforming situation is lost pursuant to this section, all of the structures, activities and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one apartment in a non-conforming apartment building for 180 days shall not result in a loss of the right to rent the apartment or space thereafter so long as the apartment building as a whole is continuously maintained. But if a non-conforming use is maintained in conjunction with a conforming use, discontinuance of a non-conforming use for the required period shall terminate the right to maintain it thereafter.
(Prior Code, § 158.080) (Ord. 3399, passed 12-5-2005)
§ 157.081 NON-CONFORMING SIGNS.
(A) Compliance with this chapter. Non- conforming signs shall also be subject to the additional regulations established in this section.
(B) Prohibition on alteration of non-conforming signs. A non-conforming sign may not be enlarged, moved or replaced, nor may the face appearance be altered, nor illumination added, except to lawfully bring the sign into complete conformity with the provisions of this chapter or for maintenance authorized herein.
(C) Maintenance and repair.
(1) Subject to the other provisions of this section, non-conforming signs may be maintained and repaired so long as the cost of such work within any 12-month period does not exceed 50% of the value (tax value if listed for tax purposes) of such sign.
(2) No such work shall be done without the person proposing to do such work first submitting such information as may be required to satisfy the Director that the cost of such work would not exceed 50% of the value of the sign and receiving an authorization from the Director for such work.
(D) Abandonment of non-conforming sign. If a non-conforming sign other than a billboard is blank or advertises a business, service, commodity, accommodation, attraction or other enterprise or activity that has not been operated, offered or conducted for a continuous period of 12 months, the non-conforming sign aspect of that shall be deemed abandoned and shall be removed within 30 days after such abandonment by the sign owner, owner of the property where the sign is located or other person having control over such sign.
(E) Non-conforming billboard. If a non- conforming billboard remains blank for a continuous period of 12 months, that billboard shall be deemed abandoned and shall, within 30 days after such abandonment, be altered to comply with this and all applicable provisions of §§ 157.160 through 157.168 or be removed by the sign owner, owner of the property where the sign is located or other person having control over such sign.
(F) Definition. For purposes of this section, a sign is BLANK if:
(1) It advertises a business, service, commodity, accommodation, attraction or other enterprise or activity that is no longer operating or being offered or conducted;
(2) The advertising message it displays becomes illegible in whole or substantial part;
(3) The advertising copy paid for by a person other than the sign owner or promoting an interest other than the rental of the sign has been removed; or
(4) Failure to pay any applicable tax or license fee on any billboard shall also constitute abandonment requiring its removal.
(Prior Code, § 158.081) (Ord. 3399, passed 12-5-2005; Ord. 3569, passed 4-21-2008)
§ 157.082 UNDEVELOPED NON-CONFORMING LOTS.
(A) Definition. This section applies only to undeveloped non-conforming lots, which shall include all non-conforming lots that do not have a structure in excess of 600 square feet in floor area constructed for a main permitted use in the zoning district at the time of construction.
(B) Effect of non-conforming lot area. Except as provided herein, when a non-conforming lot can be used in conformity with all of the regulations applicable to the intended use; except that the lot is smaller than the required minimum lot area applicable to that zoning district, then the lot may be used as proposed just as if it were conforming. However, no use that requires a greater lot size than the established minimum lot size for a particular district is permissible on a non-conforming lot.
(C) Prohibition on grouping of non-conforming lots. Subject to the following sentence, if, on the effective date of this chapter, an undeveloped non-conforming lot adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, then neither the owner of the non-conforming lot, nor his or her successors in interest, may take advantage of the provisions of this section. This division (C) shall not apply to a non-conforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 500 feet of the lot are also non-conforming. The intent of this division (C) is to require non-conforming lots to be combined with other undeveloped lots to create conforming lots under the circumstances specified herein, but not to require such combination when that would be out of character with the existing neighborhood.
(Prior Code, § 158.082) (Ord. 3399, passed 12-5-2005)
§ 157.083 COMPLETION OF NON-CONFORMING PROJECTS; VESTED RIGHTS.
(A) Administrative permits. All permits issued by an administrative official or body, or legislative body acting in an administrative capacity, prior to the effective date of this chapter shall be valid until their expiration under the previously existing regulations. Applications for administrative permits submitted after the effective date of these regulations shall be reviewed and evaluated pursuant to the requirements of this chapter, except as further specified below.
(B) Completion of initiated projects. All non-conforming projects on which construction was lawfully commenced at least 30 days before the effective date of this chapter may be completed in accordance with the terms of their permits, so long as those permits were validly issued and remain unrevoked and unexpired, and a vested rights permit is obtained from the Director. If a development is designed to be completed in stages, this division (B) shall apply only to the particular phase under construction.
(C) Requirement to obtain vested right permit.
(1) Except as provided in divisions (A) and (B) above, all work on any non-conforming project shall cease on the effective date of this chapter, and all work on non-conforming projects may be continued only pursuant to a vested rights permit issued in accordance with this chapter by the City Council. The City Council shall approve a permit if it finds that the applicant has proven:
(a) It has in good faith made unrecoverable substantial expenditures or incurred substantial binding obligations;
(b) The applicant otherwise has changed position in some substantial way in reasonable reliance on the regulations as they existed before the effective date of this chapter and thereby would be unreasonably prejudiced if not allowed to complete the project as proposed; or
(c) Is otherwise entitled to a vested rights permit as a matter of law.
(2) To the extent that a non-conforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a person shall not be considered prejudiced by having made the expenditures.
(D) Completion of phases. When a project was intended to be or reasonably could be completed in phases, stages, segments or other discrete units, the person shall be allowed to complete only those phases or segments with respect to which the person can make the showing required under division (B) above.
(E) Limitation on vested right permit applications. The City Council shall not consider any application for a vested rights permit authorized by division (B) above that is submitted more than 60 days after the effective date of this chapter. The Commission may waive this requirement for good cause shown, but, in no case, may it extend the application deadline beyond one year from the effective date of this chapter.
(Prior Code, § 158.083) (Ord. 3399, passed 12-5-2005)
§ 157.084 SPECIAL USE PERMIT AUTHORIZING ALTERATION OF THE NON-CONFORMITY.
(A) Whenever a special use permit is required by this subchapter to alter a non-conformity, such permit may be issued by the Commission subject to the provisions of this section.
(1) The intended change in use, alteration or repair of structure or property or continuation of non-conformity will not result in a violation of the purposes of the applicable provisions;
(2) All of the applicable requirements of this chapter are met to the extent reasonably possible; and
(3) The proposed use would be otherwise lawful.
(C) Compliance with a requirement of this chapter is not reasonably possible if compliance cannot be achieved without purchase of additional land to the lot where the non-conforming situation exists or without moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible. Further, in no case may an applicant be given permission, pursuant to this division (C), to construct a building or add to an existing building if in doing so additional non-conformities would be created. Nothing in this division (C) shall be interpreted to require the granting of a special use permit for a non-conformity authorized under this section where all requirements or standards are not determined to exist. Multiple contiguous lots in common ownership shall not be considered independent lots in determining a hardship. The permit shall specify which non-conformities need not be corrected.
(Prior Code, § 158.084) (Ord. 3399, passed 12-5-2005)