A.   This chapter shall apply to the existing use of a building, structure or land lawfully established at the time of passage of the zoning ordinance, other land use ordinance, or any amendments thereto, which does not conform to the present regulations of the zone in which it is located. Because Ogden is a community that has developed over a long period of time, the regulations of this chapter are intended to allow continued use of such property or structure, while at the same time protecting existing conforming development and furthering orderly development and improvement of the community.

   B.   Nonconforming uses and noncomplying structures that are compatible and complement existing or planned development should be allowed to expand or improve. Improvement for better integration into the surroundings should be sought as much as possible.

   C.   Nonconforming uses or noncomplying structures that hinder the attainment of the General Plan, create a nuisance, or detract from or are a hazard to a community or neighborhood, should be eliminated or brought into compliance with the present provisions of this title to the extent allowable under the law.

(Ord. 2005-32, 5-24-2005)

A noncomplying structure, or what has previously been referred to as a nonconforming building, is any building or structure that legally existed before its current land use designation, and because of one or more subsequent changes to the zoning ordinance, or other land use ordinance, does not conform to the setback, height restrictions, or other regulations now governing the use of land, which regulations generally include yard regulations, lot coverage or landscaping requirements, parking regulations governing the location, design or number of parking stalls. Nonconformity as to regulations governing the use of land such as area or density requirements or parking requirements, established as a minimum requirement for the use of land in the applicable zone, shall render any structure located on the land to be both a noncomplying structure and a nonconforming use. For purposes of this chapter, an expansion to such structure where the use is otherwise allowed in the applicable zoning district shall be reviewed under subsection B of this section. If the use is not otherwise allowed in the applicable zoning district, the expansion shall be reviewed under subsection 15-6-3B of this chapter.

   A.   Ordinary Maintenance And Repair: A noncomplying structure may be maintained or repaired so long as such work does not increase the noncomplying or nonconforming conditions of the building or structure.

   B.   Addition Or Enlargement:

      1.   Authorization; Determination: A noncomplying structure shall not be added to or enlarged in any manner, unless the Director finds that such expansion is otherwise authorized under subsections B2 through B5 of this section, or except by issuance of a noncomplying structure permit by the Planning Commission. In reviewing a request to expand a noncomplying structure, the Planning Commission shall determine:

         a.   That granting the expansion will not adversely impact the attainment of the General Plan of the City;

         b.   That the expansion will improve the general appearance or safety of the area;

         c.   That by expanding the building, the character of the neighborhood is not adversely impacted;

         d.   That the expansion will improve the area by providing additional or adequate parking;

         e.   That any expansion will be adequately screened or buffered, if needed, so as not to increase impacts to the adjoining properties; and

         f.   That the expansion will not otherwise violate the standards established in subsections B2 through B5 of this section for any particular type of expansion.

      2.   Noncomplying As To Height: A main building noncomplying as to height regulations can be expanded provided the addition meets all required setbacks of the zone in which it is located and does not increase any other noncomplying or nonconforming status of the property on which it is located. If only a portion of the building is noncomplying as to height then the addition or expansion must meet the height regulations of the zone in which it is located. A noncomplying accessory building cannot be enlarged or expanded unless the addition or expansion complies with the height regulation and required setbacks of the zone and does not increase any other noncomplying or nonconforming status of the property on which it is located.

      3.   Noncomplying As To Setbacks Or Yard Regulations:

         a.   A main building noncomplying to front yard setbacks may be expanded and maintain the existing nonconforming front yard setback provided such expansion will not displace required parking or otherwise require a parking variance, or will not result in the removal of existing landscaping in the required front yard setback.

         b.   A residential main building with noncomplying side yard setbacks but having a minimum side yard of not less than three feet (3'), may be extended in depth along the nonconforming building line to a maximum of the depth of the existing dwelling if such extension is for the purpose of enlarging and maintaining the existing dwelling or required parking and provided, such enlargement does not increase any other nonconformity which may exist and conforms to all other regulations of the zone in which it is located.

         c.   A main building noncomplying to rear yard setbacks may be expanded provided the expansion does not increase the noncomplying rear yard setback and does not require any other variance.

      4.   Single Family; Expansion Of Parking: A single-family detached dwelling nonconforming as to the number of properly located off street parking spaces located on the lot may add additional spaces not to exceed the minimum required in accordance with the following standards:

         a.   Location And Design: If the lot has at least one properly located off street parking space, or if legal off street parking does not exist and cannot be developed, then one parking stall may be constructed in one required side yard; provided that:

            (1)   The parking area and its associated driveway shall be hard surfaced with the materials described in subsection 15-12-8G3 of this title;

            (2)   The parking area and driveway slab must be at least eight feet (8') wide and of sufficient length, which may not be less than eighteen feet (18'), to accommodate the vehicle with no portion of the vehicle extending forward of the front face of the dwelling;

            (3)   The space above any slab constructed within a side yard setback must remain open and unobstructed to the sky;

            (4)   All stormwater runoff from the hard surface of the slab must be directed so as to prevent drainage onto adjacent properties;

            (5)   No off street parking slab is permitted within the twenty foot (20') required side yard facing a street on a corner lot.

            (6)   Access to additional parking when one proper off street parking space exists shall be provided by either:

               (A)   Widening the drive approach from the street to match the width of the new driveway provided the other provisions of this Code can be met; or

               (B)   A driveway taper from the sidewalk at no less than a forty five degree (45°) angle with the remnant area in the front yard setback landscaped with a minimum of shrubs and an approved ground cover, provided that this option is not allowed if the remnant landscaped area is less than forty five (45) square feet or if curb, gutter and sidewalk are not present.

   OPTION A

   OPTION B

         b.   Front Yard Parking: A maximum of two (2) hard surfaced parking spaces may be added in the front yard setback, when all of the following standards and conditions are met:

            (1)   (A) No legal parking has existed on the property or the property has a garage/carriage house that may appear to provide legal parking, but is incapable of accommodating modern vehicles due to having original interior wall dimension space of twelve feet (12') or less in width, seven feet (7') or less in height, and a depth of less than twenty feet (20'); and

               (B)   There is no reasonable access to locate legal parking either in the side or rear yards;

            (2)   Front yard parking must remain open and unobstructed to the sky;

            (3)   No portion of a vehicle parked in the front yard shall extend beyond the front property line into the public right-of-way;

            (4)   Vehicle(s) parked in the front yard shall not exceed eight feet (8') in width, twenty feet (20') in length, and seven feet (7') in height;

            (5)   The front yard parking area and its associated driveway shall be a hard surface with the materials described in subsection 15-12-8G3 of this title;

            (6)   The front yard parking area shall have a minimum width of nine feet (9'); and

            (7)   Front yard driveways and parking areas installed after August 1, 2017, that are greater than nine feet (9') wide shall not exceed fifty percent (50%) of the width of the home fronting the public street or twenty feet (20'), whichever is less.

         c.   Nonconforming Or Noncomplying As To Lot Area:

            (1)   A single-family dwelling with inadequate lot area in a residentially zoned district shall be allowed to expand or construct on the lot provided that the construction will meet required setbacks or has received the needed setback variances.

            (2)   A single-family dwelling shall be allowed to be constructed on a vacant subdivided lot with inadequate lot area in a residentially zoned district provided that the construction will meet required setbacks or has received the needed setback variances.

            (3)   A multiple-family dwelling and associated buildings with inadequate lot area may expand the buildings or structure on the lot; provided, that:

               (A)   The construction will meet required setbacks or has received the needed setback variances; and

               (B)   The expansion will create covered parking in areas that are presently paved and used for parking.

            (4)   For purposes of subsection B4c(3) of this section, if a multiple-family dwelling is not otherwise allowed in the zone, the required setbacks shall be those applicable to single-family dwellings.

         d.   Reasonable Access: For purposes of subsection B4b(1) of this section, reasonable access is defined as either:

            (1)   Having at least eight feet (8') of clearance in the side yard setback on either side of the building without obstructions that cannot reasonably be avoided, such as utilities, window-wells, a direct elevation change of three feet (3') or greater, or retaining walls three feet (3') high or greater; or

            (2)   Having a right-of-way or alley adjacent to the property with established rights for access, where:

               (A)   The travel distance to the property line is less than one hundred feet (100') from an improved street and the right-of-way or alley has at least a minimum twelve foot (12') clearance that is, or could be paved; or

               (B)   The travel distance to the property line is more than one hundred feet (100') from an improved street and the right-of-way or alley has an existing minimum twelve foot (12') wide paved surface.

      5.   Expansion And Improvements In The M-1 And M-2 Zones: A noncomplying structure in the M-1 or M-2 zone may be expanded or improved up to fifty percent (50%) of its original floor area or improvement value provided the noncomplying items are corrected proportionally to the expansion to achieve complete compliance at fifty percent (50%) expansion or improvement. This includes:

         a.   Landscaping shall be brought into compliance proportionally to the proposed expansion or improvement. For example, if the proposal would expand the floor area by ten percent (10%), then at least twenty percent (20%) of the missing landscape area shall be installed.

         b.   Noncomplying accesses shall be brought into compliance proportionally to the proposed expansion or improvement. For example, if the proposal would improve an industrial building to add twenty-five percent (25%) to its improvement value and all the parking spaces back into the street, then fifty percent (50%) of the parking spaces shall be rearranged so as not to back into the street.

   C.   Damage Or Destruction:

      1.   A noncomplying structure that is involuntarily damaged or destroyed, in whole or in part, by fire, flood, wind, earthquake or other natural disaster or calamity may be restored or rebuilt; provided, that such restoration is started within a period of one year and is diligently pursued to completion and the noncompliance is not increased.

      2.   A noncomplying structure shall not be rebuilt or restored if:

         a.   The structure is allowed to deteriorate to a condition that the building is rendered uninhabitable and is not repaired or restored within six (6) months after written notice to the property owner that the structure is uninhabitable and that the right to rebuild or restore such noncomplying structure will be lost if the structure is not repaired or restored within six (6) months; or

         b.   The property owner has voluntarily demolished or removed a majority of the noncomplying structure.

(Ord. 2018-28, 10-16-2018; amd. Ord. 2023-57, 10-10-2023)

A nonconforming use is a use of land, including the use of any building or structure located thereon, that legally existed before its current land use designation, has been maintained continuously since the time the land use ordinance governing the land changed, and because of one or more subsequent changes to the zoning ordinance, or other land use ordinance, does not conform to the regulations that now govern the use of the land. Nonconformity as to regulations governing the use of land such as area or density requirements or parking requirements established as a minimum requirement for the use of land in the applicable zone shall render any structure located on the land to be both a noncomplying structure and a nonconforming use. For purposes of this chapter, an expansion to such structure where the use is otherwise allowed in the applicable zoning district shall be reviewed under subsection 15-6-2B of this chapter. If the use is not otherwise allowed in the applicable zoning district, the expansion shall be reviewed under subsection B of this section.

   A.   Right Of Use: Except as otherwise provided herein, a nonconforming use may be continued by the present or any future owner.

   B.   Expansion Of Use:

      1.   Building Or Structure:

         a.   A nonconforming use may be extended through the same building or structure provided no structural alteration of the building is proposed or made for the purpose of the expansion.

         b.   A building or structure nonconforming as to use regulations shall not be added to or enlarged in any manner if the expansion involves any structural alterations of the building unless the director finds that such expansion is otherwise authorized under subsection 15-6-2B of this chapter, or except by issuance of a nonconforming use permit by the planning commission. The planning commission shall find that:

            (1)   The expansion of the use would not adversely impact the surrounding properties;

            (2)   The proposed expansion is compatible with the surroundings;

            (3)   The site of the proposed expansion conforms to all site development requirements as much as physically possible given existing site limitations;

            (4)   The proposed expansion shall not create new nonconformities or conditions of noncompliance; and

            (5)   No expansion of a nonconforming use shall be allowed which would extend beyond the original lot or tract of land.

      2.   Land: The nonconforming use of land, not related to the nonconforming use of a building or structure, shall not be expanded or extended.

   C.   Change Of Nonconforming Use: The nonconforming use of a building or structure may not be changed to another nonconforming use, except by issuance of a nonconforming use permit by the planning commission. No change of use shall be permitted if the new use is more intensive than the existing use in its zoning classification and its nature or character. A use shall be considered to be more intensive in its zoning classification if it is not allowed as a permitted use either in the zone where the existing nonconforming use is first allowed as a permitted use or in a more restrictive zone. The planning commission shall find that the proposed change of use:

      1.   Would not adversely impact the surrounding properties more than the existing nonconforming use;

      2.   Would not intensify the use of the site or impacts to the neighborhood;

      3.   Would not change the character of the existing building or site unless the change would make the building or site more compatible with the surroundings and existing zoning; and

      4.   Any site development meets all site development requirements as much as physically possible, given existing site limitations.

   D.   Damage Or Destruction Which Affects Use: A building or structure which contains a nonconforming use and is involuntarily damaged or destroyed by fire, flood, wind, earthquake or other natural disaster or calamity may be restored or rebuilt and the occupancy or use of such building, structure or part thereof, which existed at the time of such destruction, may be continued or resumed; provided, that such restoration shall be started within a period of one year and diligently pursued to completion. In restoring such building or structure, the nonconforming use shall not be changed, enlarged or expanded except in accordance with the other provisions of this chapter and the following:

      1.   The reconstruction and reuse of the structure shall not change the character of the neighborhood by using construction materials that did not exist previously on the building; provided that other building materials may be approved by the director if the materials are determined to be compatible with the neighborhood and make the building or site more compatible with the surroundings;

      2.   The reconstruction shall not expand the floor area of the use, increase its intensity or expand accessory uses from what had previously existed; and

      3.   The new construction shall meet all site development requirements as much as physically possible, given existing site limitations and the existing development before damage occurred.

   E.   Signs; Permitted For Nonconforming Use:

      1.   Residential Zones:

         a.   A nonconforming use located in a residential zone is allowed one business sign of a maximum of sixteen (16) square feet.

         b.   A nonconforming use located in a residential zone fronting on an arterial street is allowed a maximum of two (2) square feet per linear foot of building frontage on the arterial. Sign types are limited to a maximum of two (2) of the following types: wall sign, monument sign, or awning sign. No single sign shall be larger than one hundred twenty (120) square feet and the total of all signage shall not exceed two hundred (200) square feet.

         c.   Any sign associated with a nonconforming use in a residential zone: may be lighted only by exterior lighting; if a freestanding or a monument sign, shall not be higher than six feet (6') and not closer than ten feet (10') to the property line if parallel to the street or twenty feet (20') if perpendicular to the street; and shall not extend above the roof or parapet wall if the sign is a wall sign.

      2.   All Other Zones: A nonconforming use located in any zone other than residential may have such signs as permitted in the outdoor sign code (title 18 of this code) for the zone in which the use is located.

   F.   Loss Of Right:

      1.   A nonconforming use of a building or structure shall be terminated if the building or structure in which the use is located is allowed to deteriorate to a condition that the structure is rendered uninhabitable and is not repaired or restored within six (6) months after written notice to the property owner that the structure is uninhabitable and that the nonconforming use shall be lost if the building or structure is not repaired or restored within six (6) months.

      2.   A nonconforming use of a building or structure shall be lost if the property owner voluntarily demolishes a majority of the building or structure that houses the nonconforming use.

      3.   The nonconforming use of a building, structure or tract of land that has been abandoned shall be terminated and the building or structure not occupied or used thereafter except in conformance with the present use regulations of the zone in which it is located. Any party claiming that a nonconforming use has been abandoned shall have the burden of establishing the abandonment.

      4.   A use shall be presumed to be abandoned if:

         a.   A majority of the primary structure associated with the nonconforming use has been voluntarily demolished;

         b.   The use has been discontinued for a continuous period of one year; or

         c.   The primary structure associated with the nonconforming use remains vacant for a continuous period of one year, excluding vacancies due to:

            (1)   Remodeling or renovation under a valid building permit, or

            (2)   Pending court actions which affect occupancy or possession of the property, i.e., probate, ownership disputes.

      5.   The property owner may rebut the presumption of abandonment under subsection F4 of this section and shall have the burden of establishing that any claimed abandonment has not in fact occurred.

      6.   The nonconforming status of a school district or charter school use or structure shall terminate when the property associated with the school district or charter school use or structure ceases to be used for school district or charter school purposes for a continuous period of one year. Such termination shall not prevent the reuse of such building or structure under the other provisions of this chapter.

   G.   Reuse Of Residential Structures:

      1.   If a right to use land nonconforming as to area or density requirements of residential uses is lost pursuant to subsection F of this section, the residential buildings shall not thereafter be occupied or used except:

         a.   In conformance with the area or density requirements of the respective zone; or

         b.   As otherwise provided in this section.

      2.   In a residential zone, the loss of right shall not prohibit the use of an existing residential building as a single-family dwelling.

      3.   In a zone other than a residential zone:

         a.   A single-family residential building described in subsection F.1 of this section, after the building is repaired or restored to a habitable state, may resume use as a nonconforming single-family dwelling.

         b.   A single-family residential building described in subsection F.3 of this section that has not been voluntarily demolished and remains in or is restored to a habitable state may resume use as a nonconforming single-family dwelling.

         c.   A single-family residential building that has been converted from a residential use to another permitted use may revert to use as a nonconforming single-family dwelling if:

            (1)   A majority of the building has not been voluntarily demolished;

            (2)   The site is improved so that no more than fifty percent (50%) of the required front yard setback area is covered by hard surface material, and the remaining required front yard setback area is landscaped in accordance with the requirements of Section 15-13-16;

            (3)   All signs and sign structures associated with the non-residential use are removed;

            (4)   There is no outdoor storage on the property, parking of vehicles is limited to those belonging to residents and guests on the property, and other areas are used solely for the residential use;

            (5)   The owner obtains a nonconforming use permit; and

            (6)   The owner obtains a building permit, if necessary, and improves the building as needed to allow occupancy as a single-family dwelling.

      4.   Notwithstanding any provision allowing for reuse of a building in this section or any other section of this title, a building for which an order of demolition has been issued in accordance with Title 16 may not be rehabilitated, repaired, restored or otherwise preserved except in conformance with the provisions of that title.

   H.   Reuse Of Nonresidential Structures:

      1.   Reuse of Commercial Style Building in a Residential Zone: Structures that were originally designed as commercial buildings located within a residential zone, including a dwelling on the same lot as the commercial building and traditionally associated with the commercial use, may take advantage of this provision in order to establish a reuse of the buildings. This provision applies to all residential zones and is intended to be used as a method of providing uses in buildings which were originally designed to house commercial uses or that have a commercial building as part of the parcel or lot.

         a.   Allowed Uses: If the use is not specifically listed below it is not permitted as a reuse option of the property and buildings.

            (1)   Services:

               Altering, pressing and repairing of wearing apparel.

               Business and professional offices.

               Dance rehearsal or instructional halls for the performing arts.

               Daycare centers or adult daycare facility, provided:

                  (A)   The facility shall conform to the occupancy requirements of the current building code, as adopted by Title 16, Chapter 2,, or its successor provisions, whenever more than six (6) persons are cared for; and

                  (B)   Child daycare centers shall include outdoor play areas with a minimum of seventy five (75) square feet of area for each child using the area at one time, and shall be completely enclosed.

                     (i)    Screening, planting or solid fencing around portions of playground areas adjoining residential dwelling uses is required if the planning commission determines it is necessary to minimize visual and noise impacts; and

                     (ii)    The planning commission may require that playground equipment be placed in a location which will minimize visual and noise impacts and prevent trespassing on adjacent properties.

               Hairdressers, barbershops, manicurists, tanning salons.

               Laundromat.

               Photo studio.

               Short-term rental, owner-occupied.

               Short-term rental, non-owner-occupied, provided it is not on the same linear block as another non-owner-occupied short-term rental, residential facility for persons with a disability or residential facility for elderly persons.

               Tailor.

               Travel agency.

            (2)   Sales:

               Antique, import or souvenir shop.

               Art and artist supply store.

               Automobile service station, provided it is in a structure originally built for service stations.

               Bookstore, retail.

               Camera store.

               Clothing and accessory store.

               Fabric and textile store.

               Florist shop.

               Garden supplies and plant material sales within the confines of the building.

               Gift store.

               Grocery store, including stores which may specialize in certain types of food products such as dairy, bakery or health foods.

               Ice cream parlor.

               Needlework, embroidery and knitting store.

               On-line sales.

               Pharmacy.

               Restaurant.

               Shoe store.

               Small distribution center or warehouse only when the building has existing overhead delivery doors designed for truck pull-in, provided that this use may not exceed fifty percent (50%) of the building floor area.

               Toy store, retail.

            (3)   Residential:

               Single-family dwelling.

         b.   Common Requirements For All Reuses:

            (1)   Because of the location of the commercial style building in the heart of the neighborhood, no expansion of the building is allowed on the lot nor is building expansion or parking allowed on adjacent lots.

            (2)   No use is allowed to install a drive-up window or pick up window. All transactions of exchange of merchandise must take place inside the building.

            (3)   Exterior wall materials may not be replaced with new materials that do not match the existing or original materials. No exterior alterations are permitted which alter the original character of the building.

            (4)   Before the new use can occupy the structure the building must meet all property maintenance and building codes applicable to the use. Existing areas of landscaping must be maintained whether on the property or in the public right of way.

            (5)   Any exterior service areas such as dumpster locations, delivery areas other than the front door, and garbage pick up areas shall be located out of the public view and in a location that is protected from visibility and smell by adjacent neighbors. No trash compacting devices may be located outside of the original building.

            (6)   Eighty percent (80%) of the area of ground level windows shall remain clear of posters, banners, or other materials or objects which block views through the window. Ordinary window coverings of the type of use permitted, such as curtains, drapes or blinds are excluded from this requirement.

            (7)   For all uses except restaurants and short-term rentals the hours of operation are limited to eight o’clock (8:00) A.M. to seven o’clock (7:00) P.M. Restaurant hours of operation are limited to six o’clock (6:00) A.M. to ten o’clock (10:00) P.M.

            (8)   With the exception of outdoor dining, all uses and storage must be contained inside the building.

            (9)   For warehouse use, deliveries are limited to regular business hours and delivery and pick-up vehicles exclude semi tractor-trailers.

         c.   Application: Application for the use permit may be filed by the owner of the property for which the use is sought or an authorized representative. If the reuse proposes no changes to the site, the building exterior other than normal maintenance, or the use of outdoor areas, the request shall be submitted to the development services counter for normal site plan review and approval. If changes are proposed to the site, or to the building exterior in seeking to restore the exterior to the original design, the approval request will be submitted for review by the planning commission.

         d.   Basis For Planning Commission Approval: The planning commission may approve the application for site or exterior revisions based on the following provisions:

            (1)   Landscaping: The planning commission may require whatever landscaping is necessary to integrate the building into the neighborhood, or to provide visual buffers for parking or outdoor uses on the site. Parkway strips shall be landscaped unless used for existing parking. In such instances, the planning commission shall determine the amount of parkway which needs to be landscaped.

            (2)   Parking: The property will be considered as having nonconforming parking rights and any of the listed permitted uses will be allowed without requiring additional parking. Any proposed new parking must meet the requirements for parking as listed in Chapter 12. However, the planning commission may approve a lesser amount if it finds that:

               (A)   A building occupies the entire site or the existing site limitations would restrict additional parking; and

               (B)   The reduction of such parking is not detrimental to the neighborhood.

            (3)   Building Exterior: When building exterior changes are proposed the planning commission shall determine if the changes alter the original or existing character of the building. If the changes bring the building back to its original design based on pictorial or physical evidence the revisions may be approved.

         e.   Signs:

            (1)   Except as provided in Subsection H.1.e.(3), signage shall be attached to the front face of the building and is limited to a maximum of forty (40) square feet.

            (2)   Signs shall not be internally or externally lighted unless the proposed use is located on Harrison or Washington Boulevard and the planning commission determines such lighting will be compatible with the surrounding neighborhood.

            (3)   The use may reuse existing sign structures that are:

               (A)   Sixty (60) square feet or less in size;

               (B)   No taller than the height of the building on the lot where the sign is located; and

               (C)   Not internally or externally lighted unless the sign is on Harrison or Washington Boulevard.

            (4)   Existing freestanding signage that does not meet the requirements of Subsection H.1.e.(3) shall be removed and has no nonconforming rights.

            (5)   Electronic message display signage is not allowed.

      2.   Reuse of a Permitted Nonresidential Building in Residential Zones: Buildings which were constructed in a residential zone but were intended for permitted nonresidential usage such as public or private schools, churches, fire stations, libraries, public buildings or recreational facilities may be reused either as a use permitted in the zone or by approval of a conditional use permit by the planning commission for one of the following uses:

         a.   Conditional Uses:

            Art galleries and museums.

            College or university extension, provided parking is provided at the rate of one space per teacher and staff member, plus one space per two (2) students of the largest attendance period.

            Community and senior citizen center.

            Community cultural activities, including theater and dance rehearsal or instructional halls for the performing arts and performing arts theaters.

            Daycare centers, provided:

               (1)   The facility shall conform to the occupancy requirements of the current building code, as adopted by Title 16, Chapter 2,, or its successor provisions, whenever more than six (6) children are cared for;

               (2)   Outdoor play areas shall be provided with a minimum of seventy five (75) square feet of area for each child using the area at one time, and shall be completely enclosed. The planning commission shall require screening, planting or solid fencing around portions of playground areas which adjoin residential dwelling uses if they determine it is necessary to minimize visual and noise impacts;

               (3)   The planning commission may require that playground equipment be placed in a location which will minimize visual and noise impacts and prevent trespassing on adjacent properties; and

               (4)   The hours of operation may be restricted to assure compatibility with surrounding neighborhood.

            Dwelling units at the density permitted by the underlying zone.

            Libraries, publicly operated.

            Maintenance caretaker residence.

            Nursing home.

            Personal service business.

            Private or educational institution, provided:

               (1)   Parking is provided at the rate of one space per teacher and staff member, plus one space per two (2) classrooms;

               (2)   Play areas shall be screened with a minimum six foot (6') high screening fence;

               (3)   The planning commission may require that playground equipment be placed in a location which will minimize visual and noise impacts and prevent trespassing on adjacent properties.

            Professional and business office.

            Professional, business or civic association hall; provided, that within thirty (30) days of the issuance of a conditional use permit, a neighborhood liaison committee shall have been established with representation from neighborhood property owners, to consider and make recommendations on complaints and concerns of neighbors, should they arise. The applicant shall submit a statement explaining the proposed makeup and operating procedures of this committee at the time of conditional use permit application.

            Public building.

            Retirement home, provided parking at 0.35 space per room, plus one space per employee on the highest shift.

            Trade and vocational schools, provided parking is provided at the rate of one space per three (3) students plus one space per employee at capacity class attendance.

         b.   Specific Development Standards: In reviewing the request, the development shall meet the following standards and procedures for application:

            (1)   Height limits of the underlying zone shall apply;

            (2)   No parking shall be permitted in the required front yard or the side yard on the side street or corner lots;

            (3)   Building usage shall be limited to the amount of available off street parking;

            (4)   Off street parking for all building users shall be as stated herein or calculated based on the provisions set forth in Chapter 12;

            (5)   All yard areas not covered by buildings or required off street parking shall be landscaped with living plant material and properly maintained;

            (6)   In cases where no space exists on site for off street parking, for buildings other than dwellings, parking may be provided off site, but within five hundred feet (500') of the site.

         c.   Signs:

            (1)   The total area of all signs on the property shall be limited to one square foot of sign area for each two hundred fifty (250) square feet of gross floor area in a building or group of buildings in a common parcel;

            (2)   If the signs are illuminated, they shall be shielded so direct rays from the light do not impact surrounding properties.

         d.   Site Plan Submittal:

            (1)   Application for a conditional use shall include a list of the uses of conversion and conditions, a site plan showing the existing conditions, any proposed structural modifications, existing and proposed parking and access, abutting right of way width and street and sidewalk improvements, fire access, existing vegetation and proposed landscaping, signs and exterior lighting;

            (2)   A declaration of the reasons justifying the proposed conversion and the steps taken to eliminate adverse impacts upon the neighborhood;

            (3)   Disclosure of actions taken to explore feasibility of conversion to permitted uses, and alleged difficulties which inhibit conversion to a permitted use.

         e.   Basis for Issuance of a Conditional Use Permit: In addition to the standard conditions for issuing a conditional use permit listed in Section 15-7-4 of this title, the planning commission shall not authorize a conditional use permit unless evidence is presented to establish:

            (1)   That the converted use will not adversely impact the desirability, stability and character of the areas in which it is located; rather it will promote the desirability and character by rehabilitative improvements upgrading the structure and neighborhood; and

            (2)   That the purposes of the general plan are promoted, while encouraging, where appropriate, the conversion of vacant, nonresidential structures in residential zones to enhance rather than adversely impact the character and social fabric of neighborhoods; and

            (3)   That necessary provisions have been taken to provide adequate hard surfaced off street parking, landscaping, screening and lighting; preservation of open space, streetscapes, and to ensure that the building meets all codes for occupancy, when considering the following:

               (A)   The size and scale of the building, in connection with the intensity of the proposed use;

               (B)   The relative location of the building in the neighborhood, i.e., on the edge or the interior of the neighborhood, a corner or midblock lot;

               (C)   The size, type and condition of the street providing access to the property;

               (D)   The convenience of access to public transportation.

            (4)   In considering applications for conditional use, the planning commission may impose such conditions as it deems appropriate to achieve the delicate balance of underlying purposes. This may include, but not be limited to, requiring bonding of proposed improvements, limiting the amount of floor space devoted to a particular use, establishing hours of operation, fencing requirements and deferring action for up to one year to allow the applicant to explore alternatives of permitted uses or to offer it for sale for a permitted use before further consideration by the planning commission.

   I.   Reuse Of Historic Building:

      1.   Purpose: This special use provision is intended to be used as a "last resort" method of preserving a historic building listed as an individual site on the Ogden City register of historic resources. Special uses will be granted only in exceptional cases when permitted or conditional uses in the underlying zone do not allow any economically beneficial zoning use or the original use of the historic building. This subsection does not apply to buildings within the Jefferson or Eccles historic districts.

      2.   Special Use In Historic Buildings: In any zone, the planning commission may permit as a special use in historic buildings, the following uses:

         Art center or museum.

         Bed and breakfast inn.

         Multiple-family dwelling units only when the underlying zoning designation permits them.

         Professional and business offices and accessory uses.

         Single-family home, if the building was originally constructed as a single-family home.

      3.   Mixed Use: In some situations, the planning commission may feel that a combination of residential or office space is desirable and that this mixture would not negatively affect the architectural integrity of the building. Since the purpose of this combination would be to mitigate some of the adverse impacts the professional office or uses have on the residential neighborhood, housing units should occupy more than fifty percent (50%) of the building to maintain a strong residential character. Office use should supplement the housing. The number of units shall not exceed that which is allowed in the residential zone in which the structure is located.

      4.   Application: Application for special uses may be filed by the owner of the property for which the special use is sought or an authorized representative.

      5.   Basis For Issuance Of Special Use Permit: The planning commission may approve an application for special use if the facts presented are such to establish:

         a.   That such use or feature as proposed will not be detrimental to the health, safety, convenience or general welfare of persons residing or working in the vicinity, or injurious to property, improvement, or potential development in the vicinity, with respect to aspects including, but not limited to, the following:

            (1)   The size, shape and arrangement of structures;

            (2)   The accessibility and traffic patterns for persons and vehicles, the type and volume of such traffic, and the adequacy of proposed off street parking and loading;

            (3)   The safeguards afforded to prevent noxious or offensive emissions such as noise, glare, dust and odor; and

            (4)   The desirability of providing landscaping, screening, open spaces, parking and loading areas, service areas, lighting and signs.

         b.   That such use or feature as proposed will comply with the applicable provisions of this title and will not adversely affect the general plan.

         c.   That such proposed use or feature is conducive to the preservation of the historic and/or architectural characteristics of the building.

      6.   Requirements:

         a.   Listed Historic Register: Property must be listed on the Ogden City register of historic resources. Buildings identified as eligible on the Central Bench historic district map and not listed as individual resources on the local register may be considered for reuse as multi-family dwellings only and not for the other uses described in subsection I2 of this section.

         b.   Justification: Owner must submit written justification as to why this property should qualify for a special use under the provisions of this subsection. Such justification shall indicate:

            (1)   What efforts have been made to comply with existing zoning as to permitted or conditional uses. When considering a special use that is for multiple-family use no special use will be considered if the proposed residential density is the maximum allowed by the zone;

            (2)   How the building's exterior architectural character and setting would be damaged by the allowable uses in the zone and how they will be preserved through the special use provided in this title;

            (3)   How the building is substantially different from similar historic buildings in the neighborhood which do comply to the existing zoning ordinance and what special considerations warrant a special use; and

            (4)   What way this use would enhance the neighborhood and meet the objectives of the general plan.

         c.   Project Formulations And Supervision: An architect with preservation expertise shall be retained by the owner to formulate and supervise a rehabilitation program for the exterior if such work is proposed.

         d.   Landscaping: The planning commission shall require whatever landscaping it feels is necessary to integrate the building into the neighborhood, or to provide visual buffers for parking on the site in relation to adjacent properties and the street. In no case will a special use be permitted if the site design meets only the minimum standards of the ordinance regarding landscaping and the amount of open space.

         e.   Parking: Any residential or commercial use must meet the required off street parking requirements as listed in chapter 12 of this title.

         f.   Signs: Flat, or identification and information signs will be permitted. The sign must be designed to be complementary to the structure in terms of its size and placement, but not to exceed sixteen (16) square feet.

      7.   Landmarks Commission Review: The owner should be aware that, in addition to presenting a proposal to the planning commission for review of the special use, any proposed exterior alterations to a historic building listed on the Ogden City register of historic resources must also be presented to the landmarks commission which will review exterior alterations to any structures or the installation or alteration of signs. The proposal will be reviewed on the basis of the landmarks commission standards and guidelines for rehabilitation. This review must be prior to the planning commission review for the special use.

   J.   Nonconforming Rights Applicable To Sexually Oriented Businesses:

      1.   By virtue of ordinances 2000-38, 2000-39, and 2000-40, adopted July 18, 2000 (hereinafter "the date of passage"), cabarets meeting the definition of adult live entertainment businesses on the date of passage were given until January 2, 2001, to obtain a sexually oriented business license or conform operations to new requirements for cabarets. Qualifying cabarets meeting the separation requirements of subsection 15-13-13C of this title may continue as a nonconforming adult live entertainment business at the existing location under the provisions of this section and this chapter, if the premises are licensed as a sexually oriented business by January 2, 2001, under title 5, chapter 15 of this code.

      2.   Any adult business or adult live entertainment business, including a qualifying cabaret, which does not meet the separation requirements of subsection 15-13-13C of this title, but which was constructed, operated, maintained and licensed in compliance with all existing or previous ordinances governing sexually oriented uses, may continue as a nonconforming use at the existing location until April 30, 2010 (the "compliance period"). Upon petition to the mayor filed on or before February 15, 2010, an extension of the compliance period may be granted for up to an additional three (3) years, until no later than April 30, 2013, to amortize an owner's or lessee's unrecovered investment in the nonconforming use or upon a finding of extreme financial hardship. No amortization or claim of extreme financial hardship is allowed to recover either a decrease in lease revenue or a decrease in property value resulting from the termination of the nonconforming use.

         a.   The time period during which an owner or lessee may amortize and recover the amount of the unrecovered investment in the nonconforming use shall be determined by dividing the unrecovered investment value by the average monthly net income from the property. The resulting figure is the number of months after the compliance period, not to exceed thirty six (36) months, which the owner or lessee shall have to recover his investment in the nonconforming use. For the purposes of this subsection, the following definitions shall apply:

            AVERAGE MONTHLY NET INCOME: The average monthly lease payment or, if the property is not leased, the average net monthly income after reasonable operating expenses from September 1, 2008 to August 31, 2009.

            UNRECOVERED INVESTMENT VALUE: Any capital improvements installed by the property owner or lessee which can only be reasonably used for the nonconforming use, less net income (after reasonable operating expenses) from the property since the improvements were installed. Unrecovered investment value does not include personal property or capital improvements which can reasonably be used for an allowed or conditional use in the zoning district. Capital improvements must have been installed pursuant to a valid building permit and the building permit must have been applied for prior to September 1, 2009.

         b.   Extreme financial hardship may be established only by a showing that a lessee operating a business or applying for a business license on or before September 1, 2009, who is obligated by a written lease entered into prior to September 1, 2009, and which cannot be voluntarily terminated by the end of the compliance period, will be unduly harmed by termination of the nonconforming use.

      3.   The following provisions shall apply to the application of the nonconforming use provisions of this chapter, as applied to sexually oriented businesses:

         a.   Each of the following shall be considered a unique and separate use: adult live entertainment businesses and adult businesses, including adult movie theaters, adult bookstores and adult video stores.

         b.   No nonconforming use may be changed to a sexually oriented business, nor any building put to reuse as a sexually oriented business under the provisions of this section, unless it fully complies with the use regulations, distance requirements, and site development standards applicable to the type of sexually oriented business.

         c.   No building arranged or designed for or devoted to a nonconforming sexually oriented business may be extended or enlarged, unless such change is intended to bring the use into compliance with ordinance requirements applicable to the type of sexually oriented business.

         d.   "Qualifying cabarets", for purposes of this section, shall only apply to licensed drinking establishments which:

            (1)   Held a cabaret license on the date of passage hereof; and

            (2)   Provided performers in a "state of seminudity", as such term is defined in title 5, chapter 15 of this code on a regular basis and for a substantial period of time prior to the date of passage.

      4.   Notwithstanding anything contrary contained in this chapter, the more restrictive standards applicable to nonconforming uses or buildings shall prevail.

   K.   Relocation Of Nonconforming Parking Lots In Residential Zones: Notwithstanding the provisions of subsection B of this section, the planning commission, upon application, may approve the relocation of a nonconforming parking lot provided the commission determines:

      1.   The parking lot considered for relocation is only used for nonresidential uses in a residential zone that are either permitted by right or are nonconforming uses.

      2.   The relocation of the parking lot brings the parking physically closer to the use that it serves in order to provide better utilization of the parking, improve the visibility of the lot from the use it serves and decreases the impact of the parking on the surrounding neighborhood.

      3.   The new parking lot does not increase the number of parking stalls from the lot it is replacing.

      4.   The replacement lot meets the setback, landscaping and screening provisions of the land use regulations.

      5.   The physical removal of the parking lot being replaced occurs within sixty (60) days after the completion of the new lot and is secured by a demolition escrow.

   L.   Restoration Of Nonconforming Use: An existing residentially designed building for two (2) or more units in a residential zone that has lost its nonconforming right may by petition to the planning commission be considered for restoration of the nonconforming right to use the building for up to the number of residential units the building was originally built for when it was constructed, provided it is determined by the planning commission that:

      1.   Reuse of the building for the original number of units it was constructed for would enhance the neighborhood by providing improved housing conditions for the neighborhood, remove nuisance potential to a neighborhood based on the building design and its relationship to surrounding properties in terms of building layout and architectural design;

      2.   The reuse will not adversely impact surrounding properties by creating parking conflicts;

      3.   The entire exterior of the building is repaired and repainted (on those wood portions of the building that traditionally are painted) to eliminate any worn or dilapidated features of the exterior of the building;

      4.   All lot areas not used for parking or circulation are landscaped and maintained;

      5.   Building upgrades are made in those areas that are identified in a building report and concurred with by the building official as needed to be made to make the building safe for habitation based on existing codes that focus on the areas of concern of upgrade. The building report shall be made by qualified people (e.g., licensed structural engineer, architect, mechanical engineer, contractor) to determine the condition of the building and premises. This report shall provide the following information:

         a.   The age of the building.

         b.   The general condition, useful life and capacity of the building, including the roof, foundations, mechanical system, electrical system, plumbing system.

         c.   An analysis of the structural elements of the building shall be conducted by a licensed engineer and any deficiencies shall be noted and a plan provided describing how the corrections are to be completed.

         d.   The property report shall identify how the building and premises will conform to the property maintenance code, as adopted by title 16, chapter 2 of this code, or its successor provisions, including the addition of the following listed items:

            (1)   All exterior and interior stairs, handrails and guardrails meeting the requirements of current code standards.

            (2)   Bedrooms provided with emergency egress windows as required by the current building codes.

            (3)   Smoke detectors and CO detectors installed as required by current building code standards and city ordinance.

            (4)   Ground fault circuit interrupters (GFCI) and arch fault interrupters installed as required as per current code standard.

            (5)   The adequacy of the drain, waste and vent systems and the existing water service pressure based on the fixture unit, loading as calculated from the currently adopted plumbing code.

            (6)   Individual gas and water shutoff valves for each unit and each plumbing fixture within the unit.

            (7)   Each dwelling provided with its own heating system, except when the building is provided with central water or steam facilities.

            (8)   Dwelling units within a building provided with means of controlling the temperature within each unit.

            (9)   Each bathroom provided with an operable window or mechanical vent, capable of providing five (5) air changes per hour.

      6.   After reviewing the information provided at the meeting the planning commission may determine to either approve the restoration of the total number of units originally in the building, approve a lesser number that would mitigate any potential impacts by the restoration of the use or deny the request. In approving the restoration the commission may impose conditions in addition to the building code upgrades it determines are needful to ensure the restoration will not create a nuisance to the neighborhood.

      7.   If the restoration of the nonconforming right is approved by the planning commission the applicant shall have one year to complete all required improvements to both the building and site that are required as part of the approval. An extension of up to one additional year may be granted by the planning commission upon the showing of good cause that efforts have been made to complete the restoration. The restoration approval shall be void if building permits to do the necessary work are not issued within six (6) months from the restoration approval date.

(Ord. 2011-39, 6-28-2011; amd. Ord. 2012-4, 4-3-2012; Ord. 2015-46, 10-20-2015; Ord. 2017-3, 2-21-2017; Ord. 2019-51, 12-3-2019; Ord. 2020-24, 6-23-2020; Ord. 2021-36, 7-6-2021; Ord. 2024-12, 5-7-2024)

The existence of any noncomplying building or nonconforming use will be recognized by the city through issuance of a noncomplying structure or nonconforming use certificate. The certificate shall describe the nature and extent of any noncompliance or nonconformity. The certificate shall also include any permits authorizing expansions, additions or changes of use approved by the director or the planning commission under the provisions of this title and any conditions imposed thereon.

   A.   Issuance: A noncomplying or nonconforming certificate shall be issued by the director upon the applicant establishing the existence of the noncomplying structure or nonconforming use right by a preponderance of the evidence. Any application for a noncomplying structure or nonconforming use certificate shall include:

      1.   A complete description of the nature and character of the noncompliance or nonconformity, including any accessory uses;

      2.   A site plan showing all existing buildings, structures, parking facilities and other improvements on the applicable lot;

      3.   Any evidence the applicant intends to submit to establish the noncompliance or nonconformity; and

      4.   Whether the applicant requests at that time an administrative hearing for additional submission of evidence.

   B.   Review Procedures:

      1.   Except as provided in subsection B4 of this section, the burden of proving the existence of a noncomplying structure or nonconforming use shall be upon the applicant. The director may investigate the accuracy or credibility of any information submitted and may conduct its own investigation into any facts pertaining to the existence or nonexistence of the noncomplying structure or nonconforming use.

      2.   Once the application has been submitted and reviewed, the director shall, within a reasonable period of time, request additional information or make a decision on the request by either approving issuance of the certificate or denying the application stating the reasons for denial.

      3.   The decision of the director is a final administrative decision, subject to appeal to the board of zoning adjustment.

      4.   In regards to a building being used as a two-family dwelling (duplex) on January 16, 2001, when the subject property was rezoned from R-2 to R-1, there shall be a presumption that such dwelling was a legal nonconforming use on such date, but shall not be afforded those privileges allowed under section 15-13-28 of this title, if the director determines the following by a preponderance of the evidence:

         a.   The two-family dwelling (duplex) was originally established as a legal use but may have lost its nonconforming status prior to January 16, 2001, due to its interim use as a single-family dwelling, and the dwelling's failure to comply with subsequently adopted parking regulations upon its subsequent conversion back to a duplex prior to January 16, 2001; and

         b.   The evidence does not show that:

            (1)   The dwelling was enlarged or expanded prior to its conversion back to a duplex,

            (2)   The original duplex was removed and replaced with a new dwelling, or

            (3)   Legally required parking was removed without being replaced.

   C.   Expansions, Additions, Or Changes Of Noncomplying Structures Or Nonconforming Uses:

      1.   No expansions, additions or changes of a noncomplying structure or nonconforming use under sections 15-6-2 and 15-6-3 of this chapter shall be approved unless and until a noncomplying structure or nonconforming use certificate has been issued as described above.

      2.   Any noncomplying structure or nonconforming use permit approving an expansion or change shall become a part of the original certificate and subject to any conditions placed thereon.

      3.   Any approval granted by the planning commission or the director for an expansion, addition or change of a noncomplying structure or nonconforming use shall expire if, within a one year period, there is no substantial action taken to complete the change or expansion.

      4.   The permit portion of a noncomplying structure or nonconforming use certificate issued for an expansion, addition or change may be revoked by the issuing body if any of the conditions or terms are violated. The holder of the certificate shall first be afforded an opportunity to be heard before the board or commission, as applicable, and show cause why the certificate should not be revoked. In addition, a violation of a condition or term of the certificate shall constitute a violation of this title, and the revocation of a certificate shall not prohibit any other remedy provided herein.

   D.   Revocation; Incorrectly Issued Certificate: A noncomplying structure or nonconforming use certificate may be revoked by the director if the director determines that such certificate was incorrectly issued due to mistake or misrepresentation, or upon the discovery of new evidence demonstrating that the rights of a noncomplying structure or nonconforming use did not exist. Notice of revocation is a final administrative decision and shall be mailed to the owner of the property at the address shown in the records of the Weber County recorder's office. The property owner or other affected parties of the decision may appeal the final determination of the director to the board of zoning adjustment within thirty (30) days of the mailing of the notice of final determination. A decision revoking the permit does not restrict the right of the property owner to make further application for a noncomplying structure or nonconforming use permit after presentation of additional evidence or information.

   E.   Building Permit: After the effective date hereof, no building permit shall be issued which encompasses any nonconforming use or noncomplying building without the prior issuance and except in accordance with the terms and conditions of a nonconforming or noncomplying certificate. The city shall continue to recognize any nonconforming use or noncomplying building previously approved, but the character, nature and extent of the nonconforming use or noncomplying building must hereafter be documented through the application and certificate issuance process described in this section.

   F.   Loss Of Right; Procedure: If the director determines that a loss of a nonconforming use or noncomplying structure right has occurred under the provisions of this chapter, whether from the director's own information or by way of information provided by others, the director shall notify the owner of the property, at the address shown in the records of the Weber County recorder's office, that the loss of nonconforming or noncomplying rights has occurred. The notice is a final administrative decision and the owner may, within thirty (30) days of the mailing of said notice, appeal to the board of zoning adjustment.

(Ord. 2005-32, 5-24-2005; amd. Ord. 2005-69, 12-6-2005; Ord. 2011-48, 10-18-2011)

The provisions of this chapter are not intended to restrict the city council's authority under section 10-9a-511, Utah Code Annotated, to terminate all nonconforming uses, except billboards, by providing a formula establishing a reasonable time period during which the owner can recover or amortize the amount of his or her investment in the nonconforming use, if any.

(Ord. 2005-32, 5-24-2005)