(a)

Purpose. The purpose of this article is to allow for, while not encouraging, the continuation of those lots, structures, uses, characteristics of use, or combinations thereof, that were lawful before the passage of the ordinance from which this Land Development Code is derived, but would be prohibited, regulated, or restricted under the terms of this Land Development Code or future amendments thereto. This article is designed to provide reasonable and equitable standards and guidelines for the control and continued use of nonconforming uses and structures. The regulations are especially important in regulating changes in the use or structure. Characteristics regulated include: volume or intensity, location, ownership or tenancy, accessory or incidental uses thereto, extension, enlargement, replacement or any other change in characteristics of uses, buildings or structures.

(b)

Intent. It is the intent of this article to allow the continued use of nonconforming sites, uses or structures provided that they are continued in their present condition, not enlarged upon, expanded or extended, nor used as grounds for adding other structures or uses prohibited elsewhere in the same district; and to allow the development of nonconforming lots of record, provided there are no adverse impacts on adjoining properties or the surrounding neighborhood and the development conforms to all setbacks and other development regulations to the maximum extent feasible. Such nonconformities are declared by this article to be incompatible with the standards established in this Land Development Code.

(c)

Types of nonconforming status. Nonconforming status is awarded to the following property classifications which lawfully existed prior to the adoption of the ordinance from which this Land Development Code is derived, but which would subsequently be prohibited or unduly burdened with significant hardship due to LDC regulations and restrictions:

(1)

Lots.

(2)

Uses of land.

(3)

Structures.

(4)

Developed sites.

(5)

Density.

(a)

Continuance of nonconformities. A nonconforming use or combination of uses, structure, or site lawfully existing on the effective date of the ordinance from which this Land Development Code is derived may be continued subject to the provisions of this article.

(b)

Rules for interpretation. Nothing in this Land Development Code shall be interpreted as authorization for, or approval of, continuation of any illegal use of land, structure, or premises, in violation of any regulation in effect at the time of the passage of the ordinance from which this Land Development Code is derived. The casual, intermittent, temporary or illegal use of land, structure or premises shall not be sufficient to establish the existence of a nonconforming use, nonconforming density, nonconforming lot or a nonconforming building, structure or development of a site. Any building, or structure, or development site for which a lawful building permit was issued prior to the enactment of the ordinance from which this Land Development Code is derived, and construction of which is in conformity with approved site plans, if applicable, and building plans, shall not be affected by this Land Development Code, if the planned building or structure is built in full compliance with this Land Development Code as it existed at the time of the issuance of the building permit. However, if such building or structure does not comply with the provisions of this Land Development Code, then it shall be considered nonconforming by applying this Land Development Code to the building, structure or use.

(a)

Use of nonconforming lots of record.

(1)

Districts not permitting single-family homes. A nonconforming lot of record may be used for any use permitted within the district in which the lot is located provided that the development or use shall comply with all the district regulations in effect at the time of development order issuance. Nothing herein may preclude the award of a variance request meeting the standards for such requests under section 1-16, Board of Adjustment and Appeals.

(2)

Districts allowing single-family homes. In residential districts in which both single-family dwelling units and duplex uses are permitted, only single-family dwelling units meeting all setback requirements may be erected on nonconforming lots of record. However, this restriction shall not apply in districts having special requirements for the replacement of existing duplexes, single-family and multifamily units as defined by article III of this chapter.

(b)

Contiguous nonconforming lots under common ownership. If two (2) or more lots or combination of lots with continuous frontage which have not been held in single ownership at the time of adoption of this Land Development Code or were subsequently combined into single ownership. Where such combined ownership occurred or presently occurs, the lands involved shall be considered to be an undivided parcel for the purpose of meeting the requirements of this Land Development Code, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with current lot width, depth, or area requirements.

(c)

Division of land or lot splits. No division of any lot or parcel shall be made which leaves any lot, parcel, or remnant with width or area below the requirements stated in the land development regulations.

If, upon adoption or amendment of the ordinance from which this Land Development Code is derived, a lawful use of land exists which would not otherwise be permitted, then the use may be continued, provided:

(1)

Such nonconforming use is not enlarged, expanded or extended to occupy a greater area of land or additional structures.

(2)

Such nonconforming use is not moved in whole or part to any portion of the lot other than that occupied by such use at the effective date of adoption or amendment of said ordinance.

(3)

No additional structure not conforming to the requirements of this Land Development Code is erected in connection with such nonconforming use of land or use of structure.

(a)

Continuance of nonconformities. If a structure is made nonconforming by the terms of this Land Development Code due to restrictions on area, lot coverage, height, required yards, location on the lot or other requirements concerning the structure, then such nonconforming structure may be continued if it remains otherwise conforming.

(b)

Alteration, extension, enlargement or expansion of nonconforming structure. A nonconforming structure shall not be enlarged or altered in a way which increases its nonconformity or results in any encroachment or further encroachment into any required setback or buffer area, but it may be altered to decrease its nonconformity.

(c)

Repair or modernization of a structure containing a nonconforming use. The repair or modernization of any structure for which a nonconforming use is permitted, provided that neither the square footage nor the cubic content existing when it became nonconforming shall be increased.

(d)

Necessary public safety improvements. Nothing in this article shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any public official charged with protecting life and the public safety, upon order of such official.

(e)

Replacement, restoration, reconstruction or relocation of nonconforming buildings or structures.

(1)

Destruction by fifty percent (50%) or more. Structures and portions thereof destroyed by fifty percent (50%) or more of the total square footage. If fifty percent (50%) or more of the total square footage of a nonconforming structure or is destroyed by any means so that the area is rendered unusable at the time of destruction, then it shall not be reconstructed except in conformity with the provisions of this Land Development Code.

(2)

Destruction by less than fifty percent (50%). Structures and portions thereof destroyed by less than fifty percent (50%) of the total square footage. If less than fifty percent (50%) of the square footage of a nonconforming structure is destroyed by any means so that the structure is rendered unusable at the time of destruction, such structure shall be permitted to be replaced, restored, or reconstructed so long as the preexisting nonconformity is not increased. However, any such improvement must occur only in compliance with the building and other construction and safety-related codes of the city in effect at the time of application for a permit to allow replacement, restoration or reconstruction. Reasonable effort shall be undertaken to remedy any prior nonconformity.

(3)

Relocated structures. If a nonconforming structure is moved for any reason, it shall thereafter conform to the regulations of the zoning district in which it is located after it is moved.

(4)

Removal of structures. If more than one (1) mobile home is located on a single lot in the T-2 district upon adoption of the ordinance from which this Land Development Code is derived and any mobile home is removed from such lot for more than six (6) months, such structure shall not be replaced, except in conformance with the minimum dimensional requirements of that district and the limitation of one (1) principal structure per lot.

(f)

Review of variances. The city's Board of Adjustment and Appeals may review variance requests to allow for the expansion of the nonconforming portion of a structure. The Board of Adjustment and Appeals will use the following standards in reviewing requests for expansion of nonconforming structures:

(1)

The property where the structure is located meets the minimum lot area standards for the zoning district, as specified in article II of this chapter.

(2)

There are no other ways of altering the structure that will not result in increasing the nonconforming cubic content of the structure.

(3)

The proposed expansion will be consistent with the use of the structure and surrounding structures, given that the use is permitted by right, conditional use or conditional use permit in the zoning district that the structure is located within.

(4)

The proposed expansion effectively squares-off an existing building, or does not extend beyond the furthest point of an adjacent building on the site.

(5)

The proposed expansion is in scale with adjacent buildings.

(6)

The proposed expansion will not impact adjacent properties by limiting views or increasing light and/or noise.

(a)

Continued use. The use of a nonconforming developed site may continue in accordance with the following criteria:

(1)

No building addition or site modifications which, in the opinion of the planning director, after consultation with the fire department and the police department, shall increase the nonconforming status of the site or have an adverse effect on public safety. Additional telecommunications antennas may be attached to a preexisting telecommunications tower located on an existing, nonconforming developed site, subject to the provisions of this Land Development Code.

(2)

Building alterations are not allowed other than interior renovation (including minor structural alterations such as partition walls, plumbing or electrical changes) or those alterations required for public safety or regular maintenance (such as exterior siding or painting, window or door replacement).

(3)

A nonconforming developed site may be occupied by a new use, provided that the proposed new use is:

a.

A permitted use located in an existing shopping center;

b.

A conditional use subject to review and approval under this Land Development Code and which will not substantially increase the nonconforming status of the site as determined by the planning director; or

c.

Is a permitted use within the zoning district and is a similar use to a previously approved use.

(4)

The term "similar use" means a use which:

a.

Is in the same occupancy group as the previously approved use, as such groups are listed in chapter 3 of the state building code;

b.

Has the same parking requirement or would require less parking than the previously approved use even where that site is nonconforming with regard to meeting current minimum parking standards; and

c.

Does not involve one (1) of the following changes between land use categories as depicted with an X:

(b)

Change of use or site.

(1)

Where the planning director determines that a proposed change in use is not in conformance with subsections (a)(3)b, (4)a and b of this section, then the applicant shall submit to the planning department an application for site plan review to include such plans, drawings, and other information as required by the planning director. Decisions made regarding the need for site plan review and/or the type of information required may be appealed to the site plan review committee, whose decision may, in turn, be appealed to the city commission.

(2)

It is the intent of the site plan review process that, to the maximum extent practical, nonconforming sites be improved to meet current ordinance requirements including, but not limited to, those for parking, driveways, paved surfaces, stormwater retention, buffers, landscaping and fencing/screening.

(3)

Minor deviations from the strict interpretation of site development standards may be allowed, if complete conformity cannot be achieved due to site area, lot configuration, or the location of existing buildings. The process for review and approval shall be as follows:

a.

The SPRC for permitted uses.

b.

The city commission, after a public hearing by the planning board, for special exception or planned developments.

(4)

In the event that the applicant does not concur with the findings of the SPRC, he may appeal such findings to the city manager who may refer such matter back to the SPRC for additional review or to the city commission, whose determination shall become final.

(c)

Enforcement. Any use so allowed may be subject to code enforcement proceedings if the use is being operated contrary to the provisions of this Land Development Code, or is a hazard to the public safety, as it is being operated.

Existing residential uses that exceed the density permitted under this Land Development Code and the comprehensive plan shall not be permitted to expand, enlarge or improve current structures, other to address building, health, fire or safety issues.

(a)

Abandonment. If a nonconforming use of land, structure, or density is abandoned for a period of six (6) consecutive months, or if a nonconforming use of land or structure is abandoned for a total of eighteen (18) months or more in any two (2) year period after the enactment of the ordinance from which this Land Development Code is derived, then such use shall not be reestablished. Any future use shall be in conformity with the provisions of this Land Development Code and any equipment associated with the abandoned nonconformity shall be completely removed from the premises by its owner of such duly noticed abandoned property. Such abandonment shall be indicated by one (1) or more of, but not limited to, the following:

(1)

Allowing business taxes to lapse;

(2)

Removing utility meters;

(3)

Not maintaining structure in a habitable condition;

(4)

Not making unit available for occupation (i.e., advertising or marketing through a realtor or other agent); and/or

(5)

Failure to perform actions pursuant to the terms of an active building permit.

(b)

Voluntary abandonment predicated on a government assisted program or code enforcement action. If a nonconforming use of land or structure is abandoned as a result of voluntary participation in a government-assisted program or as a result of code enforcement action, the nonconforming use may be reestablished within a period of twelve (12) months following said abandonment of the use.

(a)

Approved development.

(1)

Where an eminent domain action affects an approved site or development plan or subdivision, such plan shall remain in effect, provided that the taking does not have a substantial impact on traffic circulation and access; wetlands or other environmental amenities; access for city service and emergency vehicles; stormwater or other utility systems; or pose adverse impacts on adjoining residential properties. Where an approved site plan is impacted to the extent that there are substantial public safety impacts or impacts on environmentally sensitive lands, such plan may be deemed to be no longer in effect upon review of the SPRC and concurrence of the city commission.

(2)

The SPRC may require partial adjustments in the site plan (e.g., not to full ordinance standards) in order to reduce impacts, to the maximum extent economically feasible.

(3)

An approved plan shall remain in effect under this section only until such plan expires in accordance with the expiration dates established in chapter 1, article II of this Land Development Code. Subsequent resubmittals shall conform to all ordinance requirements then in effect.

(b)

Existing lot of record. Where an eminent domain action or court decree reduces any lot dimension below the minimum required under this Land Development Code, such lot shall be deemed a nonconforming lot of record, as defined in section 2-61.

(c)

Developed sites. If, as a result of governmental right-of-way acquisition, by either negotiation or condemnation, existing principal or accessory structures and vehicular use areas would become nonconforming or further nonconforming with regard to the setback and landscape provisions of this Land Development Code, the following provisions shall apply:

(1)

Subject to the procedure set forth in subsection (c)(4) of this section, existing principal or accessory structures and vehicular use areas that are not within the portion of land taken, but, because of the taking, do not comply with regard to the setback or landscape requirements of this Land Development Code, shall not be required to be constructed to meet such requirements and the remainders shall be deemed thereafter to be conforming properties. The exemption thus created shall, subject to the following, constitute a covenant of compliance running with the land. Any change of use or alteration of the primary structure or an accessory structure or vehicular use area will nullify the covenant of compliance. Such a property shall be considered a nonconforming developed site and be required to meet the provisions of this Land Development Code regarding nonconforming developed sites.

(2)

Subject to the procedure set forth in subsection (c)(4) of this section, any conforming principal or accessory structure or vehicular use areas taken either totally or partially may be relocated on the remainder of the site without being required to comply with the setback and landscaping provisions of this Land Development Code, except that the relocated principal or accessory structure or vehicular use areas shall be set back as far as is physically feasible without reducing the utility or use of the relocated principal or accessory structure or vehicular use areas below its pre-taking utility use. Structure and vehicular use areas relocated under the provisions of this section are required to meet all other provisions of this Land Development Code. The exemption thus created shall, subject to the following, constitute a covenant of compliance running with the land. Any change of use or alteration of the primary structure or an accessory structure or vehicular use area will nullify the covenant of compliance. Such a property shall be considered a nonconforming developed site and be required to meet the provisions of this Land Development Code regarding nonconforming developed sites.

(3)

If more than fifty percent (50%) of the total floor area of a structure exempt according to subsections (c)(1) and (2) of this section is destroyed by any means so that the area is rendered unusable at the time of destruction, then it shall not be reconstructed except in conformity with the provisions of this Land Development Code.

(4)

As to the exemptions in subsections (c)(1) and (2) of this section, either the condemning authority or the landowner or both may apply in writing to the planning director for a determination that the granting of the exemption will not result in a condition dangerous to the health, safety or welfare of the general public. The planning director shall, within thirty (30) days of the filing of application, determine whether or not the exemption to the setback or landscaping provisions granted by this section will endanger the health, safety, or welfare of the general public. If the planning director determines that the granting of the exemption under this section will not constitute a danger to the health, safety, or welfare of the general public, the planning director shall issue a letter to all parties granting the exemption. The letter shall specify the details of the exemption in a form recordable in the public records of the county. If the application is denied, the planning director shall issue a letter to the applicant specifying the specific basis of the denial. An appeal may be taken from such a denial in accordance with the procedures set forth in chapter 1, article II of this Land Development Code.

(5)

Any development permits or variances necessary to relocate building or vehicular use areas or other permitted uses taken or partially taken may be applied for by either the property owner or by the condemning authority and granted for the property in question by the appropriate authority.

(a)

Submittal requirements. An owner/applicant desiring to ascertain whether a nonconformity was established lawfully or unlawfully (i.e., whether or not the nonconformity complied with existing laws and ordinances at the time it was established) shall submit an application to the planning department. After reviewing the information submitted, the planning director shall render a determination regarding the nonconforming status. Upon completion of the review process, the planning director shall forward to the applicant a determination in writing. The planning director may request additional information, prior to rendering a determination as to whether the nonconformity was established lawfully or unlawfully.

(b)

Application requirements.

(1)

The owner/applicant shall be responsible for obtaining historical information that shall include all uses and structures, including all existing improvements on the property, together with land use policy assigned to the property, and all rezoning and variance actions that may have been applied to the property. An application for a determination of nonconforming status is available from the planning department and shall contain the following:

a.

Name and address of applicant legibly printed or typed with applicant's signature.

b.

The street address and affidavit stating legal description of the property.

c.

Survey of property indicating all existing improvements.

d.

The present zoning classification and comprehensive plan future land use map designation, as well as the continuous sequence of use or uses of the property and the timing and phasing of improvements to the property.

e.

A statement that the owner/applicant has justification and personal knowledge of the above information.

f.

A statement requesting city's determination of the status of the nonconformity.

g.

A description of the nonconformity, if known by the applicant.

(2)

Such application shall be dated and notarized prior to submittal to the planning department. The applicant shall submit supportive evidence, including the following items as may be deemed by the planning director to be appropriate:

a.

Survey drawn to scale, indicating property boundaries and all existing structures, all other.

b.

Floor plans, with dimensions clearly legible.

c.

Photographs.

d.

Historical information about the property from the county property appraiser's office.

e.

Historical documentation from public and/or private utility companies regarding electrical and/or water service (e.g., dates that the original electrical and/or water meters were installed, set and length of service, as well as, documentation of the use or activity serviced together with related information).

f.

Business tax receipt information (if the request is for a business).

g.

Copies of relevant legal documents (e.g., leases, rental documents, deeds, private property appraisals, contract agreements and similar documents).

h.

Current and historical records from the city building department pertaining to the property (e.g., copies of permit applications, permits, site plans and similar information).

i.

Any other pertinent information relative to the request.

(c)

Appeal of the planning director. Appeals of the planning director's determination shall be in accordance with the procedures established in section 1-19, along with the applicable filing fee.