Unless otherwise specifically provided in this LDC and subject to the restrictions and qualifications set forth in Sections 7.2 through Section 7.7, non-conforming situations that were otherwise lawful on the effective date of this LDC may be continued.

(A)

Use of Lot Non-Conforming in Size 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 minimums set forth in Article IV, Section 4.12 then the lot may be used as proposed, just as if it were conforming. However, no use (e.g. duplex) that requires a greater lot size than the established minimum lot size for a particular zone is permissible on a non-conforming lot.

(B)

Use of Lot Non-Conforming in Setbacks When the proposed use is one that is conforming to all respects but the applicable setback requirements cannot reasonably comply, deviations from the applicable setback requirements may be issued if:

(1)

The property cannot reasonably be developed without such deviations. Compliance is not reasonably possible if a building that serves the minimal needs of the use proposed for the non-conforming lot cannot be constructed and located on the lot in conformity with such setback requirements. Mere financial hardship does not constitute grounds for finding that compliance is not reasonable.

(2)

The deviations are necessitated by the size or shape of the non-conforming lot.

(3)

The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health and safety.

(C)

Applicable to Undeveloped Lots Only This section applies only to undeveloped non-conforming lots (a lot of record with no substantial structures).

(D)

Combination of Non-Conforming Lots Subject to the following sentence, if, on the date this subsection becomes effective, an undeveloped non-conforming lot adjoins and has continuous frontage with one (1) or more other undeveloped lots under the same ownership, then neither the owner of the non-conforming lot nor his successors in interest may take advantage of the provisions of this section. This subsection 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 five hundred (500) feet of such lot are also non-conforming. The intent of this subsection is to require non-conforming lots to be combined with other lots to create conforming lots, but not to require such combination when that would be out of character with the rest of the neighborhood.

(A)

Increase in Extent of Non-Conformity Prohibited Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of non-conformity. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:

(1)

An increase in the total amount of space devoted to a non-conforming use or

(2)

Greater nonconformity with respect to dimensional restrictions or other requirements.

(B)

Expansion of Non-Conforming Use in Existing Buildings Subject to Subsection 7.3(D), changes in use, a non-conforming use may be extended throughout any portion of a completed building that, when the use was made non-conforming by this LDC, was manifestly designed or arranged to accommodate such use. However, subject to Section 7.7, a non-conforming use may not be extended to additional buildings or to land outside the original building.

(C)

Non-Conforming Use of Land Subject to Section 7.7 a non-conforming use of open land may not be extended to cover more land than was occupied by that use when it became non-conforming, except that a use that involves the removal of natural materials from the lot (e.g., a sand pit) may be expanded to the boundaries of the lot where the use was established at the time it became non-conforming if ten (10) percent or more of the earth products had been removed before January 3, 2006.

(D)

Changes in Use The volume, intensity, or frequency of use of property where a non-conforming situation exists may be increased and the equipment or processes used at a location where a non-conforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other paragraphs of this section occur.

(E)

Single-Family Residential Non-Conformities Notwithstanding Subsection 7.3(A), increase in extent of non-conformity prohibited, any structure used for single-family residential purposes and maintained as a non-conforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to such matters as setback and parking requirements. This paragraph is subject to the limitations stated in Section 7.6.

(A)

Buildings Shall Be Maintained Minor repairs to and routine maintenance of property where non-conforming situations exist are permitted and encouraged. Major renovation, i.e., work estimated to cost more than twenty-five (25) percent of the appraised valuation of the structure to be renovated may be done only in accordance with a development permit issued pursuant to this section.

(B)

Damage to Non-Conforming Structure If a structure located on a lot where a non-conforming situation exists is damaged to an extent that the costs of repair or replacement would exceed twenty-five (25) percent of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a development permit issued pursuant to this section. This subsection does not apply to structures used for single-family residential purposes, which structure may be reconstructed pursuant to a development permit just as they may be enlarged or replaced as provided in Subsection 7.3(E).

(C)

Cost Defined For purposes of Subsection 7.3(A) and Subsection (B).

(1)

The "cost" of renovation or repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair, or replacement.

(2)

The "cost" of renovation or repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of Subsections 7.4(A) or (B) by doing such work incrementally.

(3)

The "appraised valuation" shall mean either the appraised valuation for property tax purposes, updated as necessary by the increase in the consumer price index since the date of the last valuation, or the valuation determined by a professionally recognized property appraiser.

(D)

Compliance with this LDC Compliance with a requirement of this LDC is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or 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. The Land Use Administrator shall issue a development permit authorized by this section if it is found that, in completing the renovation, repair or replacement work:

(1)

No violation of Section 7.3.

(2)

The applicant will comply, to the extent reasonably possible, with all provisions of this LDC applicable to the existing use (except that the applicant shall not lose his right to continue a non-conforming use).

(A)

Change in Use of Property A change in use of property (where a non-conforming situation exists) that is sufficiently substantial to require a new development order in accordance with Section 3.3, Development Orders, may not be made except in accordance with Subsections 7.5(B) through (D) below.

(B)

Conformity with Code If the intended change in use is to a principal use that is permissible in the district where the property is located, and all of the other requirements of this LDC 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 LDC is achieved, the property may not revert to its non-conforming status.

(C)

Inability to Comply with the Code If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this LDC applicable to that use cannot reasonably be complied with, then the change is permissible if the order-approving authority for that particular use issues a development order authorizing the change. This development order may be issued if the order-approving authority finds, in addition to any other findings that may be required by this LDC that:

(1)

The intended change will not result in a violation of Section 7.3; and

(2)

All of the applicable requirements of this LDC that can reasonably be complied with will be complied with. Compliance with a requirement of this LDC is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or 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. And in no case may an applicant be given permissions pursuant to this subsection to construct a building or add to an existing building if additional nonconformities would thereby be created.

(D)

Change to Another Non-Conforming Use If the intended change in use is to another principal use that is also non-conforming, then the change is permissible if the entity authorized by this LDC to issue a development order for that particular use issues a development order authorizing the change. The order-approving authority may issue the development order if it finds, in addition to other findings that may be required by this LDC, that:

(1)

The use requested is one that is permissible in some zoning district with either a zoning use order, special exception use order, or other development order, and

(2)

All of the conditions applicable to the development order authorized in Subsection (C) of this section are satisfied, and

(3)

The proposed development will have less of an adverse impact on those most affected by it and will be more compatible with the surrounding neighborhood than the use in operation at the time the development order is applied for.

(A)

Discontinuing a Non-Conforming Use When a non-conforming use is discontinued for a consecutive period of one hundred eighty (180) days, or discontinued for any period of time without a present intention to reinstate the non-conforming use, the property involved may thereafter be used only for conforming purposes.

(B)

Discontinuing a Non-Conforming Situation If the principal activity on a property where a non-conforming situation other than a non-conforming use exists is: discontinued for a consecutive period of one hundred eighty (180) days or discontinued for any period of time without a present intention of resuming that activity, then that property may thereafter be used only in conformity with all of the regulations applicable to the pre-existing use unless the entity with authority to issue a development order for the intended use, issues a development order to allow the property to be used for this purpose without correcting the non-conforming situations. This development order may be issued if the order-approving authority finds that eliminating a particular nonconformity is not reasonably possible (i.e., cannot be accomplished without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation). The development order shall specify which non-conformities need not be corrected.

(C)

Determining the Right to Continue a Non-Conforming Situation For purposes of determining whether a right to continue a non-conforming situation is lost pursuant to this section, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole. For example, failure to rent one (1) apartment in a non-conforming apartment building for one hundred eighty (180) days shall not result in a loss of the right to rent that 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.

(D)

Existing Vacant or Discontinued Non-Conformities When a structure or operation made non-conforming by this LDC is vacant or discontinued at the effective date of this article the one hundred eighty-day period for purposes of this section begins to run on the effective date of this article.

(A)

Non-Conforming Projects May Be Completed All non-conforming projects on which construction was begun at least one hundred eighty (180) days before the effective date of this LDC as well as all non-conforming projects that are at least ten (10) percent completed in terms of the total expected cost of the project on the effective date of this LDC may be completed in accordance with the terms of their development orders or permits, so long as these development orders or permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

(B)

Ceasing of Work on Non-Conforming Projects Except as provided in Subsection 7.7(A), non-conforming projects may be completed, all work on any non-conforming project shall cease on the effective date of this LDC, and all development orders or permits previously issued for work on non-conforming projects may begin or may be continued only pursuant to a zoning use permit, special exception use order, or other development orders or permits issued in accordance with this section by the individual or board authorized by this LDC to issue development orders or permits for the type of development proposed. The issuing authority shall issue such a development order or permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his position in some substantial way in reasonable reliance on the land-use law as it existed before the effective date of this LDC and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed. In considering whether these findings may be made, the issuing authority shall be guided by the following, as well as other relevant considerations:

(1)

All expenditures made to obtain or pursuant to a validly issued or unrevoked development order or permit, or other approval shall be considered as evidence of reasonable reliance on the land-use law that existed before this LDC became effective.

(2)

Except as provided in Subsection 7.7(B)(1) of this subsection, no expenditure made more than one hundred eighty (180) days before the effective date of this LDC may be considered as evidence of reasonable reliance on the land-use law that existed before this LDC became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

(3)

To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

(4)

To the extent that a non-conforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

(5)

An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of the total estimated cost of the proposed project, and the ordinary business practices of the developer.

(6)

A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land-use law affecting the proposed development site could not be attributed to him.

(7)

Even though a person had actual knowledge of a proposed change in the land-use law affecting a development site, the issuing authority may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that at the time the expenditures were made, there was either considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development, and the developer had legitimate business reasons for making expenditures.

(C)

Completion of Phases or Stages Only When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under Subsection (B), ceasing of work on non-conforming projects. The issuing authority shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a non-conforming project, consider the following in addition to other relevant factors:

(1)

Whether any plans prepared or approved regarding uncompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural, or engineering work.

(2)

Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

(3)

Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or such a scale, in anticipation of connection to or interrelationship with approved but uncompleted phases that the investment in such utilities or other facilities cannot be recouped if such approved but uncompleted phases are constructed in conformity with existing regulations.

(D)

Time Limit The issuing authority shall not consider any application for development order or permit authorized by Subsection 7.7(B) that is submitted more than sixty (60) days after January 3, 2006. The issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one (1) year.

(E)

Expedited Procedures Issuing authority shall establish expedited procedures for hearing applications for development orders or permits under this section. These applications shall be heard, whenever possible, before the effective date of this LDC, so that construction work is not needlessly interrupted.