1.   Intent. If within the districts established by this chapter or amendments that may later be adopted there exist lots, structures and uses of land and structures which were lawful before this zoning code was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendments, it is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this chapter to be incompatible with permitted uses in the districts involved. It is further the intent of the zoning code that nonconformities shall not be enlarged upon, expanded, or extended, or be used as grounds for adding other structures, signs or uses prohibited elsewhere in the same district. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this zoning code and upon which actual building construction has been diligently carried on. “Actual construction” is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner, except that if the demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved.

2.   Nonconforming Lots of Record.

   A.   In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this chapter, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this Zoning Code. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This provision shall apply even though such lots fail to meet the requirements for area or width or both that are generally applicable in the district, provided that yard dimensions and other requirements not involving area or width or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of area, width, and yard requirements shall be obtained only through action of the Board of Adjustment.

   B.   If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this chapter, and if all or part of the lots do not meet the requirements for lot width and area as established by this zoning code, the land involved shall be considered to be an undivided parcel for the purposes of this Zoning Code, and no portion of said parcel shall be used or sold which does not meet lot width and area requirements established by this zoning code nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this Zoning Code.

3.   Nonconforming Uses of Land. Where, at the effective date of adoption or amendment of this Zoning Code, a lawful use of land exists that is made no longer permissible under the terms of this Zoning Code as enacted and amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:

   A.   No such nonconforming use shall be enlarged or increased or extended to occupy a greater use of land than was occupied at the effective date of adoption or amendment of this Zoning Code.

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

   C.   If any such nonconforming use of land ceases for any reason for a period of more than 18 consecutive months, any subsequent use of such land shall conform to the regulations specified by this chapter for the district in which such land is located.

4.   Nonconforming Structures - General. Where a lawful structure exists at the effective date of adoption or amendment of this Zoning Code that could not be built under the terms of this Zoning Code by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be so continued so long as it remains otherwise lawful, subject to the following provisions:

   A.   Should such structure be destroyed by any means to an extent of more than 75 percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this chapter.

5.   Nonconforming Structures - 2008 Flood. Where a lawful structure exists at the time of the June 2008 flood that could not be built under the terms of this zoning code by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be so continued, repaired or replaced so long as it remains otherwise lawful, subject to the following provisions:

   A.   This Subsection 165.21(5)(A) only applies to:

      (1)   Structures on properties that are wholly outside of the 100- year flood plain.

      (2)   Structures that were damaged primarily due to the flood of June 2008.

      (3)   Structures for which a building permit is applied for and approved on or before December 31, 2009.

      (4)   The single principal building on the property.

      (5)   The single major project, whether repair, reconstruction, or replacement.

   B.   No such structure may be enlarged or altered in a way which increases its nonconformity, except as follows:

      (1)   The applicant has submitted grading and drainage plans that are sufficient in accuracy and detail, as determined by the City Engineer, so that the potential impact of the proposed structure can be evaluated with respect to immediately surrounding properties, the neighborhood and the community at large;

      (2)   The proposed structure will not adversely impact the use and enjoyment of the immediately surrounding properties by their owners, the neighborhood more generally, and the community at large with respect to drainage, access, and use of right-of-way and easements (public or private);

      (3)   The “footprint” of the proposed structure on the site will not be increased by greater than 15 percent;

      (4)   The proposed structure will not project any further into required rear and side yard setbacks than does the existing building;

      (5)   The front yard setback for the proposed structure and any permanent attachment or addition to the proposed structure will be at least 10 feet;

      (6)   No permitted addition to a nonconforming structure will include a wall within 10 feet of a window of an adjacent pre-existing residential structure; and

      (7)   The proposed structure will not be placed on or over any private or public easement.

   C.   Variances from the standards set forth in this section shall be heard and decided by the Board of Adjustment. In these cases, the Board shall consider,

in addition to the criteria for variances set forth in Section 165.24(6)(E). the following criteria and factors:

      (1)   It is the City’s preference that property owners adversely and significantly affected by the June 2008 flood be allowed to repair, reconstruct, or replace damaged structures while still complying with the general intent, spirit, and purpose of these Zoning Code.

      (2)   It is the applicant’s burden to demonstrate that there are no other reasonable alternatives available to reconstruct or replace the existing principal structure.

      (3)   The proposed structure will not adversely impact the use and enjoyment of immediately surrounding properties by their owners, the neighborhood more generally, and the community at large with respect to drainage, access, and use of right-of-way and easements (public or private).

      (4)   Any side or rear yard shall not be less than five feet under any circumstances in residential districts in the event a variance is granted.

6.   Nonconforming Uses of Structures. If a lawful use of a structure, or of structure and premises in combination, exists at the effective date of adoption or amendment of this Zoning Code, that would not be allowed in the district under the terms of this Zoning Code, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

   A.   No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.

   B.   Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this Zoning Code, but no such use shall be extended to occupy any land outside such building.

   C.   If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use provided that the Board of Adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the Board of Adjustment may require appropriate conditions and safeguards in accord with the provisions of this Zoning Code.

   D.   Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed.

   E.   When a nonconforming use of a structure, land, or structure and land in combination, is discontinued or abandoned for 18 consecutive months, the structure thereafter shall not be used except in conformance with regulations of the district in which it is located.

   F.   Where nonconforming use status is applied to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.

7.   Repairs or Maintenance. On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 18 consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring or plumbing, to an extent not exceeding 10 percent of the current replacement value of the building, provided that the cubic content of the building as it existed at the time of passage or amendment of this chapter is not increased. Nothing in this chapter shall be deemed to prevent the strengthening of or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

8.   Uses Under Exception Provisions Not Nonconforming Uses. Any use for which a special exception is permitted as provided in this chapter shall not be deemed a nonconforming use, but shall without further action be deemed a conforming use in such district.