The City includes many areas that have been developed for years. The application of new zoning and subdivision regulations to existing development is likely to create circumstances in which existing development density or intensity, buildings and structures, landscape areas, lot dimensions, parking lots, signs  or uses do not strictly conform to the requirements of the new regulations. As allowed by K.S.A. § 12-771, regarding nonconforming uses, and implied for all other classifications for nonconformities, this Article sets out equitable rules for the completion, restoration, reconstruction, extension, or substitution of individual nonconformities and whether, when, and how the provisions of this Code apply to existing lots or development (including buildings and structures, landscape areas, lots, parking lots, signs, and uses) that are "legally nonconforming" (as defined herein).

Effective on: 8/31/2016

1. Generally. This Article applies to buildings and structures, landscape areas, lots, parking lots, signs, and uses that were lawfully constructed or established, but do not conform to the requirements of this Code. It does not apply to lots of record in the NC district, regardless of their size (such lots are "conforming").
2. Incompatibilities of Nonconformities. Nonconformities are hereby declared to be incompatible with permitted uses, limited uses, and exceptions, and contrary to the intent and provisions of this Code.
3. Expansion of Nonconformities.
   1. It is the intent of this Code to permit these nonconformities to continue until lawful elimination but not to encourage their survival. It is further the intent of this Code that nonconforming uses, buildings or structures, and signs shall not be enlarged, expanded, extended or materially altered, and that their existence shall not be used as a reason for permitting new or additional buildings, structures, or uses of land which do not conform to the provisions of this Code.
   2. The addition or material alteration of signs as accessory structures to a nonconforming use shall be deemed an expansion or material alteration of such use.
4. Unlawful Development or Use. This Article does not authorize or legitimize buildings or structures, landscape areas, lots, parking lots, signs, or uses that were not legally established or constructed. Such buildings and structures, landscape areas, lots, parking lots, signs, or uses are not "legally nonconforming," but instead remain "unlawful," and are subject to all of the provisions of this Code (including enforcement provisions) and any other applicable law.
5. Effect of Article.
   1. Nothing in this Code shall be interpreted to require a change in plans, construction, or designated use of any building in which a development approval was lawfully issued prior to the effective date of adoption or amendment of this Code, provided construction was commenced within the timeframes established in this Code. However, such development approval shall not be extended or renewed, upon expiration, unless construction is commenced and continued pursuant to the terms and requirements of this Code existing at the time the application was submitted and determined complete.
   2. Nothing contained in this Code shall be interpreted to indicate that exceptions are nonconforming if permitted as an exception in the district in compliance with the provisions set out in this Code.
   3. Nothing contained herein shall be construed as limiting the authority of the Board of Zoning Appeals to grant a variance from the provisions of this Code, under appropriate conditions and circumstances.

(Ord. No. 4012, § 1, 7-14-2022) 

Effective on: 7/14/2022

1. Determination. At the time of application for a development approval (e.g., a permit) or request for variance regarding a nonconforming lot, building or structure, landscape area, parking lot, sign, or use, the property owner shall submit sufficient evidence for the Zoning Administrator to determine that such lot, building or structure, landscape area, parking lot, sign, or use was lawfully created or established in accordance with the zoning, subdivision, and other development-related regulations in existence at that time.
2. Certificate. If the evidence submitted indicates the lot, building or structure, landscape area, parking lot, sign, or use was legally established and has since become nonconforming because of the establishment of or amendment to this Code, the Zoning Administrator shall issue a zoning certificate identifying it as a legal nonconformity (see Section 11.2.301, Certificate of Zoning Compliance). A copy of such certificate shall be kept on file.
3. Calculation of the Degree of Nonconformity. In determining the cost of repair or replacement of any building or structure, the Zoning Administrator shall not consider the cost of the land or any items other than the building or structure itself. If the owner or lessee disputes the determination of the Zoning Administrator as set forth in this Article, it shall be communicated in writing within 30 days from the date of receipt of the Zoning Administrator's determination and within 30 days thereafter provide a written report of the damage assessment from a qualified inspector.

Effective on: 8/31/2016

1. Generally. There are six general types of nonconformities: buildings and structures, landscape areas, lots, parking lots, signs, and uses.
2. Nonconforming Buildings and Structures.
   1. Buildings. A nonconforming building is a building that was lawfully constructed prior to the effective date of this Code (or amendment hereto) that does not conform to the height, setback, building scale, spacing, and / or design standards that are applicable to the same type of building in the district in which the building is located.
   2. Structures. A nonconforming structure is a structure other than a building that was lawfully constructed prior to the effective date of this Code (or amendment hereto) that does not conform to the standards that are applicable to the same type of structure in the district in which the structure is located. The following are illustrative examples of nonconforming structures:
      1. Fences or garden walls that do not comply with the height, setback, or materials standards of this Code; and
      2. Wireless telecommunications facilities that do not comply with the applicable regulations of this Code.
3. Nonconforming Landscape Areas.
   1. ​​​​Nonconforming landscape areas is landscaping (or lack thereof) that does not conform to the landscape area or planting requirements of Chapter 4, Landscaping and Buffering (including, but not limited to, development landscaping and bufferyard requirements), or other provisions of this Code that require the designation of open space or landscape surface areas or the buffering of uses (e.g., see Division 2.2.300, Compatibility Standards for Limited Uses and Exceptions).
   2. Nonresidential, mixed use, and multiple-family residential dwellings on parcels that were lawfully developed but do not include the required landscape surface ratio or open space ratio that is required after the effective date of this Code or amendment hereto are also nonconforming with respect to landscaping.
4. Nonconforming Lots. Nonconforming lots are lots that were lawfully created before the effective date of this Code, or amendments hereto, but which no longer comply with the lot width, frontage, depth, or area requirements of this Code, as set out in Chapter 3, Density, Intensity, Bulk, and Scale.
5. Nonconforming Parking Lots. Nonconforming parking lots refers to parking spaces, parking aisles, and loading spaces that do not conform to the requirements of this Code that are set out in Article 5.2, Parking and Loading, in terms of their number or dimensions.
6. Nonconforming Signs. Any sign located within the City on the effective date of this Code, or amendment thereto, that does not conform to the provisions of Chapter 7, Signs, or, if applicable, Division 2.2.300, Compatibility Standards for Limited Uses and Exceptions, is a “legal nonconforming” sign, provided it also meets the following requirements:
   1. The sign is a permanent sign; and
   2. One of the following apply:
      1. The sign was approved by a sign permit for signs before the effective date of this Code (or amendment hereto), if a sign permits was required under applicable law; or
      2. If no permit was required under applicable law for the sign in question, the sign was in all respects in conformity with the applicable law or conditions of approval immediately prior to the effective date; or
      3. The sign had legal nonconforming status on the effective date of this Code.
7. Nonconforming Uses. A nonconforming use is a use of land that was lawfully established (i.e., it was allowed and legally authorized, if legal authorization was required) on a parcel or lot before the effective date of this Code (or amendment hereto), that is no longer allowed after the effective date of this Code (or amendment hereto). The following uses are legally nonconforming uses:
   1. Permitted Uses. Uses that were lawfully established but are not currently listed as a permitted use in the zoning district in Division 2.2.200, Permitted, Limited, Exception, and Prohibited Uses.
   2. Limited Uses. Uses that are listed as limited uses in the zoning district in Division 2.2.200, Permitted, Limited, Exception, and Prohibited Uses, but were lawfully established without an appropriate permit and do not comply with the applicable standards of Division 2.2.300, Compatibility Standards for Limited Uses and Exceptions.
   3. Exceptions. Uses that are listed as exceptions in the zoning district in Division 2.2.200, Permitted, Limited, Exception, and Prohibited Uses, but were lawfully established without an exception permit. For these uses, the nonconforming use status may be removed by obtaining an exception permit.

(Ord. No. 4012, § 1, 7-14-2022) 

Effective on: 7/14/2022

1. Generally. This Section sets out the standards for when a nonconformity must be terminated or removed, and when it is allowed to be restored after temporary cessation, damage or destruction.
2. Nonconforming Buildings or Structures, and Elements of Buildings or Structures.
   1. Authority to Continue. Any building or structure that is devoted to a use which is permitted in the zoning district in which it is located, but which is located on a lot which does not comply with the applicable intensity of use regulations and/or the applicable yard and height regulations, may be continued so long as it remains otherwise lawful.
   2. Enlargement, Repair and Alterations. Any nonconforming principal building or structure may be enlarged, maintained, repaired or remodeled; provided, however, that no such enlargement, maintenance, repair or remodeling shall either create any additional nonconformity or increase the degree of existing nonconformity of all or any part of such building or structure.
   3. Damage or Destruction.
      1. Damage Greater Than 50 Percent. If any nonconforming building or structure is damaged or destroyed, by any means, by more than 50 percent of its fair market value,  it shall not be restored unless it conforms to the regulations for the zoning district in which it is located or unless such restoration is authorized as an exception by the Board of Zoning Appeals.
      2. Damage Equal To Or Less Than 50 Percent. If a building or structure is damaged equal to or by less than 50 percent of its fair market value or less, it shall not be repaired or restored unless a zoning certificate (see Section 11.2.301, Certificate of Zoning Compliance) is obtained and restoration is begun within one year after the date of destruction and is diligently pursued to completion.
   4. Moving. No nonconforming building or structure shall be moved in whole or in part for any distance whatever, to any other location on the same lot or any other lot unless the entire building or structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved.
   5. Mobile Homes. After the effective date, March 26, 1996, of Ordinance No. 3367, no additional mobile home may be located within City limits. Existing mobile homes removed from their current locations must be replaced by either a site-built building or a manufactured home.
3. Nonconforming Parking and Landscaping.
   1. Authority to Continue. Any parking lots and landscape areas that are installed in compliance with the regulations that were in effect in the zoning district which it is located, but does not comply with the applicable parking lot and landscape area regulations existing on the effective date (or amendment hereto), including Article 5.2, Parking and Loading, Section 3.1.301, Nonresidential and Mixed Use Development Standards, Chapter 4, Landscaping and Buffering, and other applicable parking and/or landscaping standards, may be continued so long as it remains otherwise lawful.
   2. Enlargement, Repair and Alterations.
      1. If an existing building, structure, or use is expanded, additional parking and landscaping shall be required only in proportion to the new area of the building, structure, or use.
      2. If the use of a building or structure changes, resulting in additional demand for parking, additional parking and associated landscaping shall be provided in an amount equal to the difference between the requirements of the former use (not the actual parking provided on-site) and the requirements for the new use, as set out in Division 5.2.100, Parking and Loading Calculations, and Chapter 4, Landscaping and Buffering. However, a permit for the new use may be denied if the available parking is less than 75 percent of the required parking.
      3. If an existing building or structure is redeveloped, parking and landscaping shall be provided as required by Article 5.2, Parking and Loading, and Chapter 4, Landscaping and Buffering.
      4. If a nonconforming use is required to be brought fully into compliance, then parking and landscaping shall also be brought into compliance.
      5. Routine repair and maintenance of nonconforming parking lots and landscape areas is permitted, including necessary non-structural repairs, paint, and incidental alterations which do not extend or intensify the nonconformity; provided however, that the relocation of required parking areas, alterations of parking aisles alignments, etc., is not allowed.
   3. Damage or Destruction. Destroyed or removed parking lots and landscaping shall be replaced with conforming parking lots and landscaping if the destroyed or removed parking lots and/or landscaping did not comply with the requirements of Article 5.2, Parking and Loading, or Chapter 4, Landscaping and Buffering.
4. Nonconforming Lots.
   1. Exception. All lots within the NC district that were lawfully created before the effective date of this Code are conforming, regardless of their dimensions.
   2. Authority to Continue. A legal lot of record that does not meet district requirements with respect to lot area or lot width may be built upon if:
      1. Such lot is shown by a recorded plat or deed to have been owned separately and individually from adjoining tracts of land at a time when the creation of a lot of such size and width at such location would not have been prohibited by any zoning regulations; and
      2. Such lot has remained in separate and individual ownership from adjoining tracts of land continuously during the entire time that the creation of such lot has been prohibited by the applicable zoning regulations; and
      3. The use is permitted in the district in which the lot is located; and
      4. The lot has sufficient frontage on a public street to provide access that is appropriate for the proposed use; and
      5. All yards or height standards are complied with, except that the Zoning Administrator may authorize a reduction of required yards of up to 10 percent, provided that the Zoning Administrator finds that the reduction does not allow a building that would be larger than a building that would be permitted on the minimum conforming lot in the zoning district.
   3. Combination of Lots to Increase Conformity. Where a landowner owns several abutting lots that do not conform to the dimensional requirements of the zoning district in which they are located, they shall be combined to create fully conforming lots or, if full conformity is not possible, they shall be combined if the combination will increase the degree of conformity.
5. Nonconforming Signs or Sign Elements.​
   1. Authority to Continue. Any signs that are installed in compliance with the regulations that were in effect in the zoning district which it is located, but does not comply with the applicable sign regulations existing on the effective date (or amendment hereto), including Chapter 7, Signs, and other applicable sign standards, may be continued so long as it remains otherwise lawful.
   2. Enlargement, Repair and Alterations.
      1. If an element of a sign that causes the sign to be nonconforming is removed, it shall not be replaced, except with a conforming element. For example, if a sign is nonconforming with respect to the size of the manual changeable copy board, and the board is replaced with an electronic changeable copy sign, the electronic changeable copy board cannot exceed the maximum size as set out in Section 7.2.105, Message Centers.
      2. If a nonconforming sign structure is removed for any reason other than routine repair and maintenance, it shall not be replaced unless the replacement sign conforms to this Code.
   3. Damage or Destruction.
      1. A nonconforming sign which has been damaged by fire, wind or other cause in excess of 50 percent of its replacement cost shall not be restored except in conformance with this Code.
      2. Nonconforming signs that are a danger to the public health or safety due to damage or wear shall be removed and shall not be replaced unless the replacement sign conforms to this Code.
   4. Abandonment or Discontinuance. If a nonconforming sign structure does not display any message for a period of 90 days, it shall be removed or brought into conformance with this Code. For the purposes of this standard, a temporary "sock sign" may be used to display a message while a new sign face is being created.
6. Nonconforming Uses.
   1. Authority to Continue. Any lawfully existing nonconforming use of part or all of a building or structure or any lawfully existing nonconforming use of land, not involving a building or structure or only involving a building or structure which is accessory to such use of land, may be continued so long as otherwise lawful.
   2. Ordinary Repair and Maintenance.
      1. Normal maintenance and incidental repair, or replacement, installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring or plumbing, may be performed on any building or structure that is devoted in whole or in part to a nonconforming use.
      2. Nothing in this Code shall be deemed to prevent the strengthening or restoring to a safe condition of a building or structure in accordance with an order of the Chief Building Official who is charged with protecting the public safety and who declares such building or structure to be unsafe and orders its restoration to a safe condition.
   3. Extension. A nonconforming use shall not be extended, enlarged or increase in intensity. Such prohibited activities shall include, without being limited to:
      1. Extension of such use to any building or structure or land area, other than one occupied by such nonconforming use, on the effective date of this Code from which this Section is derived (or on the effective date of subsequent amendments thereto) that cause such use to become nonconforming.
      2. Extension of such use within a building or other structure to any portion of the floor area that was not occupied by such nonconforming use on the effective date of this Code from which the this Section is derived (or on the effective date of subsequent amendments thereto) that cause such use to become nonconforming; provided, however, that such use may be extended throughout any part of such building or other structure that was lawfully and manifestly designed or arranged for such use on such effective date.
   4. Enlargement. No building or structure that is devoted in whole or in part to a nonconforming use shall be enlarged or added to in any manner unless such building or structure and the use of such building or structure shall thereafter conform to the regulations of the zoning district in which it is located.
   5. Damage or Destruction. In the event that any building or structure that is devoted in whole or in part to a nonconforming use is damaged or destroyed, by any means, to the extent of more than 50 percent of its fair market value, such building or structure shall not be restored unless such building or structure and the use of such building or structure shall thereafter conform to all regulations of the zoning district in which it is located or unless such restoration is authorized as an exception by the Board of Zoning Appeals. When such damage or destruction is 50 percent of its fair market value or less, no repairs or restoration shall be made unless a zoning certificate (see Section 11.2.301, Certificate of Zoning Compliance) is obtained, and restoration is actually begun within one year after the date of such partial destruction and is diligently pursued to completion.
   6. Moving. No building or structure that is devoted in whole or in part to a nonconforming use of land shall be moved in whole or in part for any distance whatever, to any other location on the same or any other lot, unless the entire building or structure and the use of such building or structure or the use of land shall thereafter conform to all regulations of the zoning district in which it is located after being so moved.
   7. Abandonment or Discontinuance. When a nonconforming use shall be discontinued or abandoned for a period of 12 consecutive months, such use shall not thereafter be reestablished or resumed, and any subsequent use or occupancy of such land shall comply with the regulations of the zoning district in which such land is located.

Effective on: 8/31/2016

1. Generally. A nonconforming use shall not be changed to another nonconforming use; provided however, that the Board of Zoning Appeals may allow a conversion of a nonconforming use to a "legally conforming use" as set out in this Section.
2. Effect of Change of Use.
   1. If a nonconforming use is changed to a conforming use, the nonconforming use shall not be resumed.
   2. If the use of only a portion of a building or structure or property is changed from a nonconforming use to a conforming use, then the use of that portion of the building or structure or property shall not be changed back to the nonconforming use.
3. Conversion of Nonconforming Use; Substitution.
   1. Purpose. Many nonconforming uses have existed for a period of time, and some may have only recently become nonconforming. In many instances, these nonconforming uses are integral parts of the City's fabric, that is, its character and function, so their continuing existence promotes the City's policy objective of protecting its neighborhoods. In these instances, the classification "nonconformity" and resulting restriction on investment may not be what the community desires. As such, the use may be made conforming (i.e., a legally conforming use) pursuant to this Section in order to remove the stigma associated with the "nonconforming" designation.
   2. Procedure. An exception permit may be granted to make a nonconforming use conforming, if, in addition to the criteria for approval of an exception permit set out in Section 11.2.408, Exception Permits, all of the criteria of this Section are satisfied.
   3. Additional Approval Criteria. The use, as conducted and managed, has minimal nonconformities and has been integrated into the zoning district's overall fabric and function, as evidenced by the following demonstrations:
      1. The neighborhood residents regularly patronize or are employed at said use (for nonresidential uses in or abutting residential neighborhoods).
      2. Management practices eliminate nuisances such as noise, pollution, traffic, sign areas, visitation, light, waste materials, unreasonably congested and non-permitted on-street parking, or similar conflicts; and no increase in these nuisances will occur as a result of becoming conforming.
      3. There is no material history of complaints about the use (a history of complaints is justification for denying the exception permit, unless the conditions of the exception permit will eliminate the sources of the complaints).
      4. If the use is nonresidential, it is licensed in accordance with the applicable ordinances of the City, Ellis County, and any applicable state or federal regulations.
      5. The use has been maintained in good condition and its classification as a nonconformity would be a disincentive for such maintenance.
   4. Conditions. Conditions may be imposed relative to the expansion of bufferyards, fencing, landscape areas, or other site design provisions, or other limitations necessary to ensure that, as a conforming use, the use will not become a nuisance. Such conditions may relate to the lot, buildings, structures, or operation of the use.

(Ord. No. 4012, § 1, 7-14-2022) 

Effective on: 7/14/2022