(a)

It is the intent of this chapter to permit legal nonconforming lots, structures or uses to continue until they are removed but not to encourage their survival.

(b)

It is recognized that there exists within the districts established by this chapter and subsequent amendments, lots, structures and uses of land and structures which were lawful before this chapter was passed or amended which would be prohibited, regulated or restricted under the terms of this chapter or future amendments.

(c)

Such uses are declared by this chapter to be incompatible with permitted uses in the districts involved. It is further the intent of this chapter that nonconforming uses shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

(d)

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 chapter 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 where demolition or removal of an existing building has been substantially begun preparatory to rebuilding such demolition or removal, it shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved and provided further that all work shall be done pursuant to a valid permit.

(Ord. of 10-6-03)

(a)

Nonconforming lots shall be governed by the following regulations:

(1)

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 chapter. This provision shall apply even though such lot fails 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 a variance shall be obtained through approval of the zoning board of appeals.

(2)

In other multi-family or non-residential zoning districts, uses permitted may be constructed on a nonconforming lot of record at the effective date of adoption or amendment of this chapter. This provision shall apply even though such lot fails 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 to yard requirements shall be obtained through approval of the zoning board of appeals.

(3)

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 chapter, the lands involved shall be considered to be an undivided parcel for the purpose of this chapter. No portion of said parcel or lot shall be used or sold which does not meet lot width and area requirements established by this chapter, nor shall any division of the parcel or lot be made which leaves remaining any parcel or lot with width or area below the requirements stated in this chapter.

(b)

Nonconforming sites shall be governed by the following regulations:

(1)

Intent. It is recognized that certain sites do not comply with the current paving, lighting, landscaping and other non-safety related site development requirements. This section is intended to:

a.

Allow for reasonable re-use, maintenance and improvements to these sites that will gradually improve compliance with these requirements.

b.

Permit a proportionate amount of improvements to nonconforming sites relative to the amount of expansion or improvement proposed to the use or building.

c.

Allow the needed flexibility in the regulations to encourage gradual site improvements and increased compliance with the intent of the zoning ordinance requirements.

(2)

Required reviews. This section provides for the conditions under which re-occupancy, improvement and modification to nonconforming sites may occur. It does not replace other reviews and requirements contained elsewhere in this chapter. Therefore, where improvements and modifications are proposed to nonconforming sites, they shall be subject to site plan review according to article XX.

(3)

Standards for review. Applications to improve or modify nonconforming sites shall be reviewed in accordance with article XX for new development, redevelopment, or change of use as listed in section 78-242. Such activity may only be permitted if all of the following standards are met:

a.

General standards.

1.

Expansions to nonconforming structures or buildings comply with section 78-353, nonconforming structures.

2.

Changes to nonconforming uses comply with section 78-354, nonconforming uses of structures and land.

3.

The applicant is proposing reasonable site improvements to the overall site in relation to the scale and construction cost of any proposed building improvements or expansion on site.

4.

The applicant has addressed safety related site issues on the overall site.

5.

The improvements or minor expansion will not increase noncompliance with other site requirements.

b.

Driveways. Driveways that do not conform to current safety design standards, as determined by the city engineer, shall be removed or redesigned to the greatest extent possible. Where required to maintain reasonable access to sites, driveway designs shall be evaluated by the city engineer for conformance with safety standards.

c.

Sidewalks. Whenever modifications or expansion to the building, parking lot or site are proposed, the sidewalks shall be installed along the site frontage and within the interior of the site to provide a safe passageway for pedestrians from the street to the principal building and use on site. Sidewalk designs shall be evaluated by the city engineer for conformance with safety standards.

d.

Parking. Existing parking areas must be in good condition, as determined by the building official or city engineer, and any improvements necessary to provide a safe durable surface have been proposed. For projects involving new development, redevelopment, or change of use, parking areas that are nonconforming in terms of required number of spaces, landscaping, setbacks, lighting or other requirements of this section, shall be brought into full compliance with this section if any of the following occur:

1.

The nonconforming parking area is expanded or altered by an area that is 50 percent or more of the original area.

2.

Twenty-five percent or more of the surface area of the parking area is reconstructed (existing pavement removed and replaced).

3.

Where full compliance is not possible due to existing site conditions, a variance may be requested from the zoning board of appeals.

4.

Whenever re-occupancy is proposed, or the parking area is not proposed to be expanded or reconstructed beyond the percentages noted in 1. and 2. above, then any necessary repairs shall be made to the existing parking lot pavement, as determined by the building official and/or city engineer.

e.

Screening. Whenever modifications are proposed, or any expansion to the building or site proposed, then required screening walls for waste receptacles, fencing of outdoor storage or screening from adjacent residential uses shall be provided.

1.

Where existing screening walls are in disrepair, they shall be improved to a sturdy and attractive condition.

2.

All outdoor storage areas shall be screened from adjacent residential uses, and all waste receptacles shall be screened.

f.

Landscaping. For projects involving new development, redevelopment, or a change of use on sites that are nonconforming by reason of landscaping required by this section, either by required area, materials, or other requirements of this section, the site shall be brought into compliance with this section under the following conditions:

1.

Whenever the size of the nonconforming site (building, parking and outdoor storage) is redeveloped or expanded by an area that is 50 percent or more of the original nonconforming area, all landscaping on the site shall be brought into compliance with this section; or

2.

Whenever 25 percent or more of the surface area of the landscaped area is redeveloped or reconstructed (existing materials and ground cover removed and replaced) the reconstructed portion of the landscape area shall be brought into compliance with this section.

3.

Landscape buffer strips shall be installed between the right-of-way and parking lot per section 78-203.

g.

Lighting. To the greatest extent reasonable, lighting should be brought into compliance with section 78-204. At a minimum, existing lighting must be shielded to prevent off-site glare.

(Ord. No. 2017-10, § 1, 1-2-18)

Editor's note— Ord. No. 2017-10, § 1, adopted Jan. 2, 2018, amended § 78-351 in its entirety to read as herein set out. Former § 78-351 pertained to nonconforming lots—governing regulations, and derived from Ord. of 10-6-03.

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

(1)

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this chapter.

(2)

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 chapter.

(3)

If such nonconforming use of land ceases for any reason for a period of more than six 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 use status shall not apply to the following:

a.

Retail use (One space per 500 sq. ft.) converted to restaurant or medical office (one space per 250 sq. ft.).

b.

Office use (one space per 500 sq. ft.) converted to restaurant or medical office (one space per 250 sq. ft.).

For the above listed conversions, the proposed use shall comply with the parking requirements of subsection 78-270(a)(10).

(Ord. of 10-6-03; Ord. No. 2012-02, § 7, 1-3-12)

Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter 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 continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

Such structures may be enlarged or altered in a way which does not increase its nonconformity.

(2)

Should such structure be destroyed by any means to an extent of more than 60 percent of its market value, it shall be reconstructed only in conformity with the provisions of this chapter.

(3)

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

(4)

Nonconforming structure status shall not apply to the following:

a.

Retail use (One space per 500 sq. ft.) converted to restaurant or medical office (one space per 250 sq. ft.).

b.

Office use (one space per 500 sq. ft.) converted to restaurant or medical office (one space per 250 sq. ft.).

For the above listed conversions, the proposed use shall comply with the parking requirements of subsection 78-270(a)(10).

(Ord. of 10-6-03; Ord. No. 2012-02, § 8, 1-3-12)

If a lawful use of a structure, or of structure and land in combination, exists at the effective date of adoption or amendment of this chapter, that would not be permitted in the district under the terms of this chapter, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

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.

(2)

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

(3)

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.

(4)

When a nonconforming use of a structure, or structure and land in combination, is discontinued or ceases to exist for six consecutive months or for 12 months during any two year period, the structure, or structure and land in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. Structures occupied by seasonal uses shall be excepted from this provision.

(5)

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

(Ord. of 10-6-03)

(a)

On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding 60 percent of the market 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, shall not be increased.

(b)

In calculating whether the cost of repair work exceeds 60 percent of the market value of the building, the cost of roofing, plumbing, electrical wiring or siding shall not be included.

(c)

Nothing in this chapter 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 official charged with protecting the public safety, upon order of such official.

(Ord. of 10-6-03)

Any existing use for which a special exception or a use permitted subject to special conditions 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.

(Ord. of 10-6-03)

There may be a change of tenancy, ownership or management of any existing nonconforming uses of land, of structures or of structures and land in combination.

(Ord. of 10-6-03)