Upon adoption of this chapter and official zoning map, some buildings, structures, lots, and uses may no longer conform to the regulations of the zoning district in which they are located. For this reason, article VIII has been generated to provide the rules, policies and regulations that apply to these buildings, structures, lots, and uses referred to as legal-nonconforming (grandfathered).

(Ord. No. 05-41, § 1, 8-2-05)

A building, structure, or lot which was constructed or is being used without an approved building permit, improvement location permit or approval from the BZA, development review committee, or plan commission is considered illegal-nonconforming. An illegal-nonconforming property shall be subject to actions and penalties allowed by this chapter and all other applicable municipal law and shall be altered to conform with all applicable standards and regulations of this chapter. Further, an illegal-nonconforming building, structure, lot or use is created at the fault of the owner, tenant or property manager.

Legal-nonconforming differs from illegal-nonconforming (illegal) in that the reason for the nonconformance is caused by a change to the zoning ordinance. The building, structure, lot or use has not changed, but due to the ordinance change, the property no longer conforms to the policies and standards of the zoning district in which the property resides. When this situation occurs, the property is deemed legal-nonconforming or another term commonly used is "grandfathered."

(Ord. No. 05-41, § 1, 8-2-05)

(a)

Any continuously occupied, lawfully established structure or building prior to the effective date of this chapter, or its subsequent amendments, that no longer meets the design standards due to the reasons listed below shall be deemed a legal-nonconforming building or structure.

(b)

Legal-nonconforming building(s) or structure(s) no longer meet one or more of the following development standards of the zoning ordinance:

• Front, side and rear yard setbacks,

• Maximum lot coverage,

• Minimum main floor area,

• Minimum finished floor area,

• Height,

• Temporary structures,

• Landscaping,

• Parking,

• Accessory structures, or

• Any other provision of the zoning ordinance that is applicable to the building or structure.

(c)

A legal-nonconforming building or structure may continue provided that it remains the same or fits within the below described tolerances:

(1)

Any legal-nonconforming building(s) or structure(s) shall not be enlarged or altered in a manner that increases its nonconformity but any building(s) or structure(s) or portion thereof may be altered to decrease its nonconformity.

(2)

Any legal-nonconforming single-family residence which is damaged or destroyed by more than 90 percent of its fair market value shall thereafter conform to the regulations of the district in which it is located. The property owner bears the burden to prove fair market value and repair/replacement costs.

(3)

Any legal-nonconforming building or structure, other than a single-family residence, which is damaged or destroyed by more than 60 percent of its fair market value shall thereafter conform to the regulations of the district in which it is located. The property owner bears the burden to prove fair market value and repair/replacement costs.

(d)

If a building or structure is moved for any reason, for any distance, it shall thereafter conform to the provisions of the zoning ordinance.

(Ord. No. 05-41, § 1, 8-2-05)

(a)

All legally established and recorded lots prior to the effective date of this chapter, or its subsequent amendments, that no longer meet the lot standards listed below shall be deemed a legal-nonconforming lot of record. A legal-nonconforming lot of record no longer meets one or more of the following lot standards of this chapter:

• Lot area;

• Lot width;

• Lot depth;

• Lot frontage; or

• Any other provision of the zoning ordinance that is applicable to lots.

(b)

Legal-nonconforming lots of record may be built upon only if the proposed use is permitted and all development standards, other than lot size, of the applicable zoning district of this chapter are met.

(Ord. No. 05-41, § 1, 8-2-05)

Any continuous, lawful use of structures, land, or structures and land in combination established prior to the effective date of this chapter or its subsequent amendments that is no longer a permitted use in the district where it is located shall be deemed a legal-nonconforming use. A legal-nonconforming use may continue provided that it remains otherwise lawful, subject to the following conditions:

(a)

No existing structure devoted to a legal-nonconforming use shall be enlarged, expanded, increased, extended, constructed, reconstructed, moved, or structurally altered unless it:

1.

Complies with subsection (d) for limited and small expansions; or

2.

Changes the use of the structure to a use permitted in the district in which it is located; or

3.

Changes the use to a less intensive nonconforming use and is approved by the director of community development or plan commission.

(b)

No building or structure shall be constructed in connection with an existing legal-nonconforming use of land.

(c)

Any legal-nonconforming use of a structure may be extended throughout any parts of a building which were plainly arranged or designed for such use at the effective date of this chapter or its subsequent amendments, but no such use shall be extended to occupy any land outside the building.

(d)

In the case of a legal-nonconforming use of structure, the structure may be expanded two times only. Each of the two expansions may not exceed ten percent of the existing floor area. The expansion shall conform to all applicable development standards except for landscaping, unless a variance of developmental standards is received from the board of zoning appeals. The expanded structure must comply with the appropriate parking standards required in article VI of this chapter, as determined by the director of community development.

(e)

If no structural alterations are made, a legal-nonconforming use of structure or structure and land in combination may be changed to another legal-nonconforming use, provided that the director of community development shall make specific findings that the proposed use is equally appropriate or more appropriate to the district than the existing legal-nonconforming use. However, if the new use requires more parking area than the previous use, such new use will comply with the appropriate parking standards required in article VI of this chapter, as determined by the director of community development.

(f)

If a legal-nonconforming use is discontinued or abandoned for six consecutive months, except when government action impedes access to the premises, any subsequent use of such land, structure or land and structure shall conform to the provisions of this chapter.

(g)

When a legal-nonconforming use is superseded by a permitted use, it shall thereafter conform to regulations of the district, the legal-nonconforming use may not thereafter be resumed.

(h)

Where a legal-nonconforming use applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming structure of the land. Destruction is defined as damage of more than 66 percent of its fair market value at the time of destruction.

(Ord. No. 05-41, § 1, 8-2-05)

Any sign lawfully existing on the effective date of this chapter, or amendment thereto, that does not conform to all the standards and regulations of this chapter is considered a legal-nonconforming sign. The following applies to legal-nonconforming signs.

(a)

All legal-nonconforming signs shall be kept in good repair, safe, neat, clean and attractive condition. In the event nonconforming signs are not kept in said condition or are demolished by any force whatsoever to the extent of 50 percent or more of the fair market value of the sign structure, said signs shall then be made to conform to the zoning ordinance.

(b)

A sign face shall be removed by the owner or lessee of the premises upon which the sign is located when the business which it advertises is no longer conducted on the premises. If the owner or lessee fails to remove the sign face, the plan commission or director of community development shall give the owner 30 days written notice to remove it. Upon failure to comply with this notice, the plan commission or director of community development may remove the sign face at cost to the property owner or lessee.

(c)

Legal-nonconforming signs which are structurally altered by a change to their height or bulk, relocated, or replaced shall comply immediately with all provisions of the zoning ordinance. Structural alterations which decrease the nonconformance of the sign or are required due to right-of-way acquisition are permitted.

(d)

If a legal-nonconforming sign is discontinued or abandoned for six consecutive months, the sign shall conform to the provisions of this zoning ordinance.

(Ord. No. 05-41, § 1, 8-2-05; Ord. No. 13-13, §§ 2, 3, 7-2-13)

(a)

[Compliance with standards.] Telecommunication facilities in existence on or before September 16, 1998, which do not conform to or comply with the telecommunication facility standards are considered legal-nonconforming if:

(1)

The telecommunications facility was covered by a building permit or variance on September 16, 1998, if one was required under applicable law; or

(2)

If no building permit was required under applicable law for the telecommunications facility in question, the telecommunications facility had legal nonconforming status at such time.

(b)

[Unlawful status.] Any nonconforming telecommunication facility in existence and that does not fit the definition of a legal-nonconforming telecommunications facility is an unlawful telecommunications facility.

(c)

[Annexations.] If land is annexed to the city subsequent to September 16, 1998, any telecommunications facility upon such annexation which does not conform to the telecommunication facility standards at such time shall have legal-nonconforming status if:

(1)

Under applicable federal, state and county regulations, the telecommunications facility was legal in all respects immediately prior to annexation; and

(2)

The annexation was not conditioned upon the removal or modification of the telecommunications facility.

(d)

Loss of legal-nonconforming status. Legal-nonconforming telecommunications facility shall immediately lose its legal nonconforming status if:

(1)

The telecommunications facility, because of improper installation or maintenance, constitutes a threat to public health or safety and remains in such condition after a reasonable time is given to remedy the problem;

(2)

The telecommunications facility is demolished or damaged to the extent of 50 percent or more of its value;

(3)

The permit, variance or condition under which the telecommunications facility was allowed expires; or

(4)

The telecommunications facility is substantially structurally altered so as to prolong its expected life.

On the happening of any one of the above-listed events, the telecommunications facility shall be immediately brought into conformance with the development standards in this chapter or shall be removed.

(e)

Nothing in the telecommunication facility standards shall relieve the owner or user of a legal-nonconforming telecommunications facility or owner of the property on which the legal-nonconforming telecommunications facility is located from any provisions regarding safety, maintenance and repair of the telecommunications facility.

(Ord. No. 05-41, § 1, 8-2-05)

The following applies to legal-nonconforming structures or buildings, and legal-nonconforming uses of structures, or structures and land in combination.

(a)

Work may be done for ordinary repairs or replacement of walls, heating, fixtures, wiring, or plumbing; under the condition that the square footage and volume of usable space existing when the structure became nonconforming shall not be in creased.

(b)

If a structure or portion of a structure were to become unsafe or condemned due to lack of repairs or maintenance, and is declared by an authorized official to be unsafe or condemned due to physical condition; the building or structure shall be restored, repaired or rebuilt with in six months of the declaration. If the improvements have not been made within the six months, all future improvements must conform to all standards and regulations within the zoning ordinance.

(c)

If a building or structure becomes unsafe or unlawful due to physical condition and is razed, the building or structure shall be rebuilt in conformity with the district in which it is located.

(d)

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

(Ord. No. 05-41, § 1, 8-2-05)