A.   Intent: The adoption and amendment of the UDO text and map, beginning with the adoption of the City's first UDO has resulted in some lots, uses and structures becoming nonconforming (i.e., established in compliance with regulations in effect at the time of their establishment, but prohibited under subsequently adopted regulations). The nonconformity regulations of this chapter are intended to explain the effect of this nonconforming status and help differentiate nonconformities, which have legal status under this UDO, from zoning violations, which are illegal and subject to penalties and enforcement action. The regulations of this chapter are also intended to:

      1.   Recognize the interests of landowners in continuing to use their property for uses that were lawfully established;

      2.   Promote maintenance, reuse and rehabilitation of existing buildings; and

      3.   Place reasonable limits on nonconformities that have the potential to adversely affect surrounding properties.

   B.   Authority To Continue: Any nonconformity that existed on the effective date specified in section 10-1-3 of this title or any lot, structure use or situation that becomes nonconforming upon adoption of any amendment to this UDO or any amendment of the zoning map subsequent to the effective date specified in section 10-1-3 of this title may be continued, subject to the regulations of this chapter.

   C.   Determination Of Nonconforming Status:

      1.   The burden of proving that a nonconformity exists (as opposed to a UDO violation) rests entirely with the subject owner.

      2.   The Zoning Administrator is authorized to determine whether reliable evidence of nonconforming status has been provided by the subject owner.

      3.   Building permits, zoning clearance reports, lawfully recorded plats, lawfully recorded instruments of conveyance, aerial photography owned by a governmental agency and other official government records that indicate lawful establishment of the use, lot or structure constitute conclusive evidence of nonconforming status. If such forms of conclusive evidence are not available, the Zoning Administrator is authorized to consider whether other forms of evidence provided by the owner are reliable and adequate to document nonconforming status. Common examples of evidence that may be determined to be reliable and adequate include:

         a.   Professional registrations or business licenses;

         b.   Utility billing records;

         c.   Rent records;

         d.   Advertisements in dated publications;

         e.   Listings in telephone or business directories; and

         f.   Notarized affidavits affirming the date of lawful establishment of the use or structure.

      4.   The Zoning Administrator's determination of nonconforming status may be appealed in accordance with section 10-15-14 of this title.

   D.   Repairs And Maintenance:

      1.   Repairs and normal maintenance necessary to keep a nonconformity in sound condition are permitted unless the work increases the extent of the nonconformity or is otherwise expressly prohibited by this UDO.

      2.   If a nonconforming structure or a structure occupied by a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and a final order of vacation or demolition is entered by any duly authorized official by reason of physical condition, it may not thereafter be used, restored, or repaired, or rebuilt except in conformity with the provisions of the zoning district in which it is located.

      3.   Nothing in this chapter is intended to prevent nonconformities from being structurally strengthened or restored to a safe condition in accordance with an order from a duly authorized public official.

   E.   Change Of Tenancy Or Ownership: Nonconforming status runs with the land and is not affected by changes of tenancy, ownership or management. (Ord. 2018-16, 12-4-2018)

   A.   Description: A nonconforming lot is a lot that does not comply with the applicable minimum lot area, minimum lot width or minimum street frontage requirements of the subject zoning district and that meets at least one of the following criteria:

      1.   The lot was a lot of record on or before January 1, 1988;

      2.   The lot is located within a subdivision approved by the Planning Commission; or

      3.   The lot is a lot of record for which a recorded instrument of conveyance bears the endorsement of the Planning Commission.

   B.   Use Of Nonconforming Lots: Buildings and uses allowed by the subject zoning district regulations may be established on nonconforming lots, subject to compliance with other lot and building regulations of the district and applicable use regulations. (Ord. 2018-16, 12-4-2018)

   A.   Description: A nonconforming structure is a structure, other than a sign, that was lawfully established but that no longer complies with applicable setback, coverage or height regulations because of the adoption or amendment of the UDO after the structure was established.

   B.   Use: A nonconforming structure may be used for any use allowed in the zoning district in which the structure is located, including a lawfully established nonconforming use.

   C.   Movement: A nonconforming structure may be moved in whole or in part to another location on the same lot only if the movement or relocation does not create additional or new nonconformities. A nonconforming structure may be moved to another lot only if the structure would comply with the zoning regulations that apply to that (relocation) lot.

   D.   Alterations, Enlargements And Expansions: Alterations, including enlargements and expansions, are permitted if the proposed alteration or expansion complies with all applicable lot and building regulations and does not increase the extent of the nonconformity. A building with a nonconforming street setback, for example, may be expanded to the rear as long as the rear expansion complies with applicable rear setback regulations and all other applicable lot and building regulations. Horizontal and vertical extensions of an exterior wall that is nonconforming with regard to applicable setbacks may be approved in accordance with the special exception procedures of section 10-15-12 of this title, provided the extensions are not located closer to the lot line than the existing structure.

   E.   Restoration Or Re-Establishment Of Damaged Or Destroyed Structures:

      1.   If a nonconforming structure is damaged or partially destroyed by any means to the extent of fifty percent (50%) or less of its replacement cost at time of damage it may be restored as a nonconforming structure.

      2.   If a nonconforming structure is damaged or partially destroyed by any means to the extent of more than fifty percent (50%) of its replacement cost at time of damage, it may be restored as a nonconforming structure only if approved in accordance with the special exception procedures of section 10-15-12 of this title. In order to approve a special exception for re-establishment of a nonconforming structure, the Board of Adjustment must find that restoration as a conforming structure cannot reasonably be made in view of the nature and extent of the nonconformity and the nature and extent of the damages.

      3.   Re-establishment as a nonconforming structure may not increase the extent of nonconformity, except that the Board of Adjustment is authorized to approve a special exception for building additions that increase the extent of nonconformity if the Board of Adjustment determines that such additions:

         a.   Do not increase the habitable or leasable floor area of the building; and

         b.   Are required to be provided because of Building or Energy Code amendments adopted after construction of the original building.

      4.   In all cases, any permits required to restore the damaged structure must be obtained within two (2) years of the date of damage. If required permits are not obtained within two (2) years, the structure's nonconforming status is lost. (Ord. 2018-16, 12-4-2018)

   A.   Description: A nonconforming use is a use that was lawfully established in accordance with all zoning regulations in effect at the time of its establishment but that is no longer allowed by the use regulations of the zoning district in which the use is located. Lawfully established uses that do not comply with separation distance (spacing) requirements are also deemed to be nonconforming uses.

   B.   Change Of Use:

      1.   A nonconforming use in a Residential Zoning District may be changed only to a use that is allowed in the subject zoning district. Once changed to a conforming use, the nonconforming use may not be re-established.

      2.   A nonconforming use located in a zoning district other than a Residential Zoning District, may be changed to a use that is allowed in the subject zoning district, in which case the nonconforming use may not be re-established. A nonconforming use located in a zoning district other than a Residential Zoning District, may be changed to another nonconforming use only if approved in accordance with the special exception procedures of section 10-15-12 of this title. The change of a use to another use included within the same use category does not constitute a "change of use" within the meaning of this section. In order to approve a special exception for a nonconforming use substitution, the Board of Adjustment must find that the proposed use substitution will not result in any increase in adverse impacts on the surrounding area when compared to the previous nonconforming use of the property. In making such a determination, the Board of Adjustment must consider all of the following factors, as applicable:

         a.   Traffic to and from the site;

         b.   Hours of operation;

         c.   Outdoor display, storage and work activities; and

         d.   Other factors likely to have an effect on the surrounding area.

   C.   Expansion Of Use: A nonconforming use of a portion of a building may be expanded or extended into the remaining portions of the building if the Zoning Administrator determines that the areas of the building in which the expansion is proposed were manifestly arranged and designed for the use. Nonconforming use may not be expanded or extended in any other way unless the expansion reduces or eliminates the nonconformity.

   D.   Movement: A nonconforming use may be moved in whole or in part to another location on the same lot only if the movement or relocation does not create additional or new nonconformities. A nonconforming use may be moved to another lot only if the use would comply with the zoning regulations that apply to that (relocation) lot.

   E.   Loss Of Nonconforming Status:

      1.   If a structure containing a nonconforming use is damaged or partially destroyed to the extent of more than fifty percent (50%) of its replacement cost at time of damage, the nonconforming use may be re-established only if approved in accordance with the special exception procedures of section 10-15-12 of this title. In order to approve a special exception for re-establishment of a nonconforming use, the Board of Adjustment must find that re-establishment will not result in any increase in adverse impacts on the surrounding area when compared to the previous nonconforming use of the structure. In making such a determination, the Board of Adjustment must consider all of the following factors, as applicable:

         a.   Traffic to and from the site;

         b.   Hours of operation;

         c.   Outdoor display, storage and work activities; and

         d.   Other factors likely to have an effect on the surrounding area.

      2.   If a nonconforming use is changed to a conforming use, no matter how short the period of time, all nonconforming use rights are lost and re-establishment of the nonconforming use is prohibited.

      3.   If a nonconforming use of a building is discontinued for six (6) consecutive months or for twelve (12) months during any 4-year period, the nonconforming use may not be re-established. Periods of time when governmental action impedes access to or the use of the premises are not counted as periods of discontinuance.

   F.   Nonconforming Use Of Unimproved Land: Nonconforming uses of unimproved land are land uses and activities that meet the definition of a nonconforming use but that include structures that are all accessory or incidental to the use and in the aggregate do not cover more than ten percent (10%) of the lot area devoted to the nonconforming use. Common examples include storage yards, construction debris sites, used vehicle sales lots, vehicle impound yards, auto wrecking, junkyards, and similar open-air uses. Nonconforming uses of unimproved land are subject to the nonconforming use regulations of this section, except as modified by the following specific regulations:

      1.   No nonconforming use of unimproved land may be changed to another nonconforming use, nor enlarged, increased or moved to another portion of the lot, nor extended to occupy a greater area of land than was occupied at the time that the use became nonconforming.

      2.   No additional structure (other than fences) may be erected in connection with a nonconforming use of unimproved land.

      3.   If any nonconforming use of unimproved land ceases for any reason for a period of more than thirty (30) days, (except when government action impedes access to or use of the premises) any subsequent use of such land must conform in all respects to the regulations of the zoning district in which it is located. (Ord. 2018-16, 12-4-2018)

   A.   Description: A nonconforming development feature is any aspect of a development - other than a nonconforming lot, nonconforming structure, nonconforming use or nonconforming sign - that was lawfully established in accordance with zoning regulations in effect at the time of its establishment but that no longer complies with one or more applicable zoning regulations. Common examples are off-street parking areas that contain fewer spaces than required by current regulations and sites that do not comply with current landscaping, screening or lighting regulations.

   B.   General: Nonconforming development features may remain except as otherwise expressly stated in this UDO, but the nature and extent of nonconforming development features may not be increased. (Ord. 2018-16, 12-4-2018)