Red Oak City Zoning Code
ARTICLE 4
NONCONFORMING USES
§ 1 GENERAL.
4.1.1
Intent
Within the districts established by this Ordinance or amendments thereto that may later be adopted, there exist lots, structures, and uses of land and structures which were lawful before this Ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this Ordinance or future amendments. It is the intent of this Ordinance to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this Ordinance to be incompatible with permitted uses in the districts involved. It is further the intent of this Ordinance that a nonconforming structure or use or yard requirement shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere within the same district.
4.1.2
Existing Building Permits and Projects
To avoid undue hardship, nothing in this Article shall be deemed to require a change in the plans, construction, or designated use of any building or land development project for a use which is lawful at the time of the application for which a building permit was applied for prior to the effective date of this Ordinance and the construction is completed before the permit expires. The permit shall not be renewed or extended without all other conditions of this Article having been met.
4.1.3
Size Nonconformity of Lots of Record
In any district in which dwelling units are a permitted use, notwithstanding limitations imposed by other provisions of this Ordinance, a single-family dwelling or commercial building and customary accessory buildings may be erected on any single lot existing on the effective date of this Ordinance or upon the amendment of this Article where zoning under this Ordinance is otherwise proper. This provision shall apply even though such lot fails to meet requirements for width or area, or both, of the lot shall conform to the regulations for the district in which such lot is located [sic]. A variance of the requirements shall be obtained only through action of the Board of Adjustment.
(Ordinance 07-15 adopted 7/9/07; Ordinance 17-024 adopted 8/14/17)
§ 2 NONCONFORMING USES AND STRUCTURES.
4.2.1
Nonconforming Uses of Land.
Where, at the effective date of adoption or amendment of this Ordinance, a lawful use of land exists that is made no longer permissible under the terms of this Ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following:
A.
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 Article;
B.
A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use;
C.
No 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 Article; and
D.
No additional structures shall be erected in connection with such nonconforming use of land.
4.2.2
Nonconforming Structures
Where a lawful structure exists at the effective date of this Ordinance, May 13, 2002, or the effective date of an amendment to this Ordinance, that could not be built under the terms of this Ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, the structure may be continued so long as it remains otherwise lawful, subject to the following:
A.
The structure may not be enlarged in a way which increases its nonconformity;
B.
The structure may not be altered in a way which increases its nonconformity;
C.
Should such structure be moved for any reason for any distance whatsoever, it shall thereafter be required to conform to the regulations of the district in which it is located after it is moved.
4.2.3
Nonconforming Use of Structures
If a lawful use of a structure exists that would not be allowed in the district under the terms of this Ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following:
A.
No existing structure devoted to a use not permitted by this Ordinance 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.
A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use.
C.
Any nonconforming use may be extended throughout any parts of a structure which were manifestly arranged or designed for such use at the time of adoption or amendment of this Article, but no such use shall be extended to occupy any land outside such structure.
4.2.4
Nonconforming Mobile Home or HUD-Code Manufactured Homes Used as Dwelling
A.
The use of a mobile home or HUD-Code manufactured home previously legally permitted and occupied as a residential dwelling, which no longer conforms to the requirements of this Ordinance shall be nonconforming, and may be continued in accordance with this Subsection.
B.
A mobile home occupied for residential use may be replaced with a HUD-Code manufactured home, in compliance with all development requirements except minimum living space requirements.
C.
A nonconforming HUD-Code manufactured home may not be replaced with a mobile home or another HUD-Code manufactured home, but the Board of Adjustment may permit the expansion of a HUD-Code manufactured home, not to exceed twenty-five percent (25%) of the existing floor area.
4.2.5
Nonconforming Residential District Driveways
If a lawful parking surface existed prior to the adoption of the City Zoning Ordinance previously adopted on July 9, 2007, Ordinance No. 7-15; the lawful parking surface may be continued so long as it remains otherwise lawful subject to the following:
A.
Must be maintained for vehicular traffic only and not otherwise used for outside storage in violation of the Code of Ordinances;
B.
The residential owner may use existing driveway material for the maintenance and repair of the current driveway. The owner may choose to improve the driveway with material determined by the Administrative Official to be an upgraded material, or higher in quality than the original material.
C.
Shall not expand the driveway, approach or area beyond the original parking surface area.
(Ordinance 07-15 adopted 7/9/07; Ordinance 17-024 adopted 8/14/17)
§ 3 EXCEPTIONS.
4.3.1
Repairs and Maintenance
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 twenty-five percent (25%) of the current replacement value of the building, provided that the cubic content of the building, as it existed on the effective date of this Ordinance or upon the effective date of an amendment to this Ordinance, shall not be increased.
4.3.2
Unsafe Building
A.
If a building or portion of a building containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any authorized City official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.
B.
Nothing in this Ordinance 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.
4.3.3
Special Exception Uses/Specific Use Permits: Not Nonconforming Uses
A.
Any use for which a special exception or specific use permit is granted pursuant to this Ordinance shall not be deemed a nonconforming use, but shall, without further action be deemed a conforming use in such district only for the single property granted such special exception or specific use permit.
B.
Any specific use permit heretofore granted by the City Council which was lawfully existing at the effective date of this Code but which is no longer permitted under this Ordinance or amendment thereof shall be considered a nonconforming use and shall be subject to all terms of this Ordinance relating to nonconforming uses, unless the zoning classification under this Ordinance for the property to which the special use attaches allows that particular use. Any specific use permit which has expired or which is not in compliance with the conditions placed upon such use shall not be permitted to continue.
4.3.4
Discontinuance and Abandonment
A.
A nonconforming use under Section 4.2.1, 4.2.2, or 4.2.3, when legally abandoned or, alternatively, discontinued for an extended period, shall not be resumed and any further use shall be in conformity with the provisions of this Ordinance. The City Council has determined that legal abandonment and extended discontinuance are separate, distinct methods by which a nonconforming use right may terminate. Legal abandonment involves the intent of the owner coupled with an act in furtherance of that intent. Extended discontinuance does not involve the intent of the owner but rather the voluntary termination of a use. The City Council has determined that it is in the best interest of the community for nonconforming uses to be brought into conformance with this Ordinance at the earliest reasonable time. If a property owner can voluntarily terminate a nonconforming use for the period identified in extended discontinuance then it is evident that the property owner no longer needs the rights conferred by nonconforming use status. The different time periods of use termination reflect the City Council’s recognition of the different standard of review.
B.
Upon evidence of hardship, the Board of Adjustment shall have the power to extend the time limits in paragraph “A” not to exceed one (1) year.
4.3.5
Abandonment
A.
A nonconforming use shall be considered to be legally abandoned when the following facts exist based upon the evidence available to the Administrative Official:
1.
The owner has expressed or demonstrated, in some manner, an intent to permanently discontinue the nonconforming use; and
2.
When land used for a nonconforming use ceases to be used in a bona fide manner for the nonconforming use for 90 consecutive days; or
3.
A structure designed or arranged for a nonconforming use shall cease to be used in a bona fide manner as a nonconforming use for a period of 90 consecutive days.
B.
Legal abandonment shall be conclusively deemed to have occurred irrespective of the intent of the property owner if the nonconforming use was dilapidated, substandard, or was not maintained in a suitable condition for occupancy during the time periods set forth above.
4.3.6
Extended Discontinuance
A nonconforming use right shall be surrendered, forfeited, and lost under the following circumstances:
A.
When evidence is presented to the Administrative Official that land used for a nonconforming use has ceased to be used in a bona fide manner for the nonconforming use for 180 consecutive days or for a total of 540 days during any three (3) year period; or
B.
When evidence presented to the Administrative Official indicates that a structure designed or arranged for a nonconforming use has ceased to be used in a bona fide manner as a nonconforming use for a period of 180 consecutive days or for a total of 180 days during any 90 day period [sic]; or
C.
When evidence is presented to the Administrative Official showing that a structure designed or arranged for a nonconforming use shall cease to be used in a bona fide manner as a nonconforming use for a period of 90 consecutive days.
4.3.7
Destruction of Nonconforming Use
A.
If a nonconforming structure or a structure occupied by a nonconforming use is destroyed by fire, the elements, or otherwise, it may not be reconstructed or rebuilt except to conform with the provisions of this Ordinance unless the destruction amounts to less than fifty percent (50%) of its fair market value at the time of destruction.
B.
If the destruction is greater than fifty percent (50%) and less than total, the Board of Adjustment may, after a public hearing, authorize repair, taking into consideration the property owner’s circumstances and the effect on surrounding properties.
C.
Where an individual structure or structures are destroyed by more than fifty percent (50%), upon submission by the owner of sufficient evidence to prove that the destruction amounts to less than fifty percent (50%) of the total value of the entire nonconforming use and that the destroyed structure or structures constituted an integral part of the nonconforming use, without which the nonconforming use cannot be profitably operated, the Board of Adjustment may permit the reconstruction of such destroyed structure or structures under conditions which reasonably allow the owner to recoup his original investment.
4.3.8
Reconstructing Single-Family Dwelling
Notwithstanding anything herein to the contrary, a single-family residence which is destroyed shall be permitted to be reconstructed without Board of Adjustment approval regardless of the extent of destruction provided that the construction complies with all current building codes and is commenced within six (6) months of the date of destruction. The failure of the owner to start such reconstruction within six (6) months shall forfeit the owner’s right to restore or reconstruct the dwelling except in conformance with this ordinance.
4.3.9
Obligation to Reconstruct
If the owner of a nonconforming use fails to begin reconstruction of the destroyed structure (when permitted to do so by the terms of this Article) within six (6) months of the date of destruction or approval by the Board of Adjustment, the nonconforming structure or use shall be deemed to be discontinued or abandoned as provided in Sections 4.3.4 and 4.3.6 above.
(Ordinance 07-15 adopted 7/9/07)
§ 4 AMORTIZATION OF A NONCONFORMING USE.
4.4.1
Generally.
In addition to the authority granted the Board of Adjustment by this Ordinance, the Board of Adjustment shall have the power to bring about the discontinuance of a nonconforming use or structure, as defined in Sections 4.2.1, 4.2.2, and 4.2.3, under a plan whereby the owner’s actual investment in the use or structure prior to the time that the use or structure became nonconforming can be amortized within a definite time period.
(Ordinance 07-15 adopted 7/9/07)