Within the districts established by this chapter or amendments that later may be adopted, there exist lots, structures, uses of land and structures and characteristics of use or improvements such as parking or landscaping which were lawful before the ordinance from which this chapter is derived was passed or amended, but which would be prohibited, regulated or restricted under the terms of this chapter or future amendment. It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival.

(Ord. No. 66, § 2, 9-14-2015)

Where, at the time of passage of the ordinance from which this chapter is derived, lawful use of land exists which would not be permitted by the regulations imposed by this chapter, the use may be continued so long as it remains otherwise lawful, provided:

(1)

No such nonconforming use of land 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 the ordinance from which this chapter is derived, or increase its nonconformity by changing its use;

(2)

No such nonconforming use of land shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of the ordinance from which this chapter is derived;

(3)

A use that the ZBA has determined is abandoned following the standards in section 36-249 of this chapter shall not be re-established and any new use must comply with the zoning ordinance.

(4)

No additional structure not conforming to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

(Ord. No. 66, § 2, 9-14-2015)

Where a lawful structure exists or is lawfully under construction at the effective date of adoption or amendment of the ordinance from which this chapter is derived that could not be built under the terms of this chapter by reason of restrictions on area, height, yards, its location on the lot or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered in a manner that does not increase the nonconformity. (See Figure 5-1).

Figure 5-1

(2)

Any such nonconforming structure which has been damaged or destroyed by an act of God in an amount up to and including 75 percent of the value of the structure (as determined by calculating twice the building's assessed value), may be reconstructed providing its reconstruction does not increase its nonconformity. If the structure is damaged beyond this, it must be rebuilt in conformance with the provisions of this chapter.

(3)

Should such nonconforming structure be moved for any reason for any distance whatever, it shall thereafter be required to comply with the requirements of the zoning district in which it is located after it is moved.

(Ord. No. 66, § 2, 9-14-2015)

If a lawful use involving individual structures, or of structure and premises in combination, exists at the effective date of adoption or amendment of the ordinance from which this chapter is derived that would not be allowed in the district under the terms of this chapter, the lawful use may be continued as 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 or by decision of the zoning board of appeals following a public hearing.

(2)

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

(3)

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use provided that the zoning board of appeals, in considering the specific case, shall find that the proposed use is equally conforming or less nonconforming to the district than the existing nonconforming use. In permitting such change, the zoning board of appeals may require appropriate conditions and safeguards in accord with the provisions of this chapter.

(4)

Any structure, or structure and land in combination, in or on which a nonconforming use is replaced by a permitted use, shall thereafter conform to the regulations for the district and the nonconforming use may not thereafter be resumed.

(5)

A use that the ZBA has determined is abandoned following the standards in section 36-249 of this chapter shall not be re-established and any new use must comply with the zoning ordinance.

(6)

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure in itself shall eliminate the nonconforming status of the land. If the structure is rebuilt and this previous use continued, the nonconforming status shall remain.

(Ord. No. 66, § 2, 9-14-2015)

Where a lawful improvement that does not constitute a structure such as parking or landscaping exists or is lawfully under construction at the effective date of adoption or amendment of the ordinance from which this chapter is derived that could not be built under the terms of this chapter such improvement may be continued so long as it remains otherwise lawful, subject to the provisions for addressing such nonconformity within the relevant section including article VI off-street parking and loading facilities and article VIII landscape standards.

(Ord. No. 66, § 2, 9-14-2015)

Repair or replacement of non-bearing walls, fixtures, wiring or plumbing may be performed in or on a nonconforming structure or portion of a structure containing a nonconforming use, provided:

(1)

During any consecutive 12-month period extent of repair or replacement shall not exceed ten percent of this current replacement cost of the nonconforming structure;

(2)

Cubic contents of the structure shall not be increased except in conformance with section 36-241(1); however, 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. No. 66, § 2, 9-14-2015)

Change of ownership between private parties does not remove the nonconformity nor extend time limits.

(Ord. No. 66, § 2, 9-14-2015)

Replacement cost as used in any above provision is the value of the structure as determined by calculating twice the buildings assessed value.

(Ord. No. 66, § 2, 9-14-2015)

(a)

Any nonconforming structure or premises may be made conforming by appropriate action or modifications which cause the structure or premises to fulfill the requirements of the district in which it is located.

(b)

In case of a nonconforming use which is a use designated as a conditional use by this chapter, the nonconforming status may be removed upon issuance of a conditional use permit after the appropriate action has been taken in accordance with the provisions of this chapter. It shall be the responsibility of the owner or person requesting the conditional use permit to initiate the request in accordance with this chapter.

(Ord. No. 66, § 2, 9-14-2015)

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

(Ord. No. 66, § 2, 9-14-2015)

If the planning department identifies a legal nonconforming use that they believe has been abandoned, they shall submit the property to the ZBA for a determination of abandonment. The ZBA shall hold a public hearing, following notice as outlined in section 7.22.08 of this notice. The ZBA shall determine whether or not intent to abandon the nonconforming use was demonstrated based on a preponderance of the following factors.

(a)

Reports such as from the building inspection or health department indicating the property is or has not been suitable for occupation.

(b)

Disconnection of utilities.

(c)

Evidence that the use was relocated to a new site.

(d)

Evidence of a "going out of business" sale.

(e)

Signs advertising the business has been removed.

(f)

The use has been discontinued for 12 consecutive months (1 year), except where government action such as road construction has prevented access to the premises, or where a clear intent to discontinue has not been demonstrated.

(g)

Removal of the equipment or fixtures necessary for the operation of the nonconforming use.

(h)

Request by the property owner for changes in their property tax designation inconsistent with the nonconforming use.

(i)

Other actions by the property owner or lessee that demonstrates an intent to abandon the nonconforming use.

(Ord. No. 66, § 2, 9-14-2015)