(a)

Within the districts established by this ordinance or amendments that may later be adopted there exist:

(1)

Lots;

(2)

Structures;

(3)

Uses of land and structures; and

(4)

Character of use;

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 amendment. It is the intent of this ordinance to permit these nonconformities to continue until they are removed, but not to encourage their continuation. It is further the intent of this ordinance that nonconformities 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. However, it is not the intent of this ordinance to permit or encourage the continuation of nonconforming signs within the City of Rochester. Nonconforming signs are regulated by chapter 42 of the Code of the City of Rochester.

(b)

Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. A nonconforming use of land or a nonconforming use of structure and land in combination shall not be extended or enlarged after passage of this ordinance by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be generally prohibited in the district involved.

(c)

To avoid undue hardship, nothing in this ordinance 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 ordinance and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation, demolition, or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.

(a)

In any district in which single-family dwellings are permitted, 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 ordinance, notwithstanding limitations imposed by other provisions of this ordinance. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. 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 requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the board of appeals.

(b)

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 ordinance, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance, and no portion of said parcel be made which creates a lot width or area below the requirements stated in this ordinance.

(c)

Notwithstanding the language of subparagraph (a) and (b) herein, lot splits are allowed so long as the resulting lots conform to all lot dimensions of the original plat. Use and development of such split vacant lot shall conform to the requirements of this section and the zoning district where the lot is located. Existing structures on a lot that is rendered non-conforming as a result of such split shall be deemed to be legal non-conforming structures; however no further expansion or alteration of such structure shall be allowed that would increase the degree of non-conformity of the structure(s) or lot in any aspect. No such split shall be allowed which would result in encroachments from existing structure(s) on one of the lots, into the newly created vacant lot.

(Ord. No. 2016-06, pt. 1, 6-27-2016)

Where at the time of passage of this ordinance lawful uses of land exist which would not be permitted by the regulations imposed by this ordinance, and where such use involves no individual structure with a replacement cost exceeding $1,000.00, the use may be continued so long as it remains otherwise lawful, provided:

(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 ordinance.

(2)

No such nonconforming use 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 this ordinance.

(3)

If any such nonconforming use of land ceases for any reason for a period of more than one year, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.

(4)

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

Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued (except nonconforming signs, which are regulated by [chapter] 42 of the Code of the City of Rochester) 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 to decrease its nonconformity.

(2)

Should such nonconforming structure or nonconforming portion of the structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.

(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.

If lawful use involving individual structures with a replacement cost of $1,000.00 or more, or of structure and premises in combination, exists at the effective date of adoption or amendment of this ordinance 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 provisions:

(1)

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;

(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 this ordinance, by 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, as a special exception, be changed to another nonconforming use, provided that the city planning commission, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the city planning commission may require appropriate conditions and safeguards in accordance with the provisions of this ordinance. Further, if such change is permitted, the new nonconforming use remains a nonconforming use, and the substituted nonconforming use may not thereafter be resumed;

(4)

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

(5)

When a nonconforming use of a structure or structure and premises in combination is discontinued or abandoned for six consecutive months or for 12 months during any three-year period (except when government action impedes access to the premises), the structure or structure and premises in combination shall not thereafter be used except in conformity with the regulations of the district in which it is located;

(6)

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the purpose of this subsection is defined as damage to an extent of more than 50 percent of the replacement cost at the time of destruction;

(7)

Any existing structure devoted to a use not permitted by this ordinance in the district in which it is located may be enlarged, extended, constructed, reconstructed, moved, or structurally altered, if a portion of the use of the structure is to be changed to a use permitted in the district in which it is located; provided, however, the planning commission shall first permit it as a special exception under the terms of this ordinance by making findings that the nonconforming use of the structure has been substantially decreased.

(Ord. No. 2021-03, 4-26-2021)

(a)

On any nonconforming structure or portion of a structure containing a 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 20 percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.

(b)

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized 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.

(c)

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.

Editor's note— Ord. No. 2021-03, adopted April 26, 2021, deleted § 406, which pertained to uses deemed special exceptions not being considered nonconforming and derived from original zoning ordinance material.

(a)

In order to establish a record of lawfully existing nonconforming structures and/or nonconforming uses of structures or land, upon application by the owner, within one year of the passage of this ordinance, the administrative official shall issue a certificate of occupancy for such lawfully existing nonconformance.

(b)

If such certificate of occupancy is not so obtained, the burden of proof of the lawful existence of a nonconforming structure or use shall rest upon the owner.