Rose Hill City Zoning Code
NONCONFORMING SITUATIONS
§ 154.155 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DIMENSIONAL NONCONFORMITY. A nonconforming situation that occurs when the height, size, or minimum floor space of a structure or the relationship between an existing building or buildings and other buildings or lot lines does not conform to the regulations applicable to the district in which the property is located.
EXPENDITURE. A sum of money paid out in return for some benefit or to fulfill some obligation. Whenever the term is used hereafter, it also includes binding, contractual commitments to make future expenditures, as well as any other substantial changes in position.
LOT. A parcel of land whose boundaries have been established by some legal instrument such as a deed or a recorded map and which is recognized as a separate legal entity for purposes of transfer of title. If a public road crosses a parcel of land otherwise characterized as a LOT by this definition, the land on each side of the public road shall constitute a separate LOT.
NONCONFORMING LOT. A lot existing at the effective date of this chapter or any amendment to it (and not created for the purpose of evading the restrictions of this chapter) that cannot meet the minimum area or lot-width requirements of the district in which the lot is located.
NONCONFORMING PROJECT. Any structure, development, or undertaking that is incomplete at the effective date of this chapter and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.
NONCONFORMING SITUATION. A situation that occurs when, on the effective date of this chapter or any amendment to it, an existing lot or structure or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located. Among other possibilities, a nonconforming situation may arise because a lot does not meet minimum acreage requirements, because structures do not satisfy maximum height or minimum floor-space limitations, because the relationship between existing buildings and the land (in such matters as density and setback requirements) is not in conformity with this chapter, or because land or buildings are used for purposes made unlawful by this chapter.
NONCONFORMING USE. A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable to the district in which the property is located. (For example, a commercial office building in a residential district may be a nonconforming use.) The term also refers to the activity that constitutes the use made of the property. (For example, all the activity associated with running a bakery in a residentially zoned area is a nonconforming use.)
ORDINANCE. This chapter, including any amendments. Whenever the effective date of this chapter is referred to, the reference includes the effective date of any amendment to it.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021)
§ 154.156 CONTINUATION OF NONCONFORMING SITUATIONS.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021) Penalty, see § 154.999
§ 154.157 NONCONFORMING LOTS.
(A) When a nonconforming lot can be used in conformity with all of the regulations (other than the area or width requirements) applicable to the district in which the lot is located, the use may be made as of right. Otherwise, the nonconforming lot may be used only in accordance with a special use permit issued by the Board of Adjustment. The Board shall issue such a permit if it finds that the proposed use is one permitted by the regulations applicable to the district in which the property is located, and the property can be developed as proposed without any significant negative impact on the surrounding property or the public health, safety, or welfare. In issuing the permit authorized by this division (A), the Board may allow by variance deviations from applicable dimensional requirements (such as setback lines and yard size minimum) if it finds that no reasonable use of the property can be made without the deviations.
(B) Whenever this chapter creates a nonconforming lot and the owner of the nonconforming lot also owns land adjacent to it, and a portion of this other land can be combined with the nonconforming lot to create a conforming lot (without thereby creating other nonconformities), the owner of the nonconforming lot, or his or her successor in interest, may not take advantage of the provisions of division (A) above.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021) Penalty, see § 154.999
§ 154.158 EXTENSION OR ENLARGEMENT OF NONCONFORMING SITUATIONS.
(A) Any building which is nonconforming solely because of its encroachment in a required yard area may be extended or enlarged as provided in this section.
(B) Any other activity that causes an increase in the extent of nonconformity of a nonconforming situation shall be unlawful except as provided in this section.
(1) Subject to division (B)(3) below, a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate the use.
(2) A nonconforming use of open land may not be extended to cover more land than was occupied by that use when it became nonconforming, except that a use that involves the removal of natural materials from the lot (e.g., a quarry) may be expanded to the boundaries of the lot where the use was established at the time it became nonconforming, if 10% or more of the earth products had already been removed at the effective date of this chapter.
(3) The volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the equipment or processes used at a location where a nonconforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other divisions of this section occur.
(4) Physical alteration of structures or the placement of new structures on open land are unlawful if they result in:
(a) An increase in the total amount of space devoted to a nonconforming use;
(b) Greater nonconformity with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements; except that existing structures that are nonconforming only in regard to encroachment into setback requirements may be enlarged with the expansion occupying the same degree of encroachment in the required setback yard as the existing structure;
(c) The enclosure of previously unenclosed areas, even though those areas were previously used in connection with the nonconforming activity; except that existing structures that are nonconforming only in regard to encroachment into setback requirements may be enlarged with the expansion occupying the same degree of encroachment in the required setback yard as the existing structure. An area is unenclosed unless at least 75% of the perimeter of the area is marked by a permanently constructed wall or fence.
(5) Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged.
(6) Any structure used for single-family residential purposes and maintained under a nonconforming use status may be enlarged or replaced with a similar structure of a larger size, so long as the replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to yard size and setback requirements. In particular, a mobile home may be replaced with a larger mobile home, a “single-wide” mobile home may be replaced with a “double-wide.” This division (B)(6) is subject to the limitations stated in § 154.160 regarding abandonment and discontinuance of nonconforming situations.
(7) A structure that is nonconforming in any respect or a structure that is used in a nonconforming manner may be reconstructed or replaced if partially or totally destroyed, subject to the following restrictions:
(a) The total amount of space devoted to a nonconforming use may not be increased, except that a larger, single-family residential structure may be constructed in place of a smaller one and a larger mobile home intended for residential use may replace a similar one;
(b) The reconstructed building may not be more nonconforming with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements, and the dimensional nonconformities must be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue the nonconforming use of the building;
(c) The reconstructed building may not enclose areas that were previously unenclosed, even though those areas were used in connection with the nonconforming activity. An area shall be deemed to have been unenclosed unless at least 75% or more of the perimeter of the area contained a permanently constructed wall; and
(d) A building permit is obtained from the Town Administrator or designees within one year from the time the damage or destruction took place.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021) Penalty, see § 154.999
§ 154.159 CHANGE IN KIND OF NONCONFORMING USE.
(A) A nonconforming use may be changed to a conforming use. Thereafter, the property may not revert to a nonconforming use.
(B) A nonconforming use may be changed to another nonconforming use only in accordance with a special use permit issued by the Board of Adjustment. The Board shall issue the permit if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use in operation at the time the permit is applied for. If a nonconforming use is changed to any use other than a conforming use without obtaining a special use permit pursuant to this division (B), that change shall constitute a discontinuance of the nonconforming use, with consequences as stated in § 154.160.
(C) If a nonconforming use and a conforming use, or any combination of nonconforming uses, exist on one lot, the use made of the property may be changed substantially (except to a conforming use), only in accordance with a special use permit issued by the Board of Adjustment. The Board shall issue the permit if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use or combination of uses in operation at the time the permit is applied for.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021) Penalty, see § 154.999
§ 154.160 ABANDONMENT AND DISCONTINUANCE OF NONCONFORMING SITUATIONS.
(A) When a nonconforming use is discontinued for a consecutive period of 180 days, or discontinued for any period of time without a present intention to reinstate the nonconforming use, the property involved may thereafter be used only for conforming purposes, except as provided in division (B) below.
(B) The Board of Adjustment may issue a special use permit to allow a nonconforming use that has been discontinued for more than 180 consecutive days to be reinstated if it finds that the nonconforming use has been discontinued for less than two years, and the discontinuance resulted from factors that, for all practical purposes, were beyond the control of the person maintaining the nonconforming use.
(C) If the principal activity on property where a nonconforming situation other than a nonconforming use exists is discontinued for a consecutive period of 180 days, or discontinued for any period of time without a present intention of resuming that activity, then that property may thereafter be used only in conformity with all of the regulations applicable to the district in which the property is located, unless the Board of Adjustment issues a special use permit to allow the property to be used (for a conforming purpose) without correcting the nonconforming situation. The Board shall issue the permit if it finds that the nonconforming situation cannot be corrected without undue hardship or expense, and the nonconforming situation is of a minor nature that does not adversely affect the surrounding property or the general public to any significant extent.
(D) For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this section, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one apartment in a nonconforming apartment building or one space in a nonconforming mobile home park for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building or mobile home park as a whole is continuously maintained. But if a nonconforming use is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter. And so, if a mobile home is used as a nonconforming use on a residential lot where a conforming residential structure also is located, removal of that mobile home for 180 days terminates the right to replace it.
(E) When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this section begins to run at the effective date of this chapter.
(Ord. passed 7-9-1985; Ord. passed 5-10-1990; Ord. passed 3-9-1999; Ord. passed 8-10-1999; Ord. passed 3-14-2000; Ord. passed 5-9-2000; Ord. passed 9-9-2003; Ord. passed 9-13-2005; Ord. passed 9-12-2006; Ord. passed 6-29-2021) Penalty, see § 154.999