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

1.

Lots and uses of land,

2.

Buildings and structures,

3.

Uses of land and buildings in combination, and

4.

Characteristics 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 amendments. It is the intent of this ordinance to permit these nonconformities to continue under regulations contained herein until they are removed, but not to encourage their survival. It is further the intent of this ordinance that such nonconformities shall not be enlarged upon, expanded or extended, nor be used as ground for adding other buildings and structures or uses prohibited elsewhere in the same district.

Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. No nonconforming use of land or buildings, nor any nonconforming structure shall be enlarged, changed, altered, or repaired, except in conformance with the regulations contained in this section.

Any use, lot, or structure which does not conform to the regulations of the zoning district in which it is located, is nonconforming when:

1.

The use, lot, or structure was in existence and lawfully operating on the date of the passage of this ordinance, and has since been in regular and continuous use; or

2.

The use, lot, or structure is lawful at the time of the adoption of any amendment to this ordinance, but because of the amendment, no longer complies with applicable regulations; or

3.

The use, lot, or structure was in existence at the time of annexation to the city and has since been in regular and continuous use.

In any district in which residential, commercial, or industrial buildings are permitted, buildings may be erected on any single lot of record which was recorded prior to the effective date of this ordinance

1.

This provision shall apply even though such lot or lots fail to meet the minimum requirements for area, width, or both, as governed by the applicable area regulations for that particular zoning district; however, all other provisions of the applicable zoning district area regulations shall apply.

2.

Primary structures on existing residential lots for which a preliminary plat or final plat have been approved prior to the adoption of this ordinance shall not be affected by the area requirements herein, but shall be governed by the area requirements that were in effect at the time the preliminary or final plat was approved.

(Ord. No. 2002-19, § 1, 10-15-02; Ord. No. 2003-03, § 1, 4-1-03; Ord. No. 2003-14, § 1, 12-2-03)

Where at the time of passage of this ordinance lawful use of land exists which would not be permitted by the regulations imposed by this ordinance, 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 same 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 is deemed to be abandoned for any reason for a period of more than six months, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.

Where a lawful building 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 building, such building may be continued so long as it remains otherwise lawful, subject to the following provisions:

1.

No such nonconforming building may be enlarged or altered in a way which increases its nonconformity, but any building or portion thereof may be altered to decrease its nonconformity or to comply with city building codes.

2.

Should such nonconforming building or nonconforming portion of a building be destroyed by any means to an extent of more than 50 percent of its replacement cost at the time of destruction, or 50 percent of the area of the structure, it shall not be reconstructed except in conformity with the provisions of this ordinance, or when approved by the board of adjustment, after public hearing thereon, when the board's findings, having due regard for the property rights of persons affected, were considered in the light of public welfare and the character of the area surrounding the nonconforming building and the conservation and protection of property.

3.

Should such building be moved for any reason for any distance whatever, it shall thereafter conform to the regulations of the district in which it is located after it is moved.

4.

Structures existing prior to the effective date of this ordinance, which were conforming at that time, are exempt from the exterior masonry requirement contained in article 6, Zoning District.

5.

Enclosed garage exemption. All existing residential units existing at the effective date of this ordinance, which are located in the Carport Overlay District, shall be exempt from the requirement to have two enclosed parking spaces.

(Ord. No. 2003-03, § 1, 4-1-03; Ord. No. 2003-14, § 1, 12-2-03)

If lawful use involving individual buildings exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in a particular 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 building 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 building to a use permitted in the district in which it is located, or to comply with city building codes.

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, but no such use shall be extended to occupy any land outside such building.

3.

If no structural alterations are made, except as required by the city's building codes, any nonconforming use of a building, or building and premises, may be changed to another nonconforming use provided that the board of adjustment, 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 board of adjustment may require appropriate conditions and safeguards in accord with the provisions of this ordinance.

4.

Any building 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 building is discontinued or abandoned for six consecutive months, the building shall not thereafter be used except in conformity with the regulations of the district in which it is located.

6.

Where nonconforming use status applied to a building and premises in combination, removal or destruction of the building 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 time of destruction.

7.

Where nonconforming use status applies to a conforming building, such use shall be immediately terminated upon transfer to another ownership or lease.

On any nonconforming building or portion of a building 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 50 percent of the current replacement cost of the nonconforming building or nonconforming portion of the building, as the case may be; provided that the cubic content existing when it became nonconforming shall not be increased.

If a nonconforming 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 duly 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.

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.

A nonconforming use of any building or structure which has been discontinued shall not thereafter be returned to any nonconforming use. A nonconforming use shall be considered discontinued when:

1.

It has been replaced with a conforming use; or

2.

Such building or structure is or hereafter becomes vacant and remains unoccupied or out of use for a continuous period of six months, or the equipment and furnishings of the nonconforming use have been removed from the premises and have not been replaced within such six-month period; or

3.

The intention of the owner to permanently discontinue the use is apparent.

Changing to a more restricted or less intensive nonconforming use that lessens the extent of the original nonconformity may be permitted by the board of adjustment.

A.

Time limitation for registration. The operator, owner, or owners of all nonconforming uses of land or structures shall, within six months of the effective date of this ordinance, register such nonconforming use with the building official. The building official shall issue a temporary certificate of occupancy which shall state specifically wherein the nonconforming use or structure differs from the provisions of this ordinance and the date upon which the temporary certificate of occupancy shall expire.

B.

Failure to register. Uses and structure not registered within 24 months of the effective date of this ordinance shall be required to conform totally to this ordinance prior to issuance of a building permit, or certificate of occupancy in the future.

C.

Application for extension of period of nonconformity. In order to allow recoupment of investment, within six months of the effective date of this ordinance, an owner of land upon which a nonconforming use or structure is maintained may request an extension of the period of nonconformity beyond the time limits set forth in section 4-12 of this ordinance. Such request shall be filed with the building official and shall be heard by the board of adjustment. No investments made after the effective date of this ordinance may be considered as recoupable investment. The applicant shall supply such information as is requested by the building official or the board of adjustment. The board may continue any hearing on an application in order to study the matters pertaining to the application in order to fairly determine whether an extension of time is reasonable and necessary and to achieve the intent and purposes of this ordinance to require premises to conform to the regulations prescribed herein.

It is the declared purpose of this ordinance that nonconforming uses be eventually discontinued and the use of the premises be required to conform to the regulations prescribed herein, having due regard for the investment in such nonconforming uses. Nonconforming uses shall be discontinued in the following manner unless the board of adjustment has granted an application for extension of the period of nonconformity:

A.

Nonconforming uses not conducted within a building. Any nonconforming use not conducted within a building shall be discontinued within two years from the date this ordinance shall become effective.

B.

Nonconforming uses conducted partially within a building. If a nonconforming use conducted partly within a building and partly without a building is registered within six months of the effective date of this ordinance, such use shall be discontinued within five years from the date this ordinance shall become effective. Such uses not timely registered shall be discontinued within two years from the date this ordinance shall become effective.

C.

Nonconforming uses conducted wholly within a building. If a nonconforming use conducted wholly within a building is registered within six months of the effective date of this ordinance, such use shall be discontinued within ten years from the date this ordinance shall become effective. Such uses not timely registered shall be discontinued within two years from the date this ordinance shall become effective.

A.

Nonconformities in the SBOD.

1.

Discontinuance. Any nonconforming use of land which is located in the SBOD, described in section 7-4 hereof, shall be discontinued no later than December 18, 2028, unless otherwise exempted.

2.

Residential exception. The use of land or a building as a residence shall not be subject to this automatic amortization period.

B.

Appeal. Any owner of such a nonconforming use may appeal to the board of adjustment to allow an extension of the amortization period.

(Ord. No. 2019-22, § 1, 11-5-19)

A.

Determination. The owner of a nonconforming use subject to automatic amortization pursuant to this article 4 may appeal to the board of adjustment to allow an extension of the amortization period. Application shall be made to the board of adjustment on forms provided by the city and shall be filed with the city secretary's office accompanied with the applicable filing fee established in the city's fee schedule.

B.

Public hearing. The board of adjustment shall conduct a hearing for the purpose of determining whether an alternate date certain for termination of the nonconforming use is required based upon the criteria set forth in this section 4-14. Prior notice of such hearing shall be given to the property owner.

C.

Effective date. The alternate date, if required based upon evidence supporting the criteria set forth in this section 4-14, established for termination of the nonconforming use shall give the property owner a reasonable opportunity to recover its investment in the nonconforming use from the time such use became nonconforming.

D.

Recoupment of investment. The board of adjustment shall measure the reasonableness of the opportunity for recoupment of the property owner's investment by conditions existing at the time such use became nonconforming.

E.

Factors. The following factors shall be considered by the board of adjustment in determining an alternate amortization period:

1.

The owner's capital investment in structures, fixed equipment, and other assets that cannot reasonably be used in conformance with the zoning district regulations (excluding inventory and other assets that may be feasibly transferred to another site) made on the property before the time the use became nonconforming. Costs of replacements, improvements or additions made after the use became nonconforming shall not be included. Costs of the land or structures that reasonably can be used for a conforming use shall not be included.

2.

Any costs that are directly attributable to the establishment of a compliance date, including demolition expenses and relocation expenses.

3.

Recovery of investment, including net income and depreciation, and any profit or loss realized on the investment.

4.

General character of the neighborhood in proximity to the nonconforming use and the necessity for all property within the city to conform to the regulations of the zoning ordinance.

F.

Compliance. Should the board of adjustment establish an alternate compliance date for a nonconforming use, the use must cease operations on or before that date and it may not operate thereafter except in compliance with the applicable zoning district regulations. In the event the board of adjustment denies the application for an alternate compliance date, the original date established pursuant to the applicable provisions of this article 4 shall apply and the use must cease operations on or before that date and it may not operate thereafter except in compliance with the applicable zoning district regulations.

(Ord. No. 2019-22, § 1, 11-5-19)