(a)

Within the City of Sanibel there exist lots, structures, and uses of land or land and structures which were lawful when established, but which have become prohibited or restricted under the terms of the Sanibel Plan or this Land Development Code, or amendments to them. It is the intent of this Land Development Code to permit these nonconformities to continue until they are eventually removed, but except as to most nonconforming uses, not to require them to be removed as the result of a disaster, and to allow them to be built back (their reconstruction) after a disaster, subject to reasonable restrictions. It is the intent of the Land Development Code that property owners not suffer the loss of a dwelling unit or a reduction in unit size as the result of a natural disaster and that nonconforming uses can be reestablished if the building they occupy is built back after a natural disaster.

(b)

It is the further intent of this Land Development Code that a nonconformity shall not be enlarged upon, expanded, intensified, or extended, nor be used as a basis for adding other structures or uses prohibited within the district.

(c)

It is the intent of this Land Development Code to prohibit the number of lawfully existing dwelling units or the existing floor area of a substantially damaged building to be increased, unless the reconstruction and new development fully comply with the requirements of this Land Development Code, including the maximum density permitted in accordance with the Development Intensity map of the Sanibel Plan.

(d)

It is the further intent that, in the event of a major and general natural disaster, the city manager be enabled and encouraged to make the determinations necessary for implementation of this part as expeditiously as practicable with as little cost or delay to the property owner as possible, consistent with this Land Development Code.

(Ord. No. 85-26, § 1(I.J.1(a)), 11-27-1985; Ord. No. 91-31, § 1, 7-2-1991; Ord. No. 05-017, § 4, 1-3-2006)

The provisions of this article shall also apply to structures, land, or uses which hereafter become nonconforming due to any reclassification of zones or any subsequent changes in regulations contained in this Land Development Code or in the Sanibel Plan.

(Ord. No. 85-26, § 1(I.J.1(b)), 11-27-1985)

Any use of land without a principal building which does not conform to the requirements of this Land Development Code shall be made to comply with this Land Development Code.

(Ord. No. 85-26, § 1(I.J.2)), 11-27-1985; Ord. No. 03-014, § 3, 9-16-2003)

A lawfully existing nonconforming use of a structure, or of a structure and land in combination, which would not be allowed in the district in which it is located under the terms of this Land Development Code, may be continued and re-established if the building occupied by the nonconforming use is built-back following substantial damage to the building by a natural disaster, subject to the conditions and limitations contained in this division and those contained in division 5 of this article. Otherwise, they shall be abated, eliminated and removed.

(Ord. No. 91-31, § 2, 7-2-1991; Ord. No. 05-017, § 5, 1-3-2006)

(a)

No existing structure devoted to a use not permitted in the district in which it is located shall be improved, enlarged, extended, moved, or structurally altered, except in changing the use of the structure to a use permitted in the district in which it is located. The following exceptions, however, shall be permitted:

(1)

Repairs to the structure which, in conjunction with prior repairs, do not amount to a material structural alteration or a substantial improvement, as defined in chapter 94, except seawalls located outside of the areas permitted in subsection 126-101(1), which must meet the pertaining requirements listed below in subsections (9) through (12) of this section;

(2)

Alterations within the existing perimeter, i.e., three-dimensional outline, of the structure, which, in conjunction with prior repairs, rehabilitations or alterations do not amount to a substantial improvement, as defined in chapter 94, and including modifications to the existing three-dimensional outline of the structure that are:

a.

Minor, cosmetic, nonstructural alterations to the side or front of the structure, such as awnings or decorative architectural features, provided that such alterations do not extend beyond the footprint of the structure and lawfully existing appurtenances attached to the structure; provided that no usable floor area is added; and provided that no other regulation contained in this Land Development Code, and to which the structure does not conform, is violated.

b.

The addition of decorative dormers or other architectural features if they project from a single existing roof plane and if they do not:

1.

Exceed a total of 35 percent of the length of the roof plane from which they project;

2.

Exceed 50 percent of the vertical height of the roof plane from which they project;

3.

Project above the top of the roof from which they project;

4.

Project beyond the existing eave line; and

5.

Provide additional usable floor area.

Measurement of such features shall be at their widest and tallest dimensions. Measurement of the roof plane shall be along the eave line. Calculations shall be as seen from the same elevation view.

(3)

In the Resort Housing District, reconstruction of existing nonconforming swimming pools and decks, including all related support components and equipment, located partially or entirely in the Gulf Beach Zone, which in conjunction with prior repairs or rehabilitation amount to a substantial improvement:

a.

If any portion of such reconstruction is located in the Gulf Beach Zone, the replacement facility cannot exceed the overall size of the existing swimming pool and deck, including all related support components and equipment; however, the pool cavity can be enlarged provided it fits within an area that is no larger than the area of the existing facility that is to be replaced.

b.

Such reconstruction is to be considered for approval by the planning commission at a public hearing and after consideration of the applicant's evidence that all alternative locations for the replacement of a comparably sized pool and deck with related support components and equipment have been examined and found not to be feasible.

c.

The applicant's examination of alternative locations shall, at a minimum, include an assessment of all available on-site areas located outside the Gulf Beach Zone.

(4)

In the Resort Housing District, reconstruction of existing nonconforming accessory structures, located partially or entirely in the Gulf Beach Zone, which in conjunction with prior repairs or rehabilitation amount to a substantial improvement:

a.

If any portion of such reconstruction is located in the Gulf Beach Zone, the replacement structure, including all related support components and equipment, cannot exceed the overall size of the existing structure.

b.

If the accessory structure covers more than 100 square feet of land area, such reconstruction is to be considered for approval by the planning commission at a public hearing and after consideration of the applicant's evidence that all alternative locations for the replacement of a comparably sized structure have been examined and found not to be feasible.

c.

The applicant's examination of alternative locations shall, at a minimum, include an assessment of all available on-site areas located outside the Gulf Beach Zone.

(5)

The fencing in or screening of the structure for purposes of security, safety, or reduced liability, as long as such fencing or screening is the minimum reasonably necessary for such purpose, both as to height and location, and as long as any such fencing complies with the requirements of subsections 126-1057(2)—(4) and section 126-1059;

(6)

In the interest of general public safety, the reconstruction of existing nonconforming walkways in the same configuration as the existing failed structure and up to a width of 44 inches when part of a required means of egress;

(7)

In the interest of safety, security, and reduced liability, the addition of safety railings on roof decks, provided such railings do not extend beyond the footprint of the existing structure;

(8)

In the interest of safety or to meet federal or state requirements for that improvement, pursuant to section 78-3, development and construction to provide building access for persons with disabilities, provided the development cannot practicably be accomplished within the existing perimeter, i.e., three-dimensional outline, of the structure and is the minimum necessary to provide such access or compliance, regardless of whether said development and construction increases or creates nonconformities pertaining to height, percentage of land coverage, commercial floor area, percentage of vegetation removal and developed area or setbacks and regardless of whether the structure is located within the Bay Beach Zone or Gulf Beach Zone;

(9)

Repairs of existing nonconforming use seawalls in human made or natural waterbodies, when such repairs are done in accordance with requirements found in subsections 126-101(2) through (20); and

(10)

Reconstruction of existing nonconforming use seawalls in human made waterbodies, where such reconstruction is approved by the planning commission at a hearing as for a development permit after consideration of the following requirements:

a.

The applicant has demonstrated through a technical report by a State of Florida licensed professional engineer that alternatives to a seawall have been examined and found to be unsatisfactory because development of an alternate bank stabilization method would result in one or more of the following conditions:

1.

Excessive loss of uplands property;

2.

Net loss of existing native vegetation or habitat for native wildlife;

3.

Degradation of water quality;

4.

Creation of a potentially hazardous condition on the upland property; or

5.

Creation of a potential public nuisance or eyesore.

The applicant's examination of alternatives shall, at a minimum, include removal of all or part of the seawall and restoration of the natural bank; installation of rip-rap; regrading of the uplands to direct runoff away from the waterbody; relocation of upland structures away from the waterbody; installation of a revetment; installation of alternative shoreline stabilization project; and a combination of two or more of the items listed in this subsection.

b.

In making its decision, the planning commission shall be guided by the principle that the banks of human made waterbodies should be as natural appearing as possible and should provide habitat for native wildlife and water quality protection, in addition to being stabilized to protect structures on the upland property.

c.

As an alternative to the reconstruction of the seawall, the planning commission may authorize an alternate method of bank stabilization, such as one or a combination of those methods listed in subsection (10)a. of this section.

d.

Planning commission approval of the reconstruction of a seawall under this division shall be in accordance with the requirements found in subsections 126-101(2) through (20).

e.

If a seawall is determined to be necessary based upon (a) of this subsection, then the design must incorporate at a minimum one of the following environmental enhancements:

1.

Planting shelf waterward of the seawall planted with two staggered rows, minimum one-gallon container size mangrove or other appropriate native vegetation three-foot on center.

2.

Minimum ten-foot wide native groundcover planting area directly adjacent to and along the length of the seawall except for a maximum five-foot wide accessway to a dock. Native groundcover plants to be minimum one-gallon container size installed three-foot on center; soil must be stabilized with a natural fiber filter cloth or native seashore paspalum sod at time of planting.

3.

Textured seawall panels or other design that creates pockets and crevices for the establishment of marine flora and fauna.

4.

Other innovative, site specific means to enhance the adjacent human made waterbody or upland area.

(11)

Reconstruction of existing nonconforming use seawalls in natural waterbodies is only allowed when reconstruction is found to be the only means to protect existing primary use building or swimming pool as evaluated by a State of Florida licensed engineer with expertise in structural engineering and approved by the planning commission at a hearing for a development permit after consideration of the following requirements:

a.

A signed and sealed technical report from a State of Florida licensed engineer with expertise in structural engineering explaining why an alternative to a seawall would endanger the structural integrity of a primary use building or swimming pool.

b.

In making its decision, the planning commission shall be guided by the principle that the banks of natural waterbodies should be restored or enhanced where possible to provide an upland connection to the shoreline for native wildlife, include native vegetation, and provide water quality protection in addition to stabilizing the shoreline to protect structures on the upland property.

c.

If reconstruction of an existing nonconforming use seawall is determined to be necessary based upon this subsection, then the reconstructed seawall must be installed in the same three-dimensional footprint of the existing seawall, and the design must incorporate a minimum of two of the following:

1.

Planting shelf waterward of the seawall planted with two staggered rows, minimum one-gallon container size mangrove or other appropriate native vegetation three-foot on center.

2.

Minimum ten-foot wide native groundcover planting area directly adjacent to and along the length of the seawall except for a maximum five-foot wide accessway to a dock or shoreline. Native groundcover plants to be minimum one-gallon container size installed three-foot on center with natural fiber cloth such as jute cloth or native seashore paspalum sod.

3.

Textured seawall panels or other design that creates pockets and crevices for the establishment of marine flora and fauna.

4.

Other innovative, site-specific means to enhance the adjacent natural waterbody or upland area.

d.

Planning commission approval of the reconstruction of a seawall under this division shall be in accordance with the requirements found in subsections 126-101(2) through (20).

(12)

The reestablishment of a nonconforming use of a building that is been built-back following substantial damage to the building by a natural disaster, in conformance with the provisions contained in this article.

(b)

If the use of a structure, or a part of a structure, devoted to a use not permitted in the district in which it is located, is changed, the use must be changed to one permitted in such district, unless a change of use is authorized pursuant to section 82-262.

(c)

There may be a change of tenant, ownership, or management of a nonconforming use, provided there is no change in the nature, character, size, or intensity of such nonconforming use.

(d)

When a nonconforming use of a structure, or structure and land in combination, is discontinued, vacant, abandoned, or not used for 12 consecutive months, the structure, or structure and premises in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. (See section 82-61, reestablishment of abandoned nonconforming uses.) For reestablishment of a nonconforming use following a disaster, see division 5 of this article, section 126-218.

(e)

The nonconforming use of any dwelling unit as resort housing, outside of the Resort Housing District, may not be continued or maintained within the city, except for the following:

(1)

Any single-family dwelling or duplex unit exempted from required termination of resort housing use by resolution of the city council adopted on or before October 1, 1985, or by ordinance adopted by city council after October 1, 1985, may continue in accordance with such resolution or ordinance. Any such unit shall be subject to the requirements of sections 126-151 and subsections 126-152(a) through (d), as well as any more restrictive conditions contained in the resolution or ordinance exempting such unit.

The following are the single-family and duplex units exempt from required termination of resort housing use and the city council resolution or ordinance number establishing the exemption. In all the following cases, resort housing use shall cease upon any change of ownership of such unit:

(2)

Because of equitable considerations, a long-established history of use for short-term rentals, a developed tolerance for such use, adverse effects which are not too severe as to outweigh the equitable considerations involved, and a need for a limited number of lower-cost short-term resort units, the following parcels may continue to be used for nonconforming resort housing in accordance with the conditions and limitations specified in subsection (e)(3) of this section:

*Does not apply to the 80 existing mobile homes.

(3)

The uses identified in subsection (e)(2) of this section shall be subject to the requirements of subsection (b) of this section. Such uses shall also be subject to the requirements of subsections (c) and (d) of this section, as applied to each identified parcel and the structures thereon as a whole. Furthermore, the structures on such parcels may not be reconstructed (except as provided in subsection (d) of this section), but they may be remodeled, moved, and structurally altered as long as they are not enlarged or extended. Notwithstanding the provisions of this subsection, however, any nonconforming structure on any such parcel shall be subject to the limitations contained in division 3 and division 5 of this article.

(4)

The following residential units may continue to be used for nonconforming resort housing use, subject to the requirements of this division, for as long as, and only as long as, they are rented through the on-site rental management program of the Colony Resort or the Collonades Condominium and their tenants are entitled to use of the swimming pool and other amenities of the Collonades Condominium:

_____

(5)

Replacement of existing outdoor lighting fixtures, provided:

a.

They are necessary for safety, rather than merely for decorative or aesthetic purposes;

b.

They are no greater in number or lighting intensity than the minimum necessary to provide for safety;

c.

They are in the same location as the fixtures they are replacing, unless alternative siting better accomplishes compliance with pertinent Land Development Code standards;

d.

They conform with all other Land Development Code performance standards for development of outdoor lighting;

e.

They do not interfere with wildlife or wildlife habitat generally, or with sea turtle nesting specifically; and

f.

They are not inconsistent with the Sanibel Plan.

(f)

Making accessory beach equipment available to owners, tenants and guests at nonconforming resort housing developments is allowed, subject to compliance with the requirements of section 126-636.

(Ord. No. 85-26, § 1(I.J.3), 11-27-1985; Ord. No. 86-26, § 3, 6-17-1986; Ord. No. 87-16, § 1, 7-7-1987; Ord. No. 87-19, § 1, 7-7-1987; Ord. No. 87-39, § 1, 11-17-1987; Ord. No. 88-18, § 1, 6-21-1988; Ord. No. 89-12, § 1, 3-21-1989; Ord. No. 90-22, § 1, 11-6-1990; Ord. No. 91-31, § 2, 7-2-1991; Ord. No. 95-18, § 2, 12-19-1995; Ord. No. 97-03, § 1, 2-18-1997; Ord. No. 02-21, § 1, 9-17-2002; Ord. No. 03-013, § 2, 11-18-2003; Ord. No. 05-005, § 1, 2-9-2005; Ord. No. 05-017, § 6, 1-3-2006; Ord. No. 11-003, § 11, 6-7-2011; Ord. No. 14-003, § 1, 6-17-2014; Ord. No. 22-001, § 2, 4-5-2022; Ord. No. 23-020, § 2, 9-11-2023)

Any nonconforming structure shall be made to comply with this Land Development Code, except as otherwise provided in this section and in division 5 of this article.

(Ord. No. 85-26, § 1(I.J.4(a)), 11-27-1985; Ord. No. 86-26, § 4, 6-17-1986; Ord. No. 91-31, § 4, 7-2-1991)

(a)

Except as otherwise provided in this article and in article XII Resort Housing District in this chapter, no nonconforming structure may be reconstructed, moved, removed, relocated, or structurally altered, except in such fashion as to eliminate the nonconformance or as to reduce the degree of nonconformance as much as possible. Nonconforming seawalls outside of the areas where seawalls are a permitted use [subsection 126-101(1)] are nonconforming uses and must meet section 126-152 standards. The following shall, however, be permitted:

(1)

Repairs or rehabilitations to a nonconforming structure which, in conjunction with prior repairs, do not amount to a material structural alteration or a substantial improvement as defined in chapter 94;

(2)

The expansion of a structure which is nonconforming because of height, percentage of land coverage, residential density, commercial floor area, vegetation removal, or area or yard requirements, as long as such requirements are not further violated and as long as the expansion, considered by itself, would not violate such requirements;

(3)

Minor, cosmetic, nonstructural alterations to the side or front of a structure which encroaches on a required side or front yard setback, such as awnings or decorative architectural features, provided that such alterations do not extend further into the setback than that part of the structure closest to the property line; provided that no usable floor area is added; and provided that no other regulation contained in this Land Development Code, and to which the structure does not conform, is further violated;

(4)

Repairs or reconstruction of existing nonconforming seawalls where seawalls are a permitted use [subsection 126-101(1)] in human made waterbodies in accordance with the requirements found in subsections 126-101(2) through (20);

(5)

In the interest of safety, or to meet federal or state requirements for that use, consistent with section 78-3, development and construction to provide building access for persons with disabilities provided the development cannot practicably be accomplished within the existing perimeter, i.e., three-dimensional outline, of the structure and is the minimum necessary to provide such access, regardless of whether said development and construction increases or creates nonconformities pertaining to height, percentage of land coverage, commercial floor area, percentage of vegetation removal and developed area or setbacks and regardless of whether the structure is located within the Bay Beach Zone or Gulf Beach Zone; and

(6)

In the Resort Housing District, reconstruction of existing nonconforming swimming pools and other accessory structures, including all related support components and equipment, which in conjunction with prior repairs or rehabilitation amount to a substantial improvement.

(7)

The fencing in or screening of the structure for purposes of security, safety, or reduced liability, as long as such fencing or screening is the minimum reasonably necessary for such purpose, both as to height and location, and as long as any such fencing complies with the requirements of subsections 126-1057(2)—(4) and section 126-1059;

(8)

In the interest of safety, security, and reduced liability, the addition of safety railings on roof decks, provided such railings do not extend beyond the footprint of the existing structure;

(9)

In the interest of general public safety, the reconstruction of existing nonconforming walkways in the same configuration as the existing failed structure and up to a width of 44 inches when part of a required means of egress;

(10)

Building back (reconstruction) of a structure substantially damaged by a natural disaster in accordance with division 5 of this article.

(Ord. No. 85-26, § 1(I.J.4(b)), 11-27-1985; Ord. No. 86-50, § 1, 12-16-1986; Ord. No. 87-11, § 1, 5-19-1987; Ord. No. 87-32, § 1, 9-15-1987; Ord. No. 88-18, § 2, 6-21-1988; Ord. No. 91-31, § 4, 7-2-1991; Ord. No. 95-18, § 3, 12-19-1995; Ord. No. 02-21, § 2, 9-17-2002; Ord. No. 05-017, § 7, 1-3-2006; Ord. No. 11-003, § 12, 6-7-2011; Ord. No. 22-001, § 2, 4-5-2022)

Whenever a structure is nonconforming because the lot or parcel on which it is located is developed in excess of maximum permitted residential density, commercial floor area, developed area, or coverage with impermeable surfaces, such lot or parcel shall be combined with any other contiguous lot or parcel under common ownership so as to reduce the degree of nonconformance as much as possible without leaving any remainder as a nonconforming lot or with a nonconforming structure or as a parcel on which any reasonable development is not possible.

(Ord. No. 85-26, § 1(I.J.4(c)), 11-27-1985; Ord. No. 91-31, § 4, 7-2-1991)

Whenever a nonconforming lot is contiguous to another lot or parcel of land under common ownership, such lot shall be combined with the contiguous lot or parcel so as to create one or more conforming lots or so as to reduce the extent of nonconformity, but in either case, no remainder parcel shall be left as a nonconforming lot or with a nonconforming structure or as a parcel on which any reasonable development is not possible.

(Ord. No. 85-26, § 1(I.J.5), 11-27-1985)

When a structure, which is devoted to a use not permitted in the district in which it is located; that is, a nonconforming use, is destroyed or substantially damaged by accidental fire or other natural and disastrous force, the use to which such structure is devoted may be re-established.

•

Where the use is a non-resort or resort residential use in the Gulf Beach Zone or the Bay Beach Zone the use may be re-established.

•

Where the use is a nonresort duplex or a nonresort multifamily building in a residential area that is limited to single-family dwellings the use may be re-established.

•

Specifically, a resort housing unit not located in the Resort Housing District or a commercial unit not located in the Commercial District the use may be re-established.

(Ord. No. 85-26, § 1(I.J.6(a)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 05-017, § 9, 1-3-2006)

(a)

When a nonconforming structure is destroyed or substantially damaged by accidental fire or other natural and disastrous force, such structure may be built back (reconstructed):

(1)

Within its pre-disaster footprint;

(2)

Within the three-dimensional outline of the lawfully existing habitable area of the pre-disaster building;

(3)

Up to its pre-disaster gross square footage;

(4)

Up to its lawfully existing number of dwelling units, but;

(5)

Elevated above the base flood elevations required by federal flood regulations, chapter 94 of this Land Development Code, and the Florida Building Code, and conforming in all other respects to the Land Development Code requirements in effect at the time the substantially damaged building is built back (reconstructed), except for height, under the following conditions:

a.

When reconstruction or elevation of a nonconforming structure to comply with minimum flood elevation requirements does not conform or increases the degree of nonconformity with applicable height standards; or

b.

For the purpose of resiliency from potential future storm surge, the height of the lowest habitable floor of a nonconforming structure may be elevated up to ten feet above existing grade and exceed applicable height limitations proportionally, including any angle of light restrictions.

(b)

Applications to buildback a nonconforming structure that was destroyed or substantially damaged by accidental fire or other natural and disastrous force must be filed within two years of the date of the destruction or substantial damage to the building that is to be built back. If the declared state of local emergency extends beyond six months, the deadline to make application shall be extended to three years. If the declared state of local emergency extends beyond one year, the deadline to make application shall be extended to four years.

(c)

Replacement of a nonconforming use seawall that was destroyed or substantially damaged by a natural disaster (defined in chapter 78) must follow the standards established for revetments (sections 126-911 and 126-912), or alternative shoreline stabilization project (section 126-99), or section 126-152. An expedited permitting process, which waives the requirement for planning commission approval, may be authorized by the city manager or their designee once confirmation of the destruction or substantial damage is determined to be caused by a natural disaster.

(d)

In the case of a historic structure, as defined in chapter 94 or described in chapter 98, reconstruction is permitted as provided in this section, and in addition, in any manner which preserves the integrity of the structure as a historical structure.

(Ord. No. 85-26, § 1(I.J.6(b)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 05-017, § 10, 1-3-2006; Ord. No. 22-001, § 2, 4-5-2022; Ord. No. 24-016, § 2, 9-9-2024; Ord. No. 25-005, § 2, 5-6-2025; Ord. No. 25-015, § 2, 9-8-2025)

The re-establishment of the pre-disaster nonconforming use, or the building back (reconstruction) of the nonconforming structure substantially damaged by a natural disaster shall not result in an increase in density; or development intensity, including commercial floor area; or permitted impermeable surface coverage; or cleared or developed areas; from that which was either lawfully in effect, or lawfully existing, immediately prior to the disaster.

(Ord. No. 85-26, § 1(I.J.6(c)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 05-017, § 11, 1-3-2006)

For purposes of this division, "substantial damage" means any damage whereby the cost of restoring the structure to its before-damaged condition would exceed 50 percent of the market value of the structure immediately before the damage occurred.

(Ord. No. 85-26, § 1(I.J.6(d)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991)

(a)

Notwithstanding any provision to the contrary, nothing contained in this section shall authorize the building back (reconstruction) of a structure in violation of, noncompliance with, or in excess of, as the case may be, any of the following:

(1)

Federal Flood Regulations, chapter 94 of this Land Development Code or the Florida Building Code;

(2)

Applicable building, health and safety codes;

(3)

State coastal construction control lines;

(4)

Other applicable federal, state or local regulations;

(5)

Setbacks from open bodies of water, or the pre-disaster footprint, whichever is closer; but in no event, closer than ten feet from an open body of water.

(Ord. No. 85-26, § 1(I.J.6(e)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 92-18, § 9, 10-6-1992; Ord. No. 05-017, § 12, 1-3-2006)

Notwithstanding any provision to the contrary, nothing in this section shall authorize the re-establishment of a use, or reconstruction of a structure which was not lawfully existing at the time of the damage.

(Ord. No. 85-26, § 1(I.J.6(f)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991)

Where special conditions exist which would otherwise prevent the issuance of a short-form permit under this section, an application for relief may be filed with the city council under the terms and conditions set forth in chapter 82, article II, division 2.

(Ord. No. 85-26, § 1(I.J.6(g)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991)

This division shall not permit re-establishment of a use which has been discontinued, vacant, abandoned or not used, within the meaning of division 2 of this article and this division shall not be used to permit reconstruction of a nonconforming structure, unless application for reconstruction has been made within one year after the disaster. If the declared state of local emergency extends beyond six months, the deadline to make application shall be extended to three years after the disaster. If the declared state of local emergency extends beyond one year, the deadline to make application shall be extended to four years after the disaster. A permit must be obtained within six months of an application being made. A development permit to build-back (reconstruct) a structure devoted to a nonconforming use shall be valid pursuant to section 82-361.

(Ord. No. 85-26, § 1(I.J.6(h)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 23-020, § 2, 9-11-2023; Ord. No. 24-016, § 2, 9-9-2024; Ord. No. 25-015, § 2, 9-8-2025)

(a)

Any person may file with the city manager documentation, including, but not limited to, an as-built survey showing all improvements located on the site, base flood elevation and lowest floor elevation, dimensions, which include height, a floor plan showing interior walls, identifying the use of all rooms, and showing all window and door openings and points of ingress and egress, interior elevations with ceiling heights, calculations of living area, developed area, and area covered with impermeable surfaces, number of parking spaces, and any other information that may be relevant to build-back including date or dates of construction. The city manager may accept a plot plan or a floor plan, accompanied by photographs, or any other documentation provided and certified by the owner, and may accept elevation certificates certified by a person authorized by law to certify such certificates, in lieu of requiring such information to be upon the as-built survey. Such documentation shall constitute prima facie evidence of the condition of the parcel and structures upon it, as of the date of filing. Such filing shall not constitute prima facie evidence of the lawfulness of such use or structure, unless an application to establish and determine the lawfulness of the use or structure has been filed and such determination has been made.

(b)

In the event that build-back registration has not been filed with the city prior to substantial damage to a building, the city manager will use the best information available to determine the pre-disaster height of the substantially damaged building, including the pre-disaster ceilings height of the building. Without build-back registration or other evidence deemed to be competent by the city manager of ceiling heights greater than nine feet, the determination of pre-disaster building height will assume ceiling heights of up to nine feet. This provision does not permit an overall building height to exceed the maximum building height otherwise established by the Land Development Code.

(c)

Owners of nonconforming structures or structures devoted to a nonconforming use should be encouraged to file their build-back information with the city including a verification of existing ceiling heights. If there's no information, or insufficient plans filed with the city for build-back purposes, then a property owner may have to provide certified documentation of pre-disaster conditions prior to issuance of a permit for reconstruction.

(Ord. No. 85-26, § 1(I.J.6(i)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991; Ord. No. 05-017, § 13, 1-3-2006; Ord. No. 23-019, § 2, 7-18-2023)

Nothing in this division shall be construed as to allow a conforming structure to reconstructed in a nonconforming manner.

(Ord. No. 85-26, § 1(I.J.6(j)), 11-27-1985; Ord. No. 91-31, § 5, 7-2-1991)