Lawfully established. A building, structure, sign, or parcel of land, or use thereof, was lawfully established if it was in existence prior to January 15, 1951, or was established in conformance with the zoning ordinance in effect at the time the use was first established. For the purposes of this ordinance, the placement or use of a sign, with or without any other structure or use, is considered a use of land. (See subsection C. below.) A lot was lawfully established if it was shown on a deed or recorded plat prior to January 16, 1951, or is shown on a legally recorded plat or deed that conformed to requirements in effect at the time of the recording. Any building, structure, sign, or parcel of land, or use thereof, that was not lawfully established at the time of the adoption or amendment of this zoning ordinance, is not protected by this article.

Nonconformance. A nonconformance is a building, structure, sign, or parcel of land, or use thereof, which was lawfully established at the time of the adoption or amendment of this zoning ordinance, and not in conformity with the provisions of such ordinance or amendment.

Nonconforming by dimension. A building, structure, or parcel of land not in compliance with the dimensional regulations of this ordinance shall be nonconforming by dimension. Dimensional regulations include all regulations of this ordinance, other than those pertaining to the permitted uses. A building or structure containing a permitted number of dwelling units by the use regulations of this ordinance, but not meeting the lot area per dwelling unit regulations, shall be nonconforming by dimension. Specific entities nonconforming by dimension include, but are not limited to:

A.

Nonconforming structure. Any structure which was lawfully in existence at the time of the adoption of this ordinance or any amendments thereto, but which does not comply with the dimensional regulations or the supplementary regulations or any other regulations concerning structures set forth in this ordinance or any amendment thereto for the zoning district in which such structure is located.

B.

Nonconforming lot of record. A lot of record which, when recorded, was in full compliance with the zoning ordinance in effect at the time of recording or which was legally recorded prior to January 15, 1951, and which cannot conform to the area and dimensional regulations of this ordinance.

Nonconforming by use. Any use of land or of a structure which was lawfully in existence at the time of the adoption of this ordinance or any amendments thereto shall be nonconforming by use, notwithstanding that such a use is not permitted by the district regulations of this ordinance, or any amendments thereto, for the zoning district in which such use is located. A lawfully existing use which is permitted by special use permit, but which has never received such special use permit shall also be nonconforming by use. A building or structure containing more dwelling units than are permitted by the use regulations of this ordinance shall be nonconforming by use. An extractive industry use shall be nonconforming by use only to the extent of its horizontal (parallel to the ground) excavated limits and the precise nature of the operation, as they existed upon the enactment of this ordinance. The nature of the operation includes, but is not limited to, the use of specific extractive techniques, such as blasting, and specific accessory uses, such as the washing, treating or storing of the extracted material.

Use by variance, special exception or special use permit. A nonconforming building, structure, sign, or parcel of land or the use thereof, which exists by virtue of having received a variance or a special use permit (or a special exception) granted by the zoning board, shall not be considered a nonconformance for the purposes of this article, and shall not acquire any rights under this article. Rather, such building, structure, sign, parcel of land or use thereof, shall be considered a use by variance or a use by special use permit. Any moving, relocation, addition, enlargement, expansion, intensification or change of such building, structure, sign, parcel of land or use thereof, to any use other than a use by variance or special use permit or which is in complete conformance with this ordinance, shall require a further variance or special use permit from the zoning board.

A building, structure or parcel of land nonconforming by more than one (1) factor, such as by use, dimension, area or parking, shall comply with all applicable regulations of this article. Where the regulations conflict, the most restrictive regulations shall apply.

A.

Continuance of use. Nothing in this ordinance shall prevent or be construed to prevent the continuance of a nonconforming use of any building, structure or land for any purpose to which such building, structure or land was lawfully established.

B.

Maintenance and repair. A building or structure containing a nonconforming use may be maintained and repaired except as otherwise provided in this article.

C.

Moving or relocation. A nonconforming use shall not be moved in whole or in part to any portion of the land other than that occupied by such use at the time of adoption of this ordinance unless granted a special use permit by the zoning board.

D.

Addition and enlargement. A building or structure containing a nonconforming use shall not be added to or enlarged in any manner, including any addition or enlargement of floor area or volume, unless the use contained within such building or structure, including such addition and enlargement, is made to conform to the use regulations of the zone in which it is located, provided however that limited addition or enlargement may be granted by the zoning board as a special use pursuant to Section 203 below.

E.

Expansion. A nonconforming use may occupy any parts of a structure which were designed for such use at the time of the adoption of this ordinance. A nonconforming use may expand in other ways only if granted a special use permit under the provisions of section 203.

F.

Expansion of extractive industrial use. A nonconforming extractive industrial use may expand horizontally to adjacent areas of the land where such use is located, but such expansion is limited to twenty-five (25) percent of the excavated surface area for which such use was utilized on July 12, 1996. A nonconforming extractive industry use may expand horizontally in surface area by more than twenty-five (25) percent of its existing excavated area on July 12, 1996, if granted a special use permit under the provisions of section 203.

G.

Intensification. A nonconforming use of a building, structure or land shall not be intensified in any manner. Intensification shall include, but not be limited to, increasing hours of operation, increasing the number of dwelling units, decreasing the lot area, or increasing the seating capacity of a place of assembly. However, this section shall not prohibit the reconfiguration of lawfully established dwelling units within a building or structure so long as such reconfiguration complies with the requirements of subsection E., provided however that limited intensification may be granted by the board as a special use pursuant to section 203 below.

H.

Change of use. A lawful nonconforming use shall not be changed to another nonconforming use but may be changed to a use conforming to the provisions of this ordinance, or to a use within the same numbered use code as listed under article 3 of this ordinance. (See section 300 with regard to "Use Code" and "Use Code Category.") Once a lawful nonconforming use is changed to a conforming use, it may not be changed back to a nonconforming use.

I.

Abandonment. If the lawful nonconforming use of any land, building, structure or sign is abandoned, it shall not be allowed to resume except in conformity with all applicable provisions of this Ordinance, unless the owner can demonstrate an intent not to abandon the use. Abandonment of a nonconforming use shall consist of some overt act, or failure to act, which would lead one to believe that the owner of the nonconforming use neither claims nor retains any interest in continuing the nonconforming use. An involuntary interruption of a nonconforming use, such as by fire and natural catastrophe, does not establish the intent to abandon the nonconforming use.

J.

Discontinuance—Presumption of abandonment. If any nonconforming use is discontinued for a period of one (1) year or more, the owner of the nonconforming use will be presumed to have abandoned the nonconforming use, unless that presumption is rebutted by the presentation of sufficient evidence of intent not to abandon the use. Evidence of discontinuance shall include a change in the use of the building, structure, land or sign to another use; failure to maintain the site, building, structure or sign in habitable, useable or safe condition; or failure to protect said building, structure or sign from the natural elements for a period of one (1) year or more. For the purposes of this section, the intent to abandon a lawful nonconforming use shall also be conclusively presumed by one (1) or more of the following actions:

1.

Voluntary demolition of the building, structure or sign.

2.

Failure to apply for or lapse of any permits, licenses or certifications required for continuation of the use, or failure to appeal any denial of any such permit, license or certification within twelve (12) months of any such lapse or denial.

3.

Removal from the site, building or structure of fixtures, equipment, machinery or inventory necessary for the continuation of the use.

K.

Reconstruction. If a nonconforming use is damaged or destroyed by accident or Act of God, it may be restored or repaired provided that such repair or rebuilding shall be commenced within one (1) year of the date of the destruction or damage and shall be diligently prosecuted until completed; and provided that the use, total floor area or land area of use and the location on the site is not altered or increased. Such repair or restoration shall comply in all respects with all applicable codes, ordinances and other applicable regulatory systems.

A.

In general. As a special use in compliance with the provisions of article 9 of this ordinance, the lawful nonconforming use of a building, structure, or land may be added to, enlarged, expanded, or intensified provided that such addition, enlargement, expansion or intensification shall not exceed fifty (50) percent in excess of the existing floor area, land or intensity used for the nonconforming use at the time the use became lawfully nonconforming. Said increased use shall comply with all other dimensional and area requirements of this ordinance. In granting such a special use permit, the zoning board may place such restrictions on such increase as it may deem necessary to minimize its effect upon neighboring property and uses. Additional special use permits may be granted provided that the cumulative effect is not more than fifty (50) percent.

B.

Extractive industrial uses. For extractive industrial use only, a special use permit may be granted to allow the enlargement or expansion of such a nonconforming use beyond twenty-five (25) percent, up to the boundaries of the yard setbacks of the lot containing such use as such lot existed on May 10, 1999, and subject to all other requirements of this ordinance and the subdivision and land development regulations. In granting such a special use permit, the zoning board may place such restrictions on such increase as it may deem necessary to minimize its effect upon neighboring property and uses.

A.

Continuance. Nothing in this ordinance shall prevent or be construed to prevent the continuance of the use of any building or structure nonconforming by dimension for any purpose to which such building or structure was lawfully established.

B.

Maintenance and repair. A building or structure nonconforming by dimension may be maintained and repaired except as otherwise provided in this section.

C.

Moving. A building or structure which is nonconforming by dimension shall not be moved in whole or in part to any other location on the lot in which it is located unless every portion of such building or structure is made to conform to all of the dimensional requirements of the zone in which it is located.

D.

Addition and enlargement. A building or structure nonconforming by dimension may be added to or enlarged, including vertically, only if both the building footprint and the building envelope of such addition or enlargement conform to all of the dimensional regulations of the zone in which the building or structure is located.

E.

Expansion. A conforming use within a building or structure which is nonconforming by dimension (other than by lot area per dwelling unit) may be expanded into any other portion of the building or structure which is unoccupied or unused.

F.

Intensification. A conforming use within a building or structure which is nonconforming by dimension may be intensified, provided that such intensification is in conformance with the use and lot area per dwelling unit regulations, if applicable, for the zone in which it is located.

G.

Change in use. A conforming use within a building or structure which is nonconforming by dimension may be changed to any other conforming use.

H.

Demolition.

1.

If a building or structure nonconforming by dimension is damaged or destroyed by accident or act of God, destroyed, or damaged; it may as-of-right be repaired or rebuilt to the same size and dimension as previously existed.

2.

The new building or structure, even if not in conformance with the dimensional regulations of the zone in which it is located, may be enlarged to not more than fifty (50) percent larger than the demolished building or structure, by special use permit from the zoning board, provided that the zoning board finds that the nonconforming dimensional aspects of the new building or structure will have no greater impact on the surrounding neighborhood than those of the original building or structure, and that the addition or enlargement complies with subsection D. of this section.

I.

Signs. Nonconforming signs may be continued and maintained. Nonconforming signs which are structurally altered, relocated or replaced shall comply immediately with the provisions of this ordinance.

J.

Parking. A building or structure is considered nonconforming by parking if the lawfully established use of the building or structure does not meet the parking requirements of article 7.

1.

Addition, enlargement, expansion and intensification. A building or structure, or use of land, nonconforming by parking, may be added to, enlarged, expanded or intensified provided additional parking space is supplied to meet the requirements of article 7 for such addition, enlargement, expansion or intensification.

2.

Change of use. A building or structure nonconforming by parking, may be changed to a different use, pursuant to all other provisions of this ordinance, provided parking spaces are supplied to meet the requirements of article 7.

K.

Landscaping. A building or structure is considered nonconforming by landscaping if the lawfully established use of the building or structure does not meet the landscaping requirements of this ordinance or the subdivision and land development regulations. No such building or structure shall be enlarged or expanded beyond a total of five hundred (500) square feet of GLFA, or the use thereof changed or intensified, unless the landscaping for the entire lot or lots upon which the use is located, is brought into conformance with all of the applicable provisions of this ordinance and the subdivision and land development regulations.

A.

When buildable. A lot or parcel of land having a lot width or lot area which is less than required by section 401 may be considered buildable for single household residential purposes regardless of the lot width or lot area, provided such lot or parcel of land was (i) shown on a plat or on a deed duly recorded prior to the effective date of this ordinance, and (ii) provided that at the time of recording the lot or parcel of land so created conformed in all respects to the minimum requirements of the zoning ordinance in effect at that time, and (iii) said lot or parcel of land did not abut other land of the same owner on March 29, 1976, or at any time after such lot or parcel of land was rendered substandard by the provisions of any prior zoning ordinance.

B.

Notwithstanding the failure of a single substandard lot of record or contiguous lots of record to meet the dimensional and/or quantitative requirements of this zoning ordinance, and/or road frontage or other access requirements applicable to the district as stated in the ordinance, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. The setback, frontage, and/or lot width requirements for a structure under this section shall be reduced and the maximum building coverage requirements shall be increased by the same proportion as the lot area of the substandard lot is to the minimum lot area requirement of the zoning district in which the lot is located. All proposals exceeding such reduced requirement shall proceed with a modification request under section 905 or a dimensional variance request under section 907, whichever is applicable.

(Ord. of 12-11-23(2))

A.

When merged. If two (2) or more abutting nonconforming lots of record were under the same ownership on or at any time after March 29, 1976, such lots shall be considered to be an undivided parcel of land for the purpose of this ordinance, and no single lot or portion thereof shall be used in violation of the requirements of section 401 as to lot width and area. If the total lot width or lot area of such abutting lots of record is less than required by section 401, such lots may be considered as a single nonconforming lot of record for single household residential purposes and shall be governed by the provisions of section 207. However, such merger of abutting nonconforming lots shall not apply to lots in the R-10 Zoning District where all such lots are serviced by both public water and public sewer, although they shall remain subject to section 207.

B.

Compliance with other sections. Nothing in this section shall be construed as exempting such abutting nonconforming lots of record from complying with (i) the maximum percentage of lot coverage of principal and accessory buildings, (ii) maximum building height as contained in section 401 for the zoning district in which such lot is located and (iii) the building and accessory building setback provisions of sections 207 and 208. Any lots meeting those requirements shall be considered as a conforming lot of record for single-household residential purposes.

Editor's note— Ord. of 12-11-23(2) repealed § 207, which pertained to nonconforming lots of record—building setback requirements and derived from Code of 2020, App. A, § 207.

Editor's note— Ord. of 12-11-23(2) repealed § 208, which pertained to nonconforming lots of record—accessory building setback requirements and derived from Code of 2020, App. A, § 208.