Within the districts established by this Zoning Code, as amended, there exist lots, structures, uses of land and/or structures and characteristics of use which were lawful before this Zoning Code was passed or amended, but which are prohibited, regulated or restricted under the provisions of this Zoning Code, as amended. With regard to most nonconformities, it is the intent of this chapter to permit them to continue until they are removed, but not to encourage their survival. It is further the intent of this chapter that most nonconformities shall not be enlarged upon, expanded, extended or used as grounds for adding other structures or uses prohibited elsewhere in the same district. However, it is also recognized that strict nonconformity provisions can make it difficult to obtain financing for certain residential structures, in addition certain classes of nonconformities may present less severe conflicts with permitted uses, and some relief from these restrictions can be made conditionally available to the owners of such properties on an elective basis.

(Ord. O-20-2. Passed 1-2-20.)

   Nonconforming uses are hereby declared to be incompatible with permitted uses in the district involved. Except as otherwise provided in this chapter, a nonconforming use of a structure, a nonconforming use of land or a nonconforming use of a structure and land in combination shall not be extended or enlarged after passage of this Zoning Code, as amended nor shall other uses of a nature which would be prohibited generally in the district involved be commenced.

(Ord. O-20-2. Passed 1-2-20.)

   To avoid undue hardship, nothing in this Zoning Code 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 Zoning Code which would prohibit or limit such construction, and upon which actual building construction has been carried on diligently. As used in this section, "actual building construction" means and includes the placing of construction materials in a permanent position, fastened in a permanent manner. In the case of excavation or demolition or removal of an existing building, such excavation, demolition or removal shall be deemed to be actual construction if the work is carried on diligently.

(Ord. O-20-2. Passed 1-2-20.)

   In any district in which single-family dwellings are permitted, a single-family dwelling and any customary accessory buildings may be erected on any single lot which is of record on the effective date of adoption or amendment of this Zoning Code notwithstanding limitations imposed by other provisions of this Zoning Code. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This section 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 or requirements, other than those 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 Zoning Appeals.

(Ord. O-20-2. Passed 1-2-20.)

   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 adoption of this Zoning Code (Ordinance 546B, passed February 25, 1976), and if part or all 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 Zoning Code and no portion of such lot or parcel shall be used or sold in a manner which diminishes compliance with the lot width and area requirements established by this Zoning Code, nor shall any division of any parcel be made which creates a lot with a width or area below the requirements stated in this Zoning Code.

(Ord. O-20-2. Passed 1-2-20.)

   Where, at the time of the adoption of this Zoning Code or amendment thereto, a lawful use of land exists which is not permitted by this Zoning Code, as amended, the use may be continued so long as it remains otherwise lawful provided that:

   (a)   No such nonconforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied on the effective date of adoption or amendment of this Zoning Code.

   (b)   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 on the effective date of adoption or amendment of this Zoning Code.

   (c)   Notwithstanding divisions (a) and (b) above, if the owner of a legal nonconforming use can demonstrate through application to the Board of Zoning Appeals that the manner in which the useable area of the nonconforming use proposed to be increased or relocated will have minimal adverse impact upon adjacent properties and other permitted land uses in the surrounding neighborhood or can be made compatible with the adjacent properties and the uses in the surrounding neighborhood upon compliance with specified conditions, the enlargement, increase, extension or relocation may be permitted, but shall still remain a nonconforming use. The factors that may be considered in determining an adverse impact include but are not limited to: noise, odor, and/or vibrations; traffic; visual impacts; access to light and air from adjoining properties; existence of screening; hours of operation; the effect on the access to the property by fire, police, or other public services; and the predominant or prevailing land use, building and structure patterns of the surrounding neighborhoods.

   (d)   If any such nonconforming use of land ceases for any reason for more than six months, any subsequent use of such land shall conform to the regulations of this Zoning Code for the district in which such land is located and the nonconforming use may not thereafter be resumed. The intent to continue a nonconforming use shall not be evidence of its continuance.

   (e)   No I structure not conforming to this Zoning Code shall be erected in connection with such nonconforming use of land.

(Ord. O-20-2. Passed 1-2-20.)

   Where a lawful structure exists on the effective date of adoption or amendment of this Zoning Code that cannot be built under the provisions of this Zoning Code 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 so long as it remains otherwise lawful, subject to the following provisions:

   (a)   No such nonconforming structure shall be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

   (b)   Should such nonconforming structure or a nonconforming portion of such structure be destroyed by any means to an extent that the cost to restore the structure to its prior condition, is more than fifty percent of the structure's true value according to the Warren or Montgomery County Auditor (as applicable) at the time of destruction, it shall not be reconstructed except in conformity with this Zoning Code.

   (c)   Should such structure be moved for any reason for any distance, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

(Ord. O-20-2. Passed 1-2-20.)

   If a lawful use involving individual structures, or of a structure and land in combination, exists on the effective date of adoption or amendment of this Zoning Code that is not allowed in the district under the provisions of this Zoning Code, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

   (a)   No existing structure devoted to a use not permitted by this Zoning Code in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except to change the use of the structure to a use permitted in the district in which it is located.

   (b)   Any nonconforming use may be extended throughout any part of a building which was manifestly arranged or designed for such use at the time of adoption or amendment of this Zoning Code but no such use shall be extended to occupy any land outside such building.

   (c)   If no structural alterations are made, any nonconforming use of a structure, or of a structure and land in combination, may, as a special exception, be changed to another nonconforming use, provided that the Board of Zoning Appeals, either by general rule or by making findings in the specific case, finds that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the Board may require appropriate conditions and safeguards in accordance with this Zoning Code.

   (d)   Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district in which it is located, and the nonconforming use may not thereafter be resumed.

   (e)   When a nonconforming use of a structure, or of a structure and land in combination, is discontinued for six consecutive months or for eighteen months during any three-year period (not including any period when government action substantially impedes physical 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.

   (f)   Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. As used in this subsection, "destruction" means damage to an extent of more than fifty percent of the replacement cost at the time of destruction.

   (g)   When a nonconforming structure is damaged to an extent of more than fifty percent of the replacement cost at the time of destruction, it may not be rebuilt except in conformity to the regulations of the district in which it is located.

   (h)   When a nonconforming use is discontinued as a result of damage to the structure in which it is located to an extent of more than fifty percent of the replacement cost at the time of destruction, it may not be restarted.

   (i)   For purposes of Section 1286.08(f), (g) and (h) damage or destruction of more than fifty percent of the replacement cost shall mean that the cost to replace the structure to its prior condition, is more than fifty percent of the structure's market value according to the Warren or Montgomery County Auditor (as applicable) at the time of destruction.

   (j)   Whenever a nonconforming use is changed to a less intensive nonconforming use, such use shall not thereafter be changed to a more intensive nonconforming use.

   (k)   Any nonconforming structure, use, or structure and land in combination becomes conforming shall not be entitled to resume its nonconformity.

(Ord. O-20-2. Passed 1-2-20.)

   On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on the repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding ten percent of the current true value according to the Warren or Montgomery County Auditor (as applicable) of the nonconforming structure provided that the cubic content existing when it becomes nonconforming shall not be increased. 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 it is declared by a 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. Nothing in this Zoning Code 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.

(Ord. O-20-2. Passed 1-2-20.)

   Notwithstanding other provisions of this chapter, when a nonconforming multi-family residential, business or industrial use or structure is located in a zoning district other than the Urban Village District, which permits business or industrial uses (other than agriculture, horticulture or home occupations), the owner of the property may elect to exercise the following options, subject to the stated conditions:

   (a)   To expand the use or structure on the existing lot provided that the lot is conforming in all respects to the most restrictive dimensional requirements which would be in effect if the lot were zoned to permit the use; and further provided that all yard, area and other dimensional and functional requirements in effect for the actual district designation (e.g., lighting, parking) are satisfied.

   (b)   To rebuild the structure within twelve months after a casualty loss, even if the loss is as great as 100 percent.

   (c)   To restart the use on the existing lot, provided it has been discontinued for no more than twelve consecutive months or for no more than eighteen months during any three-year period. Any period when government action substantially impedes physical access to the premises shall not be considered a discontinuance.

   (d)   To remove and rebuild the structure(s) in the same or different form or location on the existing lot provided that the lot is conforming in all respects to the most restrictive dimensional requirements which would be in effect if the lot were zoned to permit the use; and further provided that all yard, area and other dimensional and functional requirements in effect for the actual district designation (e.g., lighting, parking) are satisfied.

   If the proposed expansion or reconstruction of a nonconforming business use or structure is of such a nature that it may be permitted only by exercise of the elective rights provided by this section, it shall be subject to the site plan review requirements of Chapter 1284 of the Codified Ordinances. For example, pursuant to Chapter 1284, approval of such expansion or reconstruction may be conditioned upon the provision of new landscaping, fences, walls and other improvements or design features as may be necessary or desirable to minimize functional or aesthetic conflicts with adjacent permitted land uses and to prevent or minimize nuisance conditions.

(Ord. O-20-2. Passed 1-2-20.)

   Notwithstanding anything else in this chapter to the contrary:

   (a)   If a nonconforming single-family dwelling, in any district, is damaged or destroyed to any extent, and cannot reasonably be rebuilt in conformance with the applicable zoning district regulations, such structure may be reestablished on the same lot provided it meets the same size in height and footprint, as well as complying with the same setbacks as previously existed.

   (b)   A nonconforming structure used as a single-family residential dwelling may be increased or improved, regardless of the applicable zoning district, provided the structure continues thereafter to be used for single-family residential purposes only and any such increase or improvements meets all required setbacks and other zoning provisions.

(Ord. O-20-2. Passed 1-2-20.)