Within the districts established by this ordinance there may exist lots, uses of land and structures and characteristics of uses which were lawful before this ordinance was adopted or amended, but which would be prohibited or regulated under the term of this ordinance or future amendments. It is the intent of this ordinance to permit these nonconformities to continue until they are removed, but not to encourage their survival. With the knowledge that some nonconforming uses, buildings or structures will not disappear, it is necessary and desirable in pursuit of the public interest to distinguish between nonconforming uses, buildings or structures which should be eliminated as rapidly as possible and nonconforming uses, buildings or structures which ought to be given separate treatment.

   In recognition of this fact, the Zoning Board of Appeals shall have the authority to permit some expansion or changes to lawfully existing nonconforming uses based upon the standards set forth in this article.

   Those alleged nonconforming uses or structures, or uses and structures in combination, which cannot be proved conclusively to have been lawfully existing prior to the enactment or amendment of this ordinance shall be declared illegal uses and shall be discontinued.

(Ord. No. 278-NN, § 34, 1-6-09)

   Where, at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:

   A.   No such nonconforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance;

   B.   No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this ordinance;

   C.   If such nonconforming use of land ceases for any reason for a period of more than one year, 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 structure 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, type of structure or other restrictions of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

   A.   No such structure may be enlarged or altered in any way which increases its nonconformity;

   B.   Should such structure or nonconforming portion of the structure be destroyed by any means to an extent of more than 50% of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance;

   C.   Should such structure be removed for any reason or moved any distance whatsoever, it shall thereafter conform to the regulations for the district in which it is located after it is removed or relocated.

   D.   For purposes of determining whether the nonconformity of a nonconforming structure is increased under this section, an enlargement of a nonconforming structure into a required side or rear yard area shall be permitted without obtaining approval from the Zoning Board of Appeals under section 27.05 if the proposed enlargement of the structure will not reduce the side or rear yard setback between the structure and the lot line in the area where the setback is nonconforming, and the enlargement of the structure complies with all other applicable provisions of this ordinance.

(Ord. No. 278-Q, § 9, 10-3-95; Ord. No. 278-CC, § 12, 6-3-03; Ord. No. 278-NN, § 34, 1-6-09)

   If a lawful use of a structure, or of structure and land in combination, exists at the effective date of adoption or amendment of this ordinance that would not be allowed in the district under the terms of this ordinance, such 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 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 structure to a use permitted in the district in which it is located;

   B.   Any nonconforming use may be extended throughout any parts of the building which were manifestly arranged or designed for such use and which existed at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building;

   C.   Any structure, or structure and land in combination, in or on which a nonconforming use is superseded in whole or in part by a permitted use shall thereafter conform to all regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed;

   D.   When a nonconforming use of a structure, or structure and premises in combination, is discontinued or ceases to exist for one year or for 12 months during any three year period or otherwise sooner abandoned, 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. Structures occupied by seasonal uses shall be excepted from this provision.

   E.   Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.

   A.   Any nonconforming use of a building, structure or land may be changed to another nonconforming use upon written findings of the Zoning Board of Appeals that the proposed use meets the following standards:

      1.   There is no increase in the intensity of the use of the land, building or structure involved;

      2.   Such change in use will have an equal or less detrimental effect or negative impact on neighboring property than the existing nonconforming use it is replacing; and

      3.   The proposed use is more appropriate to the zoning district than the existing nonconforming use and is desirable and useful in the pursuit of the public interest.

   B.   In permitting such a change in use, the Zoning Board of Appeals may require appropriate conditions and safeguards in accord with the purpose and intent of this ordinance, including the upgrading of the premises to comply as nearly as is practicable with requirements of this ordinance. Notice of approval of the change in nonconforming use (including any conditions) shall be recorded with the Macomb County Register of Deeds prior to the issuance of any permit or certificate of occupancy.

(Ord. No. 278-NN, § 34, 1-6-09)

   A.   The Zoning Board of Appeals may permit the expansion of a nonconforming use or structure upon written findings that the following standards have been met:

      1.   Continuance thereof would not be contrary to the public health, safety or welfare or the spirit and intent of this ordinance;

      2.   That the use, building or structure does not, and is not likely to, significantly depress the value of nearby properties;

      3.   That the use, building or structure was lawful at the time of its inception;

      4.   That no useful purpose would be served by strict application of the provisions or requirements of this ordinance with which the use, building or structure does not conform; and

      5.   Expansion will not have an adverse impact on adjoining property.

   B.   In permitting such an expansion of a nonconforming building or use, the Zoning Board of Appeals may require appropriate conditions and safeguards in accord with the purpose and intent of this ordinance, including upgrading the premises to comply as nearly as is practicable with requirements of this ordinance. Notice of approval, including any conditions attached, shall be recorded with the Macomb County Register of Deeds prior to the issuance of any permit or certificate of occupancy. Any failure to satisfy a condition of approval shall constitute a separate violation of the Zoning Ordinance.

   C.   The following procedural remedies shall be available to enforce conditions of approval imposed by the Zoning Board of Appeals relating to an approval of an expansion of a non-conforming use:

      1.   If the City Manager or his/her designate reasonably believes, based upon available information, that the applicant, property owner, or occupant for whom an expansion of a non-conforming use has been approved has failed to satisfy the conditions of approval, the city may, through the authorized official designated below, take any of the following actions in order to obtain compliance:

         a.   The Building Official, Code Enforcement Officer, Fire Marshal, Police Officer, or other city employee authorized to issue appearance tickets or civil infractions may issue an ordinance complaint or civil infraction to be prosecuted in the District Court based upon his/her observations or investigation, or may ask the city attorney to request issuance of a warrant for an ordinance complaint based upon the information or evidence presented to him/her that there has been a violation of the City Code or Zoning Ordinance.

         b.   The City Manager or his/her designate based upon available information or evidence may request the Zoning Board of Appeals to conduct a hearing in accordance with the procedure set forth in paragraph 2 below to determine whether the conditions of approval have been satisfied, and if not, whether the conditions imposed upon the expansion of a non-conforming use should be enforced, or the approval revoked for failing to satisfy the conditions.

         c.   After City Council authorization, the city attorney may commence litigation in the Circuit Court to require the responsible party to satisfy the conditions, abate violation of the City Code or Zoning Ordinance as authorized by law, or request revocation of the approval.

         d.   The City through the appropriate authorized official may take any other enforcement or remedial action authorized by law.

      2.   If the Zoning Board of Appeals receives a request from the City Manager or his/her designate supported by credible information that the applicant, property owner, or occupant for whom an approval of expansion of a non-conforming use has been granted has failed to continuously satisfy the conditions of approval, the Zoning Board of Appeals may conduct a hearing in accordance with the following procedure to review whether the conditions of approval have been continuously satisfied:

         a.   The applicant, property owner, or occupant granted approval of the expansion of a non-conforming use and other persons entitled to notice of the original hearing on the non-conforming use expansion request, shall be advised in writing by the city administration of the date of the meeting at which the Zoning Board of Appeals intends to review whether the conditions of approval have been continuously satisfied, which notice shall be not less than 30 days before the scheduled meeting, except in cases where the public health, safety or welfare is imminently threatened or endangered, in which case a hearing shall be held no earlier than five days after written notice of the meeting date has been given.

         b.   The written notice shall specify the condition(s) of approval relating to the expansion of a non-conforming use with which the applicant, property owner, or occupant is alleged to have failed to continuously satisfy.

         c.   At the hearing, the city administration and other interested parties (or their authorized representatives) shall be given an opportunity to present evidence or information showing that the conditions of approval have not been continuously satisfied.

         d.   At the Zoning Board of Appeals hearing, the applicant, property owner, or occupant and other interested parties (or their authorized representatives) shall be given an opportunity to present evidence or information showing whether the conditions of approval have been continuously satisfied.

         e.   After the Zoning Board of Appeals concludes the hearing, the Board may make its determination as to whether the applicant, property owner, or occupant has continuously satisfied the conditions of approval, whether the applicant, owner or occupant should be given additional time to satisfy the conditions of approval, or whether the conditions of approval should be changed. The Zoning Board of Appeals may determine that the applicant has satisfied the conditions, has failed to satisfy the conditions, or if it deems appropriate, grant an additional time period for compliance or change the conditions of approval. In addition, the Zoning Board of Appeals may revoke the approval of expansion of a non-conforming use or recommend that the City Council commence an action in Circuit Court to enforce the conditions, of approval or to revoke the approval of the expansion of the non-conforming use if the Zoning Board of Appeals determines by majority vote of those members present that the applicant, property owner, or occupant has failed to satisfy one or more of the conditions of approval. The reasons for the Board's action shall be recorded into the record, with a written copy furnished to the applicant, property owner, or occupant after approval certification of the minutes of the meeting at which such action was taken.

         f.   The applicant, property owner, or occupant, or any person who has an interest affected by the Zoning Ordinance who is aggrieved by a final decision of the Zoning Board of Appeals relating to expansion of a non-conforming use, including revocation of an approval, may appeal the decision to the Circuit Court within the time period prescribed by law. A recommendation of Circuit Court action shall not constitute a final decision. The appeal period shall commence on the date the minutes of the Zoning Board of Appeals are certified relating to the Board's decision.

         g.   If the city prevails in any litigation to enforce the conditions of approval relating to expansion of a non-conforming use or to revoke the approval of the expansion, or if the Zoning Board of Appeals revokes approval of the expansion of a non-conforming use as a result of the applicant, property owner, or occupant failing to satisfy the conditions of approval, the applicant, property owner, or occupant shall be required to reimburse the city for any costs incurred in taking such action, including attorney fees, experts fees, court costs, and other expenses incurred. The city may impose a lien against any interest the applicant, property owner, or occupant has in the property to secure payment of such reimbursement.

      3.   The procedures set forth in Section 27.05C1b relating to approvals of expansion of non-conforming uses shall apply only to approvals granted by the Zoning Board of Appeals after the effective date of this amendment to the Zoning Ordinance.

      4.   The City Manager may promulgate administrative rules and regulations necessary to implement and administer the enforcement and hearing procedures set forth in section 27.05 of this ordinance. All rules and regulations shall be effective 30 days after promulgation. Copies of the rules and regulations shall be filed with the City Clerk as of their effective date and shall be subject to public inspection or copying during the city's normal business hours.

(Ord. No. 278-CC, § 13, 6-3-03; Ord. No. 278-EE, §§ 2, 3, 10-5-04; Ord. No. 278-NN, § 34, 1-6-09)

   This section applies to all nonconforming structures and uses, except those which have been granted the right to expand by the Zoning Board of Appeals, as noted in the above section 27.05.

   On any structure or building devoted in whole or in part to any 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% of the assessed value of the building, provided that the cubic content of the building or structure or area of the use or other improvements as it existed at the time of passage or amendment of this ordinance shall not be increased. Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or structure or nonconforming use or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

   Whenever the owner of property upon which a nonconforming use or structure exists desires to modify or alter the site without increasing the nonconformity of the use or structure, the site shall be brought into compliance with the ordinance to the maximum extent possible.

(Ord. No. 278-NN, § 34, 1-6-09)

   There may be a change of tenancy, ownership or management of any existing nonconforming uses of land, structures and premises, provided there is no change in the nature or character of such nonconforming uses, except to bring the use into greater conformity.

   Any use for which a special land use approval is required is permitted as provided in this ordinance and shall not be deemed a nonconforming use, but shall without further action be deemed a conforming use in the district. Such use shall remain subject to all of the provisions of the special land use section of this ordinance for use, enlargement, change or addition of activities.

   A.   In any district in which single family dwellings are permitted, a single family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this ordinance; provided that yard setback dimensions and all other requirements not involving area or width, or both, shall conform to the regulations for the district in which such lot is located. Variance to yard requirements may be obtained through approval of the Zoning Board of Appeals.

   B.   If two or more lots or combinations of lots and portions of lots with a continuous frontage and single ownership are of record at the time of passage or amendment of this ordinance or any time thereafter, and if all or part of the lots do not meet the requirements for lot width or area as established by this ordinance, the lands involved shall be considered an undivided parcel for the purpose of this ordinance, and no portion of said parcels shall be used or occupied which does not meet lot width and area requirements established by this ordinance, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirement stated in this ordinance.

(Ord. No. 278-NN, § 34, 1-6-09)