(a)

Within the districts established by this ordinance there exist lots, structures, and uses of land and characteristics of use which were lawful before the effective date of this ordinance that would now be prohibited, regulated, or restricted by this ordinance. It is the intent of this ordinance to permit these nonconformities to continue until removed, but not to encourage their survival. It is also the intent to encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this ordinance.

(b)

Those uses which cannot be proved conclusively to have legally existed prior to the effective date of this ordinance are hereby declared illegal uses and shall be subject to enforcement under the provisions of this ordinance.

(c)

Nonconforming uses and structures are declared to be incompatible with the district in which they are located. Except as may be permitted by this article, a nonconforming use or structure shall not be permitted to increase its nonconformity.

(d)

With an understanding that not all nonconforming uses, buildings or structures are a detriment to the community or the neighborhood, it is in the public interest to distinguish between nonconforming uses, buildings or structures which should be eliminated as quickly and those that may be eliminated over time.

(e)

To avoid undue hardship, nothing in this article shall be deemed to require a change in the plans, construction or designated use of any structure on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this article, and upon which actual building construction has been diligently carried on. Actual construction is hereby defined to mean that the property owner has begun substantial construction under a lawfully-issued building permit.

(Ord. No. 09-434, § 24.01, 1-20-2009)

The lawful use of any land or structure existing and lawful on the effective date of this ordinance or amendment thereto, may be continued, even though the use does not conform with the use provisions of this ordinance, subject to the provisions of this section:

(a)

Expansions to nonconforming uses of buildings. An existing structure devoted to a nonconforming use shall not be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the zoning district in which it is located, unless approved by the zoning board of appeals (ZBA) in accordance with article 26, zoning board of appeals (ZBA).

(b)

Restoration of damage. If a structure that is occupied by a nonconforming use is damaged by any means or in any manner to the extent that the cost of reconstruction or restoration exceeds 50 percent the value of such structure prior to the damaging occurrence, as determined by the most recent assessment of the market value of the structure, excluding the value of land, for purposes of taxation, such structure may be reconstructed or restored only if its use conforms with the provisions of this ordinance.

(c)

Repairs to nonconforming use. On any structure devoted in whole or in part to any nonconforming use, other than a single-family dwelling, 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 25 percent of the current replacement value of the structure, provided that the structure is not enlarged, extended, moved or structurally altered.

(d)

Safety repairs. Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any department charged with protecting the public safety, upon order of such department.

(e)

Expansion to nonconforming uses of land. A nonconforming use of land not involving a building or structure shall not be enlarged increased or extended to occupy a greater area of land than was occupied on the effective date of this ordinance, or amendment thereto. A nonconforming use of land shall not be moved in whole or in part to any other portion of the lot occupied by the use on the effective date of this ordinance, or amendment thereto.

(f)

Structure and land in combination. 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.

(g)

Prohibition on reestablishment if replaced by conforming use. If a nonconforming use is terminated and replaced by a permitted use, such nonconforming use shall not be later reestablished.

(h)

Discontinuance or termination of nonconforming use. When a nonconforming use is discontinued or abandoned for 12 consecutive months, the structure or structure and land in combination, shall not thereafter be used except in conformance with the regulations of the zoning district in which it is located. A nonconforming use shall be determined to be abandoned if one or more of the following conditions exist, and which shall be deemed to constitute intent on the part of the property owner to abandon the nonconforming use:

(1)

Utilities, such as water, gas and electricity to the property, have been disconnected.

(2)

The property, buildings, or grounds have fallen into disrepair.

(3)

Signs or other indications of the existence of the nonconforming use have been removed.

(4)

Removal of equipment or fixtures which are necessary for the operation of the nonconforming use.

(5)

Other actions, which in the opinion of the development services department, constitute an intention on the part of the property owner or lessee to abandon the nonconforming use.

(i)

Change of nonconforming use to another nonconforming use. A nonconforming use of a structure may be changed to another nonconforming use, subject to the prior approval of the ZBA. The ZBA may approve such change only if it complies with all of the following standards:

(1)

The proposed use does not substantially differ from the existing use in terms of compatibility with the character of the area in which it is located.

(2)

The proposed use does not increase the degree of nonconformity existing prior to such change of use.

(3)

No structural alteration of the existing structure will be required to accommodate the new use.

(j)

Change of tenancy, ownership or management. There may be a change of tenancy, ownership or management of a nonconforming use, provided there is no change in character to the nonconformity and that all building and fire codes are met.

(Ord. No. 09-434, § 24.02, 1-20-2009)

Structures and buildings that are existing and lawful on the effective date of this ordinance or amendments thereto, may be continued even though the structure or building does not conform with the dimensional or other provisions of this ordinance, subject to the following provisions of this section.

(a)

Restrictions on creating nonconformities. Nonconforming structures and buildings shall not be enlarged nor altered in a way which increases its nonconformity within the provisions of this ordinance, unless approved by the ZBA in accordance with article 26, zoning board of appeals (ZBA).

(b)

Restrictions on alteration or modification. If a nonconforming structure or building is altered or modified so as to eliminate, remove or lessen any or all of its nonconforming characteristics, then the nonconforming characteristics shall not be later reestablished or increased.

(c)

Restrictions on damage replacements exceeding one-half of value. In the event that any nonconforming structure or building is damaged by any means or in any manner to the extent the cost of reconstruction or restoration exceeds 50 percent of the value of the structure prior to the damaging occurrence as determined by the development services department based upon the most recent assessment of the market value of the structure, exclusive of the market value of land, reconstruction or restoration shall only be permitted in conformity with the provisions of this ordinance, except as otherwise provided herein.

(d)

Restrictions on damage replacements less than or equal to one-half of value. In the event that any nonconforming structure or building is damaged by any means or in any manner to the extent the cost of reconstruction or restoration is equal to or less than 50 percent of the value of the structure prior to the damaging occurrence, as determined by the development services department based upon the most recent assessment of the market value of the structure, exclusive of the market value of land, reconstruction or restoration shall be permitted, provided a building permit for reconstruction or restoration is issued within one year of the occurrence of the damage.

(e)

Reconstruction of a damaged residential structure. In the event a nonconforming residential structure or building is damaged by fire or other natural cause, a residential structure may be reconstructed on the same foundation provided the first floor footprint and the total floor area does not exceed the size of the previous residence, except as provided for in subsection (h) below.

(f)

Repairs, improvements and modernization. Repairs, improvements, or modernization of nonconforming structures and buildings shall be permitted provided the repairs or improvements do not exceed 50 percent of the value of the building or structure during any period of 12 consecutive months. This cost/value calculation shall not include any costs associated with modernization of electrical, plumbing, heating or cooling systems to meet state construction code requirements. However, if a nonconforming structure or a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of maintenance and repairs and is declared as such by the development services department, it shall not thereafter be restored, repaired, or rebuilt except in full conformity with the regulations in the district in which it is located.

(g)

Permitted building improvements. A building that is nonconforming may be altered or rehabilitated if such activity will make the building conform to the regulations of this ordinance and the state construction code.

(h)

Expansion of a nonconforming residential building. A residential nonconforming building may be expanded provided the expansion will be within required setbacks and other dimensional and state construction code requirements are met (spacing between structures, height, maximum lot coverage, etc.). For example: a home with a nonconforming front yard setback may be expanded in the rear so long as the rear yard setback remains conforming and maximum lot coverage is not exceeded and a home may add additional stories provided the new stories meet current setbacks.

(i)

Permitted expansion of nonresidential nonconforming buildings. Nonresidential nonconforming buildings shall not be expanded, unless a variance is obtained from the ZBA in accordance with article 26, zoning board of appeals (ZBA).

(Ord. No. 09-434, § 24.03, 1-20-2009)

(a)

Use of nonconforming lots.

(1)

Any nonconforming lot shall be permitted to be used for a use permitted in the district in which it is located, subject to all buildings and structures meeting the dimensional setback requirements of the district.

(2)

In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this ordinance, a single-family dwelling along with customary accessory buildings may be erected on any single lot of record in existence at the effective date of adoption or amendment thereto. The lot may be developed without the need for a variance from the ZBA to lot area or width requirements, provided all setbacks and other requirements can be met.

(b)

Variance to area and dimensional requirements. If the use of a nonconforming lot requires a variation in minimum floor area or dimensional (minimum setback and maximum height) standards, then the use shall be permitted only if a variance is granted by the ZBA in accordance with article 26, zoning board of appeals (ZBA).

(Ord. No. 09-434, § 24.04, 1-20-2009)

(a)

Nonconforming sites. The city may permit improvements and minor modifications to a conforming use and building on a site that does not meet all of the various site improvement related regulations of this ordinance. This section is intended to allow gradual compliance with the site related requirements for sites which predate the various zoning ordinance standards for landscaping, paving, lighting, signage and other nonsafety site related items proportionate to the amount of expansion or improvement proposed to the use or building. Improvements or expansions may be permitted by the planning commission during site plan review without a complete upgrade of all site elements under the following conditions:

(1)

The applicant is proposing reasonable site improvements on the overall site in relation to the scale and construction cost of the building improvements or expansion.

(2)

The applicant has addressed safety related site issues on the overall site.

(3)

The improvements or minor expansion will not increase noncompliance with site requirements.

(4)

All driveways that do not conform with the access standards of this ordinance shall be eliminated, provided that the minimum reasonable access shall be maintained, as determined by the standards of article 17, off-street parking, loading, access and circulation requirements.

(5)

Nonconforming signage is removed or replaced with conforming signage.

(b)

Nonconforming parking. Parking areas that are nonconforming in terms of required number of spaces, landscaping, setback, lighting or other requirement of this ordinance, shall be brought into compliance with this ordinance under the following conditions:

(1)

Whenever a parking area is expanded by an area that is 50 percent or more of the original area.

(2)

Whenever 25 percent or more of the surface area of the parking area is reconstructed (existing pavement removed and replaced).

(c)

Nonconforming landscaping and screening. Sites that are nonconforming by reason of landscaping or screening required by this ordinance, either by required area, materials or other requirement of this ordinance, shall be brought into compliance with this ordinance under the following conditions:

(1)

Whenever the size of the nonconforming site (building, parking and outdoor storage) is expanded by an area that is 50 percent or more of the original nonconforming area, all landscaping on the site shall be brought into compliance with this ordinance.

(2)

Whenever 25 percent or more of the surface area of the landscaped area is reconstructed (existing materials and ground cover removed and replaced) the reconstructed portion of the landscaped area shall be brought into compliance with this ordinance.

(3)

Nothing in this subsection shall be construed to require the removal of vegetation that was preserved as part of the original construction of the landscaped area.

(4)

In all instances, required screening walls for waste receptacles, fencing of outdoor storage or screening from adjacent residential uses shall be provided.

(d)

Nonconforming lighting. Sites that are nonconforming by reason of lighting required by this ordinance, either by fixture type or height, coverage, or other requirement of this ordinance, shall be brought into compliance with this ordinance under the following conditions:

(1)

Whenever the size of the site covered by lighting is expanded by an area that is 50 percent or more of the original area covered by nonconforming lighting, new lighting and all existing lighting on the site shall be brought into compliance with this ordinance.

(2)

Whenever 25 percent or more of the existing light poles and/or fixtures present are replaced by new poles, bases, or fixtures all lighting on the site shall be brought into compliance with this ordinance.

(e)

Nonconforming building materials.

(1)

Whenever a building permit is required for a structural alteration, addition or repair to a building when the estimated expense of that construction exceeds 25 percent of the appraised replacement cost of the entire building or structure, exclusive of the foundation, prior to its improvement (as determined by the development services department), that part of the building undergoing improvement shall be brought into compliance with this ordinance.

(2)

The development services department may waive this requirement unless the change in materials would be compatible with surrounding uses, protect the investment of adjacent landowners, blend harmoniously into the streetscape, and maintain a positive image for the city.

(f)

Nonconforming signs. Nonconforming signs are regulated in section 18.0, nonconforming signs.

Where a nonconforming front yard setback, parking lot setback or greenbelt is created as a result of additional street right-of-way width being acquired by a street agency, the building or parking lot may be improved or expanded without the need to obtain a variance from the ZBA in accordance with article 26, zoning board of appeals (ZBA), provided the following conditions are met:

(a)

The building or parking lot complied with the front yard setback prior to the acquisition of the additional street right-of-way.

(b)

The building or parking lot expansion will not reduce the depth of the front yard setback.

(c)

All other ordinance requirements are met and necessary approvals obtained.

(Ord. No. 09-434, § 24.06, 1-20-2009)