5-2.1   APPLICABILITY

(A)

Definition .....Any use of land or a building is considered nonconforming if:

(1)

Not Permitted in Zoning District. .....The use is not permitted in the zoning district in which it is located; and,

(2)

Existed as of Effective Date. .....The use existed on April 3, 1967 and continues to exist, the use legally existed as of the effective date of this Ordinance, or the use legally existed as of the effective date of subsequent amendments thereto.

(B)

H District .....In any H District, the provision of this section shall not apply. Regulations governing nonconforming uses in the H District are contained in Section B.4.

5-2.2   CONTINUATION

Nonconforming uses as defined above in Section B.5-2.1(A) may continue under the provisions of this Article, except as provided in Sections B.5-2.8 and B.5-2.9.

5-2.3   EXPANSION OF A NONCONFORMING USE

(A)

Purpose .....The purpose of the following requirements is to authorize a limited expansion of nonconforming uses.

(B)

Special Use Permit .....A special use permit from the Board of Adjustment is required for any expansion of a nonconforming use. Application shall be made in accordance with the requirements of Section B.6-1.4.

(C)

Internal Expansion of a Nonconforming Use .....Any nonconforming use may be extended throughout the same building; provided, however, that the building itself may not be enlarged or expanded. Except with regard to nonconforming uses affected by Section B.5-2.3(D)(2), the nonconforming use may not be extended into any other building not already being used for the nonconforming use; nor may the nonconforming use be moved completely from one building into any other building not already being used for the nonconforming use.

(D)

External Expansion Including Demolition and Expanded Reconstruction .....Except with respect to those uses specified in Sections B.5-2.3(D)(7) and B.5-2.9, the Board of Adjustment shall have authority to issue a special use permit for the expansion, which may include demolition and expanded reconstruction, of a building which contains a nonconforming use or the expansion of a nonconforming use of open land; provided, under the following circumstances, the following limitations, conditions, and provisions are met:

(1)

Expansion Limitations, General. .....Except with regard to nonconforming uses affected by Section B.5-2.3(D)(2), no expansion, with or without demolition and reconstruction, of a building which contains a nonconforming use, shall be permitted which would result in any increase in the size of the building in excess of:

(a)

Twenty-five percent (25%) of the floor area lawfully existing as of the effective date establishing the nonconforming status of the use; or,

(b)

Twenty-five percent (25%) of the cubical content of the building lawfully existing as of the effective date of establishing the nonconforming status of the use.

There shall be only one such expansion permitted, regardless of the size of the expansion.

(2)

Expansion Limitations, Large Site. .....For nonconforming uses located on sites in excess of fifty (50) acres, no expansion, with or without demolition and reconstruction, of a building which contains a nonconforming use; or no new construction of a building intended to contain one or more of the existing nonconforming uses, shall be permitted which would result in an increase in the grand total square footage of buildings containing nonconforming uses on the zoning lot in excess of:

(a)

A maximum twenty-five percent (25%) of the floor area of all buildings lawfully existing on the zoning lot as of the effective date establishing the nonconforming status of the use; or

(b)

A maximum twenty-five percent (25%) of the cubical content of all buildings lawfully existing on the zoning lot as of the effective date of establishing the nonconforming status of the use.

There shall be no time limit during which said expansion authorized under this subsection may be completed. Applicant shall file a master plan meeting the site plan requirements for expansion of nonconforming uses of this section at the time of initial application to the Board of Adjustment for expansion of the nonconforming use showing all intended improvements to be completed according to this subsection. Said plan shall include locations and total area of proposed uses. Once the plan is approved, subsequent expansions meeting the provisions of the master plan may be approved administratively by the Director of Inspections; subsequent deviations from the master plan in terms of different uses, size or locations of structures, must be submitted to and approved by the Board of Adjustment.

(3)

Unenclosed Canopy. .....The intent of this section is to permit one expansion of a canopy in addition to one expansion of the structure. Where the proposed expansion consists of the construction of an unenclosed canopy at a service station, drive-through bank, or other similar use, said canopy shall not be limited to the twenty-five percent (25%) of floor area standard referred to herein, but shall be limited to an expansion of three (3) times the enclosed floor area of the structure which lawfully existed at 12:01 a.m. on the effective date of this Ordinance or September 16, 1968, whichever is applicable; provided the expansion shall not exceed one thousand (1,000) square feet. The unenclosed canopy shall not later be enclosed.

(4)

Increase in Land Area. .....No expansion of a nonconforming use of open land shall be permitted which would result in any increase in the land area of such nonconforming use in excess of twenty-five percent (25%) of the land area of such nonconforming use lawfully existing as of the effective date of this Ordinance or September 16, 1968, whichever is applicable. There shall be only one such expansion.

(5)

Expansion onto Lot Not Currently Used for Nonconforming Use. .....No expansion of either a building which contains a nonconforming use or a nonconforming use of open land may extend onto any lot no part of which is being used for the nonconforming use proposed for expansion.

(6)

Burden of Proof. .....Each applicant for a special use permit to expand a building which contains a nonconforming use and/or to expand a nonconforming use of open land shall have the burden of proving the floor area and cubical content of the building and/or the land area occupied by the nonconforming use to which the application applies, as it lawfully existed as of the effective date establishing the nonconforming status of the use.

(7)

Nonconforming Uses Which May Not Be Expanded. .....The following uses, if they are or become nonconforming by virtue of the adoption of this Ordinance or subsequent amendments, may not be expanded:

(a)

Motor Vehicle Dismantling and Wrecking Yard;

(b)

Building Materials Supply;

(c)

Implement Sales and Service;

(d)

Storage and Salvage Yard; or,

(e)

Signs.

(8)

Prohibitions on Variances. .....The Board of Adjustment may not grant variances of any yard requirements, off-street parking requirements, or any other applicable provisions of the Zoning Ordinance to allow for the expansion of a nonconforming use.

(E)

Co-location of Transmission Towers

(1)

Co-location Permitted. .....There shall be no limitation as to the number of such additional antennas and ground buildings at existing nonconforming transmission tower sites as long as the co-location does not increase the existing fenced in area on the ground for the tower and equipment. Any increase in the fenced in ground area must be approved by a Special Use Permit from the Board of Adjustment and shall be subject to the expansion limitations set forth in Section B.-2.3.

(2)

Additional Buildings and Equipment. .....All additional buildings and equipment must comply with the setback, buffering, and other requirements of Section B.2-5.73, the use conditions for transmission towers.

(3)

Existing Improvements. .....Prior to granting any permits for co-location on a transmission tower site, the current fencing, signage, bufferyard, and control of land provisions of Section B.2-5.73 must be met, except that where the size of the site, the existing location of improvements currently on the site, or other physical features of the site or adjacent property prevent the applicant from complying with the full dimensional requirements of the Ordinance, then Planning and Inspection staffs may in consultation approve a site plan which attempts to meet the intent of the Ordinance but does not meet the full requirements of the use conditions (such as a reduced width of a bufferyard, use of fencing in lieu of some or all plant material, or use of adjacent property for part or all of the bufferyard). The width and condition of access easements must also be reviewed and approved.

(4)

Height. .....No co-location proposed under this section shall result in an increase in the height of a transmission tower.

(5)

Structural Integrity. .....Prior to issuance of any permits approving a co-location, written verification certifying that the host tower is structurally and mechanically capable of supporting the proposed additional antenna or configuration of antennas must be submitted by a qualified engineer.

(6)

Co-location of Small Wireless Facilities. .....Collocation of small wireless facilities shall be defined in conformance with federal and state law, including the standards defined in G.S. 160D 930-938.

(F)

Conditions .....In approving an application for the issuance of a special use permit, the Board of Adjustment may impose additional reasonable and appropriate conditions and safeguards to protect the public health and safety, the value of neighborhood properties, and the health and safety of neighboring residents. Among other things, the Board of Adjustment may include in the permit conditions or restrictions to insure that the permitted expansion will not result in a change from the existing nonconforming use to another nonconforming use. If the Board of Adjustment denies the application for the issuance of a special use permit, it shall enter the reasons for the denial in the minutes of the meeting at which the action was taken.

(G)

Failure to Comply .....Any special use permit issued pursuant to the provisions of this section shall become void as specified in Section B.5-2.3(H) for failure to comply with any conditions or restrictions which are incorporated in or made a part of the permit.

(H)

Permitted Time .....Any special use permit issued pursuant to the provisions of this section shall become void if the terms of such permit, in the judgment of the Director of Inspections, are not exercised with a period of two (2) years from the date of approval. Special use permits are also subject to the provisions in Section B.1-5.2.

(Ord. of 6-24-21)

5-2.4   CONVERSION OF CERTAIN NONCONFORMING USES PERMITTED

(A)

Special Use Permit Required .....A special use permit from the Board of Adjustment is required for conversion of nonconforming uses. Application shall be made in accordance with the requirements of Section B.6-1.4.

(B)

Conversion of Nonconforming Use to Another Use .....The Board of Adjustment may authorize the conversion of a nonconforming use to another use which, in the judgment of the Board of Adjustment, is less intensive in character or is essentially of the same character as the original nonconforming use, except that no nonconforming use shall be changed to any of the following uses:

(1)

Motor Vehicle Dismantling and Wrecking Yard;

(2)

Building Materials Supply;

(3)

Implement Sales and Service;

(4)

Storage and Salvage Yard; or,

(5)

Signs.

5-2.5   APPLICATION PROCEDURE

(A)

Site Plan Requirements .....Each application for a special use permit to expand or convert a nonconforming use according to the provisions of this Ordinance shall be accompanied by a legible site plan in fifteen (15) copies at a reasonable scale satisfactory to the Board of Adjustment and shall illustrate all existing conditions of the site and all proposed improvements to be made on the site, including:

(1)

Parking Spaces;

(2)

Loading Areas;

(3)

Screening and Landscaping;

(4)

Driveways, Walkways, Courts;

(5)

Buildings and Additions;

(6)

Easements or Rights-of-Way;

(7)

Adjacent Property Lines and Ownership; and,

(8)

Zoning of All Adjacent Properties.

(B)

Site Plan Review .....Copies of each site plan shall be reviewed by the Planning staff and other personnel as determined by the Director of Inspections for recommendation before any action is taken by the Board of Adjustment.

5-2.6   REQUIRED ALTERATIONS OR REMODELING

In the interest of the public safety and health, structural alterations or remodeling required by any public law, and so ordered by a public officer in authority, shall be permitted. This shall not be construed to permit any structural alterations that will increase the floor area or cubicle content of the structure.

5-2.7   RECONSTRUCTION AFTER DEMOLITION OR DESTRUCTION

(A)

Reconstruction Permitted .....Any structure maintained as a nonconforming use may be reconstructed on the same lot, provided the certificate of occupancy for such reconstruction shall be issued:

(1)

Permit. .....Within two (2) years of demolition or destruction of the building pursuant to a validly issued permit;

(2)

Area. .....Without any increase in the cubical content or floor area, except that an increase in the cubical content or floor area not to exceed twenty-five percent (25%) may be permitted with issuance of a special use permit by the Board of Adjustment, and if the one time twenty-five percent (25%) expansion has not previously been permitted; and,

(3)

Location. .....Without any change in location except to provide greater front, side, or rear yard areas.

(B)

No Conversion of Nonconforming Use Permitted .....The use to which a structure is put after reconstruction may not result in a change from the nonconforming use which existed immediately prior to reconstruction, except to conform to current zoning.

(C)

Findings .....No such permit shall be issued unless the Board of Adjustment shall find that the proposed expansion of the nonconforming use:

(1)

Will not materially adversely affect the use, enjoyment, or value or surrounding properties.

(2)

Will not create undue traffic congestion;

(3)

Will not result in any significant increase in lighting, offensive odors, noise, vibration, smoke, dust, or fumes;

(4)

Will not violate or result in the violation of any dimensional requirements, off-street parking requirements, sign regulations or any other applicable provisions of the Zoning Ordinance.

5-2.8   DISCONTINUANCE

(A)

Applicability .....Any nonconforming use which has been discontinued shall not thereafter be reestablished. Any structure or land formerly devoted to a nonconforming use, which has been discontinued, shall not again be devoted to any use other than those uses permitted in the applicable district.

(B)

Definition .....The term discontinuance shall mean the voluntary termination or cessation of a use. Any one of the following shall constitute conclusive evidence of discontinuance:

(1)

Any positive act indicating such discontinuance;

(2)

Failure to take all necessary steps to resume the nonconforming use with reasonable dispatch in the circumstances, including failure to advertise the property for sale or lease;

(3)

Regardless of intent, discontinuance of any nonconforming use of a building or any portion thereof for a period of one consecutive year, or of land for a period of thirty (30) consecutive days;

(4)

In the case of a building or portion thereof, discontinuance of the nonconforming use for a period of three hundred sixty-five (365) consecutive days, unless the use is vested under the provisions of Section B.1-5.2(B)(2)(a)(i), in which case the period shall be two (2) years;

5-2.9   AMORTIZATION OF NONCONFORMING USES

See Section B.3-2.1(K) and (L) for the amortization schedule of nonconforming signs.

(WA-UDO-14, § 4, 3-25-10)

5-3.1   DEFINITION

Any vacant lot is considered nonconforming if:

(A)

Not Meet Dimensional Requirements .....The lot does not meet all the dimensional requirements of the zoning district in which it is located; and,

(B)

Existed As of Effective Date .....The lot existed on April 3, 1967; the lot legally existed as of the effective date of this Ordinance; or the lot legally existed as of the effective date of subsequent amendments.

5-3.2   COMBINATION OF NONCONFORMING VACANT LOTS AND NONCONFORMING VACANT LOTS APPROVED PRIOR TO DECEMBER 31, 1994

(A)

Combination of Nonconforming Lots .....This section shall not be construed as prohibiting the erection of a use on a lot which was in existence on April 3, 1967; and even though the lot is nonconforming, provided that:

(1)

Same Ownership. .....Such lot does not abut upon one or more unoccupied lots in the same ownership with which it could be combined; and,

(2)

Water and Sewage Disposal. .....Water supply and sewage disposal facilities for such lot are approved in accordance with Section B.3-10.

(B)

Nonconforming Lots Approved Prior to December 31, 1994 .....Notwithstanding the provisions of Section B.5-3.2(A), the following categories of nonconforming vacant lots may be issued a zoning permit in accordance with the uses permitted in the zoning district:

(1)

Final Plat Approval. .....Any lot which has received final plat approval as of December 31, 1994, under the major subdivision process contained in the Subdivision Ordinances;

(2)

Approval Pursuant to Section D.4.(E)(2). .....Any lot which has received final plat approval pursuant to a subdivision granted preliminary approval prior to December 31, 1994, according to the provisions of Section D.4.(E)(2); or,

(3)

Minor Subdivision. .....Any lot legally created by deed or a minor subdivision process after April 3, 1967 and prior to December 31, 1994, which met the standards of the Zoning Ordinance in effect at the time of its creation.

(C)

Nonconforming Lots in the AG and YR Districts. .....Any nonconforming lot meeting the requirements of Section B.5-3 and located in the YR or AG Districts must meet the minimum setback requirements of the RS-20 Zoning District.

5-3.3   H DISTRICT

In any H District, the provisions of this section shall not apply. Regulations governing nonconforming vacant lots in the H District are contained in Section B.4.

5-4.1   APPLICABILITY

(A)

Definition .....Any structure or improvement to real property is considered nonconforming in any of the following circumstances:

(1)

The location of any structure or improvement on the lot results in a violation of the dimensional requirements or other applicable requirements of this Ordinance provided:

(a)

The structures or improvements existed on April 3, 1967 and continue to exist; or

(b)

The structures or improvements legally existed as of the effective date of this Ordinance and continue to exist; or

(c)

The structures or improvements legally existed as of the effective date of subsequent amendments of this Ordinance and continue to exist.

(2)

If, as the result of the acquisition or condemnation of property for a public purpose by an entity having the power of eminent domain, the location of any structure or improvement on a lot thereby violates the dimensional requirements or other applicable requirements of this Ordinance.

(B)

H District .....In any H District, the provisions of this section shall not apply. Regulations governing nonconforming structures or improvements in the H District are contained in Section B.4.

5-4.2   CONTINUATION

Nonconforming structures and improvements devoted to a use permitted in the zoning district in which it is located may continue to be used and occupied in compliance with this section.

5-4.3   MAINTENANCE, RENOVATION, EXPANSION, RECONSTRUCTION AND PARKING

(A)

Maintenance .....Normal repair and maintenance may be performed to allow the continuation of nonconforming structures or improvements.

(B)

Renovation .....Renovation of nonconforming structures or improvements is permitted if the renovation does not increase the floor area or cubical content of the structure or the area of any improvement.

(C)

Expansion .....Expansion of nonconforming structures or improvements is permitted under the following provisions:

(1)

Expansion Complies With Ordinance. .....The proposed expansion of the nonconforming structure or improvement conforms to the dimensional requirements and other standards of this Ordinance; and,

(2)

Other. .....The proposed expansion of the nonconforming structure or improvement conforms to the parking requirements of Section B.3-3, the bufferyard requirements of Section B.3-5, and the TO District provisions of Section B.2-1.6(B). The bufferyard standards shall apply to the entire zoning lot, not to remaining vacant land existing as of the effective date of this Ordinance.

(D)

Reconstruction .....Any nonconforming structure or improvement which is demolished or destroyed may be reconstructed on the same lot, provided such reconstruction shall be accomplished:

(1)

Permit. .....Pursuant to a validly issued permit within two (2) years of demolition or destruction of the structure or improvement;

(2)

Area. .....Without any increase in the cubical content or floor area;

(3)

Location. .....Without any change in location except to provide greater front, side, or rear yard areas; and,

(4)

Time. .....Within two (2) years from issuance of a building permit.

(E)

Parking for Nonresidential Structures built prior to March 7, 1988. .....Nonresidential structures that are nonconforming as to off-street parking requirements in GMA 1 and GMA 2 may change uses within the building without any requirement to increase existing off-street parking on the zoning lot including zoning lots without any off-street parking. This exemption includes all permitted uses except the uses of "Restaurant (without drive-through service)" and "Restaurant (with drive-through service)". A Special Use Permit from the Elected Body in accordance with Section B.6-1.5 must be granted for restaurant uses. Additions to these nonresidential structures shall be permitted in accordance with section B.5-4.3 (C), however, no new additions shall be permitted which would eliminate any existing off-street parking on the zoning lot unless the number of parking spaces remaining meets the number required by the Zoning Ordinance for the zoning lot. Removal of parking spaces to comply with the requirements of Section B.3-4.3(C)(4) shall be permitted.

(WA UDO-18(2), § 1, 7-25-13)

5-4.4   REQUIRED IMPROVEMENTS FOR CERTAIN NONCONFORMING STRUCTURES AND IMPROVEMENTS

If the structures and improvements devoted to the following uses are or become nonconforming with respect to one or more development standards by virtue of adoption of this Ordinance or subsequent amendment, the nonconforming structure and improvements shall meet the development standards and time periods for compliance contained in the sections of this Ordinance specified below:

(A)

Land Clearing and Inert Debris Landfills. Section B.2-5.39.

(B)

Manufactured Housing Developments. Section B.2-5.47.

(C)

Motor Vehicle Dismantling and Wrecking Yard. Section B.2-5.51.

(D)

Motor Vehicle Storage Yards. Section B.2-5.53.

(E)

Storage and Salvage Yards. Section B.2-5.70.