The purpose of this chapter is to recognize the existence of uses, buildings, lots, structures, and conditions that lawfully existed at the time of this Zoning Code's enactment, or amendment thereto, but which now do not conform with one or more of the regulations contained in this Zoning Code. Non-conforming status is considered to be incompatible with permitted uses, buildings, lots, conditions, and structures. Therefore, non-conforming uses, buildings, lots, structures and site conditions are subject to regulations limiting their use, restoration, reconstruction, extension, and substitution. The regulations in this chapter are established in order to achieve the following purposes:

   (a)   To permit the continuance, but control of non-conforming uses so as to minimize any adverse effects the uses might have on the adjoining properties and development;

   (b)   To regulate the maintenance and repair of non-conforming uses and structures;

   (c)   To regulate the rebuilding of non-conforming uses and structures, if substantially destroyed;

   (d)   To require the permanent discontinuance of non-conforming uses, if not operated for certain periods of time;

   (e)   To bring about eventual conformity of all uses in accordance with the objectives of the Master Plan and Zoning Code of the Village; and,

   (f)   To establish regulations for the development of non-conforming lots.

(Ord. 2009-17. Passed 9-15-2009.)

   (a)   The lawful use of any dwelling, building or structure, and of any land or premises as existing and lawful at the time of enacting this Code, or any amendments thereto, may be continued although such use does not conform to the provisions of this Code. The completion, restoration, reconstruction, extension or substitution of non-conforming uses shall be subject to the provisions and conditions set forth in this chapter and this Code.

   (b)   The provisions of this chapter shall also apply to any building, structure, land, site condition, or other use hereafter becoming non-conforming as a result of amendments made to this Zoning Code or Zoning Map.

   (c)   A non-conforming lot, use, building, site condition, or structure does not include non-conformity with regulations pursuant to a legally granted variance from a zoning regulation.

   (d)   Ordinary repairs, or repair or replacement of non-bearing walls, fixtures, wiring, or plumbing may be performed on a non-conforming structure or on any portion of a structure that contains a non-conforming use provided that the cubic content shall not be increased and no structural parts shall be replaced except when required by law to restore such building or structure to a safe condition or to make the building or structure conform to the regulations of the district in which it is located.

(Ord. 2009-17. Passed 9-15-2009.)

   A non-conforming use may be continued so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following regulations:

   (a)   Change or Substitution to Another Non-conforming Use. A non-conforming use of a building, structure or land shall not be changed or substituted to another non-conforming use unless:

      (1)   The Board of Zoning Appeals, on appeal, finds that the use proposed is equally appropriate or more appropriate to the district than the existing non-conforming use, and that the use proposed is in less conflict with the character of uses permitted in the applicable zoning district than the existing non-conforming use, and that the proposed substitution is of no greater intensity than the previous use, pursuant to the criteria in Section 1274.03(c)(1), Expanding Non-conforming Uses and Structures. In permitting such change, the Board of Zoning Appeals may prescribe appropriate conditions and safeguards in accordance with other provisions of this Zoning Code and make such a part of the terms under which the change is granted.

         A.   Whenever a non-conforming use is changed to a less intensive use, such use shall not thereafter be changed to a more intensive non-conforming use.

         B.   Whenever a non-conforming use is changed to a use permitted in the district in which the lot is located, it shall cease to be considered a non-conforming use. Upon such compliance, no non-conforming use shall be made, resumed or reinstated.

         C.   Violation of any conditions and/or safeguards prescribed shall be deemed a violation of this Zoning Code and shall be punishable under Chapter 1260, Enforcement and Penalty.

      (2)   An application is filed with the Board of Zoning Appeals and such application includes payment of the fee established by the Village, and the items required in Section 1258.09, Variances.

   (b)   Land Occupied by Non-conforming Use.

      (1)   Expansion of Non-conforming Use of Land. A non-conforming use of land shall not be physically enlarged, increased, nor extended to occupy a greater area of land than was occupied by the use at the time it became non-conforming.

      (2)   Relocation of Non-conforming Use of Land. A non-conforming use of land shall not be moved in whole or in part to any portion of the lot or parcel other than those portions occupied by the use at the time it became non-conforming.

   (c)   Structures Occupied by Non-conforming Use.

      (1)   Expanding Non-conforming Uses within Structures. Upon approval by the Board of Zoning Appeals, a non-conforming use of an existing structure may be extended throughout any parts of a building that were arranged or designed for such use at the time of adoption or amendment to this Zoning Code, provided the intensity of the non-conforming use is not increased and no such use shall be extended to occupy any land outside such building not previously occupied by such non-conforming use. In determining whether intensity of use is increased, the Board of Zoning Appeals shall consider the following:

         A.   Hours of operation;

         B.   Volume and type of sales;

         C.   Type of processing activity;

         D.   Nature and location of storage;

         E.   Traffic generation by volume, type, and characteristics;

         F.   Parking and loading characteristics; and

         G.   Noise, smoke, odor, glare, vibration, radiation, and fumes.

      (2)   Expansion of Building(s). No such building shall be enlarged or expanded to increase the non-conforming use. No additional structures shall be constructed in connection with such a non-conforming use.

      (3)   Alteration or Reconstruction of a Building Occupied by a Non-conforming Use. No building or structure occupied by a non-conforming use shall be altered, improved, or reconstructed except when:

         A.   The use is changed to a use permitted in the district in which it is located; or,

         B.   The building, or portion thereof, is demolished by any means that is not the voluntary action of the property owner, in which case the building(s) may be reconstructed substantially the same as existed prior to destruction. Substantially the same is related to the building size and setbacks, the number of parking spaces, parking setbacks, driveway locations, landscaping, screening, etc. Such reconstruction shall be approved by the Planning Commission and such reconstruction pursuant to this section shall not be unreasonably withheld.

   (d)   Discontinuance of Use. Whenever a non-conforming use of a building, part of a building, lot or part of a lot is discontinued for more than one year, such discontinuance shall constitute abandonment of such use and any subsequent use of the building, part of a building, lot or part of a lot shall conform to the use regulations specified by this Code for the district in which such land is located.

(Ord. 2009-17. Passed 9-15-2009.)

   A non-conforming building or structure may continue to be used or occupied by a use permitted in the district in which it is located so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following provisions:

   (a)   Additions and Moving. A non-conforming building or structure shall not be added to, enlarged or moved unless the addition(s) or part(s) moved conforms to the regulations of the district in which it is located.

   (b)   Restoration of Damaged Building or Structure. If a non-conforming building or structure is damaged or destroyed by any means, which is not a voluntary action of the property owner, those portions so destroyed or damaged may be restored substantially the same as existed prior to destruction, provided the reconstruction is begun within twelve months of the damage or destruction. Substantially the same is related to the building size and setbacks, the number of parking spaces, parking setbacks, landscaping, screening, etc. Any restoration that exceeds the original footprint and/or floor area shall comply with subsection 1274.04(a).

   (c)   Change in Principal Use of Building. The principal use of a non-conforming building may be changed to any other use permitted in the district in which it is located so long as the new use complies with all regulations of this Zoning Code specified for such use, except the regulations to which the building did not conform prior to the change in use.

   (d)   Variances from district regulations on area, lot coverage, lot width, height, setbacks, yards, location on the lot may be granted by the Board Zoning Appeals where necessary and where such appeal for a variance meets the requirements of subsection 1258.09(c)(1), Area Variance. The Zoning Administrator may allow the extension of an existing non-conforming building line if the extension maintains the same or creates a greater distance from the lot line.

(Ord. 2009-17. Passed 9-15-2009.)

   A lot of record that, on the effective date of this Zoning Code, or any amendment thereto, does not comply with the lot area and/or lot width regulations of the district in which the lot is located may be used as follows:

   (a)   Existing Buildings on Lots of Record.

      (1)   Existing Building on a Nonresidential Lot. If the lot is occupied by a building, such building shall be maintained and may be repaired, modernized or altered, provided that the building shall not be enlarged in floor area unless the enlarged section(s) complies with all regulations of this Zoning Code, except the lot area and lot width regulations of the district in which the lot is located.

      (2)   Existing Building on a Residential Lot in the Country Home District. If the lot in the Country Home District is occupied by a building, such building shall be maintained and may be repaired, modernized or altered, provided that the building shall not be enlarged in floor area unless the enlarged section(s) complies with all regulations of this Zoning Code, except for the lot area and lot width regulations of the district in which the lot is located.

         A.   Structural alterations or extensions of a residential structure, which is non-conforming only by reason of lot size or lot width, shall be permitted upon approval of the Zoning Administrator.

         B.   The number of dwelling units shall not be increased unless all regulations, including lot area, are complied with.

   (b)   Vacant Single Non-conforming Lot of Record.

      (1)   Single Non-conforming Lot of Record in the Country Home District. A vacant, non-conforming lot in the Country Home District that is in separate ownership and not of continuous frontage with other lots in the same ownership shall be permitted to be developed as a site for a single-family dwelling and customary accessory buildings.

         A.   Such dwelling and its accessory uses shall comply with all regulations of this Zoning Code, except for the lot area and lot width regulations of the district in which the lot is located.

         B.   Review and approval of development on such lots of record shall be conducted according to the procedures set forth in Section 1258.04, Zoning Permit for a Single-Family Detached Dwelling or Use Accessory Thereto.

         C.   Variances of requirements from district regulations, other than lot area or lot width, shall be obtained through action of the Board of Zoning Appeals as provided in this Zoning Code.

      (2)   A vacant non-conforming lot in the Commercial and Office Building Districts may be used for any use permitted in the district in which it is located when the development of such lot meets all requirements of the district in which it is located, including the maximum lot coverage and minimum setback requirements, except for the minimum lot area and lot width requirements. No use that requires a greater lot size than the established minimum lot size for a particular district shall be permitted on a non-conforming lot. Review and approval of development on such lots of record shall be conducted according to the development plan review requirements set forth in Chapter 1258, Administrative Procedures.

   (c)   Lots in Combination. If a vacant non-conforming lot in any district adjoins one or more lots in common ownership on the effective date of this Zoning Code, or applicable amendment thereto, such lots shall be joined to create conforming lots as a prerequisite for development.

(Ord. 2009-17. Passed 9-15-2009.)

   A building, structure, or use existing lawfully at the time of this Zoning Code, or an amendment thereto, became or becomes effective, but which does not comply with the off-street parking regulations for the use may continue without such parking facilities. In the event an existing building is altered or a use is changed or substituted, in accordance with these regulations, then additional off-street parking spaces shall be provided in compliance with Section 1274.07, Non-conforming Site Conditions Existing at the Time of Development Plan Review, if this Code requires such additional parking spaces as a result of the proposed changes.

(Ord. 2009-17. Passed 9-15-2009.)

   If a non-conforming site condition(s) exists when a revised development plan is required pursuant to Chapter 1258, Administrative Procedures, then such site condition(s) must be brought into compliance with district regulations, unless the Planning Commission determines that such conformance cannot be reasonably achieved because of existing site conditions. In such case, the Planning Commission shall approve a development plan that reduces the existing non-conforming site condition(s) to the maximum extent practicable.

(Ord. 2009-17. Passed 9-15-2009.)

   Any lawfully existing use that, at the time of its establishment, was not classified as a conditional use, but which now, because of the passage of this Zoning Code, or amendment thereto, is listed as a conditional use in the district in which it is located, shall be deemed without further action to be a conditional use. Any change, modification, enlargement or alteration of such use, site development conditions or signs, or change in operations shall only be permitted upon review and approval by the Planning Commission according to the procedures for conditional uses set forth in Section 1258.07, Conditional Zoning Certificate.

(Ord. 2009-17. Passed 9-15-2009.)

   At the time of application for a zoning permit or request for variance, or upon the request of the Zoning Administrator regarding a non-conforming lot, building, structure, site condition, or use, the property owner shall submit sufficient evidence to verify that such lot, building, structure, site condition, or use was lawfully created or established in accordance with the zoning regulations in existence at that time. If the evidence submitted indicates the lot, building, structure, site condition, or use was legally established and has since become non-conforming because of the establishment of or amendment to this Zoning Code, the Zoning Administrator shall issue a certificate of non-conforming use. This certificate shall specify the reason why the use, building, structure, site condition, or lot is non-conforming, and for non-conforming uses shall also include a description of the extent and kind of use made of the property in question, the portion of the structure or land used for the non-conforming use, and the extent that dimensional or other requirements are non-conforming.

(Ord. 2009-17. Passed 9-15-2009.)

   Nothing in this Zoning Code shall prohibit the completion of the construction and use of buildings for which a zoning permit has been issued prior to the effective date of this Zoning Code, or amendments thereto, provided that construction is carried on diligently and without interruption and the entire building is completed within two years after the issuance of the zoning permit. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction.

(Ord. 2009-17. Passed 9-15-2009.)