This chapter establishes separate and distinct districts, each of which is appropriate for certain specified uses and conditions. It is the purpose of this section to provide for the regulation of existing structures, uses and lots that do not conform to the requirements of the district in which they are located and to specify the requirements, circumstances and conditions under which the nonconforming structure, use or lot may be continued. In furtherance of the goals and purpose of this chapter, it is also the intent of the article that all nonconforming uses shall eventually be eliminated or made to comply with the provisions of this chapter.

(Ord. No. 193, § C(4), 12-28-93; Ord. No. 369, § 1, 1-24-12)

(a)

Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an official control under this chapter, may be continued, including through repair, replacement, restoration, maintenance or improvement, but not including expansion, unless:

(1)

The nonconformity or occupancy is discontinued for a period of more than one year; or

(2)

Any nonconforming use is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, as indicated in the records of the county assessor at the time of damage, and no building permit has been applied for within 180 days of when the property is damaged. In this case, the city may impose reasonable conditions upon a zoning or building permit in order to mitigate any newly created impact on adjacent property or water body.

(b)

Any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy. The city may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare or safety. This chapter does not prohibit the city from enforcing an ordinance that applies to adults-only bookstores, adults-only theaters, or similar adults-only businesses, as defined by ordinance.

(c)

Notwithstanding subsection (a), the city shall regulate the repair, replacement, maintenance, improvement or expansion of nonconforming uses and structures in floodplain areas to the extent necessary to maintain eligibility in the national flood insurance program and not increase flood damage potential or increase the degree of obstruction to flood flows in the floodway.

(d)

Notwithstanding any other provisions of this chapter, any detached single-family dwelling that is on a nonconforming lot or that is a nonconforming use or structure may be altered, or expanded provided, however, that the nonconformity may not be increased. If a setback of a dwelling is nonconforming, no additions may be added to the nonconforming side of the building unless the addition meets setback requirements.

(e)

Nothing in this chapter shall prevent the placing of a structure in a safe condition when the structure is declared unsafe by the building official, provided that a building permit has been applied for within 180 days of when the property is declared unsafe.

(f)

Alterations may be made to a building containing lawful nonconforming residential units when they will improve the livability thereof, provided they will not increase the number of dwelling units.

(g)

Except as otherwise provided in this article, a nonconforming use shall not be enlarged, moved, or extended to occupy a greater area of land, but may continue at the size and intensity and in the manner of operation existing upon the date of its nonconformity.

(1)

A nonconforming use may be enlarged or extended to occupy a greater area of land if any such enlargement or extension is required by the laws, rules, or ordinances of the county, state, or United States of America, or is necessary in order to comply with a written recommendation directed specifically to that use by any such governmental authority or an enforcement agency thereof having the written recommendation relates to the health, safety, and/or welfare of the general public. Allowed enlargements or extension s pursuant to this subsection including, but are not limited to, those done to comply with the requirements of American with Disabilities Act (ADA).

(2)

A nonconforming use allowed to enlarge or extend pursuant to subsection (g)(l) of this section may also enlarge or extend to regain any lost capacity to function in the manner the use is conducted, which capacity was lost as the result of compliance with any such law, rule, ordinance, or written recommendation of any such governmental authority. However, such recaptured capacity shall not exceed the area, size, height, or intensity of use of the original such capacity lost as a result of such compliance.

(3)

A nonconforming use may be reconfigured if, in the discretion of the city, such reconfiguration would lessen the nonconformity, abate nuisances, and protect the public health, safety, and welfare. If a use is reconfigured, the property owner must enter into an agreement with the city, drafted by the city attorney, stating, among other things, the purpose of the reconfiguration and that the nonconforming use will remain a legal nonconforming use.

(h)

No such nonconforming use or structure shall be moved in whole or in part to any other part of the parcel of land upon which the same was conducted at the time of passage of the ordinance from which this chapter is derived, nor shall such use or structure be moved in whole or in part to any other lot except to bring it into conformance with the regulations of this chapter.

(i)

A nonconforming use or structure that has been discontinued or abandoned for a period of one year shall not be re-established and any future use shall be in conformity with the regulations of this chapter.

(j)

A nonconforming use may be changed to lessen the nonconformity of that use. Thereafter the use may not be so altered as to increase the nonconformity.

(k)

Notwithstanding the prohibitions contained in the forgoing subsections of this section, if approved by the city council a nonconforming land use may be changed to another nonconforming land use of less intensity if it is in the public interest. In all instances the applicant has the burden of proof regarding the relative intensities of uses.

(Ord. No. 193, § C(5), 12-28-93; Ord. No. 369, § 2, 1-24-12)

(a)

No variance shall be required to construct a detached single-family dwelling on a vacant nonconforming lot of record, excluding platted outlots, provided that it fronts on a public street or approved private street and provided that the proposed structure will meet the minimum setback requirements of this chapter which currently apply to the lot. This provision 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 and 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.

(b)

Lots in same ownership. 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 passage or amendment of this chapter, and if all or part 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 chapter, and no portion of such parcel shall be used or sold in a manner which diminishes compliances with lot width and area requirements established by this chapter, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this chapter. If part of the parcel is sold, the sale shall constitute a self-created hardship under the variance provisions of this chapter.

(c)

Except as otherwise specifically provided for detached single-family dwellings, there shall be no expansion, intensification, replacement or structural changes of a structure on a nonconforming lot.

(d)

Nonconforming lots containing a principal structure may add a permitted accessory structure provided that the accessory structure will meet all minimum setback requirements of this chapter.

(e)

Additions to principal or accessory structures located on nonconforming lots may be permitted provided that any such addition will meet all minimum setback requirements of this chapter.

(Ord. No. 193, § C(7), 12-28-93)

Editor's note— Ord. No. 369, § 3, adopted Jan. 24, 2012, deleted former § 62-193 which pertained to nonconforming uses and derived from Ord. No. 193, § C(6), adopted Dec. 28, 1993. Said ordinance also redesignated former § 62-194 as § 62-193.