This article addresses both the nonconformities created as a result of City Code changes, and those created as a result of eminent domain acquisition of property.

(Ord. No. 2010-12, § 1, 6-1-2010)

(a)

Within the districts established by this chapter or amendments that may be adopted there exist lots, structures, uses of land and structures and characteristics of use which were lawful before the effective date of the ordinance from which this chapter derives but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendments.

(b)

It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their continuation. Such uses are declared by this chapter to be incompatible with permitted uses in the districts involved. It is, further, the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended or be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

(Ord. No. 45, art. V, § 1, 8-4-1970)

(a)

A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land shall not be extended or enlarged after the effective date of the ordinance from which this chapter derives by attachment on a building or premises of additional signs intended to be seen from off the premises or by the addition of other uses of a nature which would be prohibited generally in the district involved.

(b)

To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of the ordinance from which this chapter derives or of an amendment to this chapter and upon which actual building construction has been diligently carried on. The term "actual construction" is defined to include the placing of construction materials in permanent position and fastened in a permanent manner. However, where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved. In no event shall the time of such construction exceed a period of one year except for a demonstrated cause approved by the city council.

(Ord. No. 45, art. V, § 2, 8-4-1970)

(a)

In any zoning district in which single-family dwellings are permitted, notwithstanding limitations imposed by other sections of this chapter, a single-family dwelling and customary accessory buildings may be erected on any single lot that is of record on the effective date of the ordinance from which this chapter derives or of an amendment to this chapter. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This subsection 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 other requirements not involving area or width or both of the lot shall conform to the regulations for the district in which such lot is located.

(b)

If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record on the effective date of the ordinance from which this chapter derives or of an amendment to this chapter and if all or part of the lots do not meet the requirements for lot width and area as established by this chapter, the lands involved shall be considered to be an undivided parcel for the purposes of this chapter, and no portion of the parcel shall be used or sold which does not meet lot width and area requirements established by this chapter, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements in this chapter.

(Ord. No. 45, art. V, § 3, 8-4-1970)

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

(1)

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 the ordinance from which this chapter derives or of an amendment to this chapter, unless such use is changed to a use permitted in the district in which such use is located.

(2)

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 the ordinance from which this chapter derives or of an amendment to this chapter.

(3)

If any such nonconforming use of land ceases for any reason for a period of more than 90 consecutive days, any subsequent use of such land shall conform to the regulations specified by part II of this Code.

(4)

No additional structure which does not conform to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

(Ord. No. 45, art. V, § 4, 8-4-1970)

Where a lawful structure exists on the effective date of the ordinance from which this chapter derives or of an amendment to this chapter that could not be built under the terms of this chapter because of restrictions on area, lot coverage, height, yards, or other characteristics 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:

(1)

No such structure may be enlarged or altered in a way which increases its nonconformity.

(2)

Any such nonconforming structure may be altered or improved in a manner such that the degree of nonconformity with this chapter is either: (i) decreased; or (ii) not increased, provided that such alterations or improvements serve to improve the esthetics of the structure or serve to decrease any noncompliance with this Code.

(3)

If such structure shall be destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with this chapter.

(4)

If such structure shall be moved for any reason for any distance whatever, it shall thereafter conform to the regulations of the district in which it is located after it is moved.

(Ord. No. 45, art. V, § 5, 8-4-1970; Ord. No. 89-12, § 1, 3-21-1989)

(a)

If a lawful use involving individual structures or a structure and premises in combination exists at the effective date of the ordinance from which this chapter derives, or of an amendment to this chapter that would not be allowed in the district under the terms of this chapter, the lawful use may be continued so long as it remains otherwise lawful, subject to the following:

(1)

No existing structure devoted to a use not permitted by this chapter 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.

(2)

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use on the effective date of the ordinance from which this chapter derives or of an amendment to this chapter, but no such use shall be extended to occupy any land outside such building.

(3)

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

(4)

When a nonconforming use of a structure or a structure and premises in combination is discontinued or abandoned for six consecutive months or for 18 months during any three-year period, except when government action impedes access to the premises, the structure or the structure and premises in combination shall not thereafter be used except in conformance with the regulations specified by part II of this Code.

(5)

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. The term "destruction", for the purpose of this chapter, is defined as damage to an extent of more than 50 percent of the replacement cost at the time of destruction.

(6)

All nonconforming use of structures or of structures and premises in combination, except for residential uses, shall be discontinued according to the following: For each $500.00 of its assessed value as assessed by the county tax assessor on the effective date of the ordinance from which this chapter derives, such nonconformity shall be permitted to continue for a period of one year. In no event, however, shall any such nonconformity involving a structure be required to discontinue before a period of three years, nor shall any nonconformity be permitted to continue for a period longer than 50 years, regardless of its assessed value.

(7)

Notwithstanding the provisions of this section or the provisions of section 98-37, a structure and/or premises having a nonconforming use may be altered or improved in a manner such that the degree of nonconformity with this chapter is either: (i) decreased; or (ii) not increased, provided that such alterations or improvements serve to improve the esthetics of the structure or serve to decrease any noncompliance with this Code.

(b)

Nonconformities not involving the use of a principal structure, e.g., open storage; building supplies; vehicle, mobile home, implement and machinery storage; signs; billboards; junkyards and the like, shall be discontinued within two years of the effective date of the ordinance from which this chapter derives of or an amendment to this chapter.

(c)

Nonconforming parking lots shall be allowed to continue unless the principal use changes to require more parking area or the parking and zoning codes allow for the nonconforming parking lot to continue.

(Ord. No. 45, art. V, § 6, 8-4-1970; Ord. No. 89-12, § 2, 3-21-1989; Ord. No. 2009-68, § 1, 12-15-2009; Ord. No. 2010-12, § 1, 6-1-2010)

(a)

On any 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, provided that the cubic content of the building as it existed on the effective date of the ordinance from which this chapter derives or of an amendment to this chapter shall not be increased.

(b)

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

(Ord. No. 45, art. V, § 7, 8-4-1970; Ord. No. 2009-68, § 1, 12-15-2009)

Any use for which a conditional use is permitted as provided in this chapter shall not be deemed a nonconforming use, but shall without further action be deemed a conforming use in such district.

(Ord. No. 45, art. V, § 8, 8-4-1970; Ord. No. 2009-15, § 25, 1-20-2009)

Note— Ord. No. 2009-15, § 25, adopted Jan. 20, 2009, renamed former section 98-38, effect of granting special exception, as set out herein.

The casual, intermittent, temporary or illegal use of land or structures shall not be sufficient to establish the existence of a nonconforming use. Such use shall not be validated by the adoption of this chapter unless it complies with the terms of this chapter.

(Ord. No. 45, art. V, § 9, 8-4-1970)

The city council hereby finds that the acquisition of private property by various governmental (voluntarily or by condemnation) or public government entities, so authorized by law through the eminent domain process, including trial, or negotiations prior thereto, is an extremely costly and rigorous process. Allowing the appropriate city staff, pursuant to established guidelines, procedures and criteria, to grant waivers and exceptions from certain city land development codes or regulations, on behalf of affected property owners serves a valid public purpose, reduces acquisition costs, and promotes the general safety and welfare of the citizens and land owners of the city.

(Ord. No. 2010-12, § 1, 6-1-2010)

It is the intent of this article to establish a fair procedure by which the appropriate city staff can grant waivers and exceptions to city land development regulations, as well as engineering codes and regulations. This article also establishes that nonconformities caused as a result of eminent domain are not self-induced hardships, and the landowner or his representative may seek variances from applicable codes, ordinances or resolutions. Such authority is conditioned upon a determination that the waiver, exception or variance does not adversely affect the public health, safety or welfare. This determination of waivers, exceptions and variances shall be made in writing.

(Ord. No. 2010-12, § 1, 6-1-2010)

(a)

The condemning authority, or the landowner, may submit in writing to the city for a determination that the granting of the waiver or exception of the items listed in section 98-43 shall not result in a condition which adversely affects the health, safety or welfare of the general public.

(b)

The city shall route these requests to the appropriate city department, and these departments shall issue a signed letter to the applicant, granting or denying the waiver or owner or condemning authority may apply for other relief, including a variance or appeal.

(Ord. No. 2010-12, § 1, 6-1-2010)

The following provides the criteria for limited determination of waivers and exceptions, and characteristics that are eligible for waivers, if as a result of a governmental acquisition of property, either by negotiation or condemnation, existing lots, parcels, structures or uses of land become nonconforming with the provisions of the City Code:

(1)

Existing characteristics of use which become nonconforming or increase in nonconformity as a result of the acquisition, include the following:

a.

Minimum lot size.

b.

Minimum setbacks.

c.

Minimum open space.

d.

Minimum off-street parking and sidewalk requirements.

e.

Minimum landscape requirements.

The subject property shall be required to meet Code requirements to the greatest extent practical and to the satisfaction of the city through the submittal of a plan. These characteristics that are caused by condemnation to be less than the minimum requirements shall be deemed conforming. However, any further redevelopment, expansion or enlargement shall be in accordance with all applicable City Codes.

(2)

In granting the waiver or exception to the City Code, the appropriate city department shall:

a.

Provide a determination that the requested waiver or exception shall not adversely affect safety, aesthetic or environmental concerns of neighboring properties.

b.

Lot size, setbacks, open space. For developed lots, provide a determination that the impacted lot already exceeds minimum zoning district requirements, or that the reduced lot size, open space and setbacks can be reduced without any impact to existing pavement, or structures and that any relocated utilities including stormwater conveyance and retention can be accommodated in the existing site. For vacant lots, the dimensional requirements other than those applying to lot area, depth or width shall be met.

c.

Pedestrian sidewalks. Provide a determination that the requested waiver or exception shall not adversely affect the safety of pedestrians or motor vehicle operators. Sidewalks shall not be placed in driveway aisles or in a landscape island too narrow to accommodate both the minimum width of the sidewalk and the minimum vehicular overhang width.

d.

Off-street parking. Preserve Code-required off-street parking requirements to the greatest extent practical. For off-street parking, determine that either the impacted lot already exceeded minimum parking requirements, or that the reduction is accompanied by a shared parking agreement if possible with an adjacent property, or that the applicant attempts to replace the parking in another location on-site.

e.

Landscaping. Preserve Code-required landscaping to the greatest extent practical. However, the reconfiguration, reduction or removal of landscaping, landscape areas, or open space may be used to preserve off-street parking. Shrubs, trees and green area removed along the front of the impacted lot are not required to be replaced if off-street parking is preserved in exchange for green area.

(3)

Relocations of buildings and paved areas. If any legally existing structure (either principal or accessory) or vehicle use area(s) must be relocated as a direct result of the governmental acquisition or as a result of safety concerns, then the building official and other appropriate departments shall allow the relocation of the structure on the property, so as to comply with all applicable regulations to the greatest extent practical. If the allowed relocation results in substandard characteristics of use, it shall be deemed thereafter to be conforming with respect to said characteristics. Any future expansion or enlargement shall be in accordance with the applicable City Code.

(4)

Structures deemed nonconforming. Legally existing structures (principal or accessory) or vehicular use areas which become nonconforming or increase in nonconformity as listed in subsection. 98-43(1), and which are thereafter damaged or destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, shall not be reconstructed except in conformity with City Code. Where expansion or enlargement increases the nonconformity of a characteristic of use, relief from appropriate city boards is necessary, or compliance with the City Code.

(5)

Reconstruction. Where part of a principal structure is taken, the reconstruction of the taken portion of structure (same size and use) may be permitted. The reconstruction must meet building and other applicable regulations to the greatest extent possible. The reconstruction shall be deemed conforming.

(6)

Structure alterations. Any alterations, repairs or rehabilitation work necessitated by a governmental or public agency acquisition may be made to any existing structure, building, electrical, gas, mechanical or gas system without requiring the building, structure, plumbing, electrical, mechanical or gas system to comply with all the requirements of the technical codes, provided that at least the subject alteration, repair or rehabilitation work conforms to the requirements of the technical codes for new construction.

(Ord. No. 2010-12, § 1, 6-1-2010)

A sign which is located on a parcel that is subject to condemnation action by a governmental or public agency may be allowed to be relocated on the remaining portion of the parcel in accordance with the following requirements:

(1)

Sign placement. The sign which is to be relocated on the remaining parcel shall meet the setback and distance separation requirements of City Code. If due to the size and/or configuration of the remaining parcel, setback and distance separation requirements cannot be met, then the sign may be relocated so as to comply with such regulations to the greatest extent practical provided that a safe sight visibility triangle at the driveway remains and there is no right-of-way encroachment. A monument or pole relocated sign shall not be required to comply with existing setback requirements, but shall comply with such regulations to the greatest extent practical providing compliance with a sight visibility triangle.

(2)

Existing nonconforming signs. If the sign to be relocated is a nonconforming sign, upon proof submitted by the applicant and subject to the determination that public harm would not occur, then such sign may be relocated pursuant to this section, notwithstanding the provisions of the city's sign code.

(Ord. No. 2010-12, § 1, 6-1-2010)