The purpose of this Article is to govern three types of nonconformities: lots, structures, and uses. A nonconformity is a lot, structure, or use that was lawfully established but-because of the adoption of new or amended regulations-no longer complies with one or more requirements of this code. The regulations of this Article establish the standards under which nonconformities can be altered, expanded, or allowed to continue. This Article also provides for:

   A.   The regulation and short-term maintenance of those nonconforming lots, structures and uses which substantially and adversely affect the orderly development and taxable value of other conforming property in each district; and

   B.   The gradual elimination of nonconforming lots, structures and uses to those that conform to the provisions of this Article by specifying the circumstances and conditions under which nonconforming lots, structures and uses shall be permitted with restriction in order to accomplish the objectives of this Code without undue burden to any single property owner, in accordance with the authority granted by Illinois Statutes.

   C.   The establishment of a system to enable certain nonconforming lots, structures, and uses intended to be granted an exception to these regulation and provide greater flexibility than the category of “nonconforming uses” in the continuation, expansion or enlargement of existing land uses still permitted in the subject zone district, but which no longer comply with this Code’s use limitations. Ord. O-22-017, 5-19-2022)

   A.   The burden of proving that a nonconformity exists (as opposed to a violation of this Article) rests entirely with the property owner. However, the Development Administrator will maintain a current inventory of all known nonconforming lots, structures, and uses within the city, including those created after the adoption of any partial or comprehensive amendment to this code.

   B.   The Development Administrator is authorized to determine whether adequate proof of nonconforming status has been provided by the subject owner.

   C.   Building permits, lawfully recorded plats, aerial photography owned by the City and other official government records that indicated lawful establishment of the lot, structure or use constitute conclusive evidence of nonconforming status. If such forms of conclusive evidence are not available, the Development Administrator is authorized to consider whether other forms of evidence provided by the subject owner are reliable and adequate to document nonconforming status. Examples of evidence that may be considered include, but are not limited to:

      1.   Professional registrations or licenses;

      2.   Utility billing records; and

      3.   Leasing records. Ord. O-22-017, 5-19-2022)

   A.   Elimination Of Nonconforming Structures and Uses: In accordance with the provisions of this Article VII, it is hereby declared to be the intent of the City to eliminate nonconforming uses and structures.

   B.   Authority To Continue Nonconforming Lots, Structures and Uses: Any nonconforming lot, structure or use which was nonconforming at the time of the adoption of this Article and which remains nonconforming and any lot, structure or use which shall become nonconforming upon the adoption of this Article or of any subsequent amendments thereto, may be continued subject to the regulations which follow.

   C.   Continued Status of Nonconformity: Nonconforming status rests with the property, not with the subject owner and shall run with the land. Such status is not affected by changes in ownership, lessees, or management. Notwithstanding anything to the contrary in this Subsection 17.703.C, any such nonconforming use will be operated and maintained in accordance with the provisions of this Article VII and all applicable provisions of this Unified Development Code.

   D.   Maintenance and Repair of Nonconforming Lots and Structures: Nonconforming lots and structures carry the same obligations and requirements for safe upkeep as conforming lots and structures. Incidental repairs and normal maintenance necessary to keep a nonconformity in compliance with the City Building and Property Maintenance Codes are permitted unless otherwise expressly prohibited in this Article. Normal maintenance and incidental repair or replacement of fencing, nonbearing walls and partitions, fixtures, wiring, plumbing, parking, landscaping and mechanical equipment may be performed on any nonconforming lot or structure. Nothing in this Article shall be deemed to prevent the strengthening or restoration of an unsafe structure in accordance with any order of a public official charged with protecting public safety, and who finds such structure is unsafe in its then present condition, and that repair or restoration is not in violation of the provisions of this Article governing the restoration of partially damaged or destroyed structures.

   E.   Previous Nonconforming Lots, Structures and Uses: Any nonconforming lot, structure or use which existed prior to the effective date of this Article which is made lawful and conforming as a result of the provisions of this Article shall be considered as conforming.

   F.   Abandonment:

      1.   Abandonment is the voluntary discontinuance of a nonconforming use or the occupancy of a nonconforming structure, when accompanied by the intent not to reestablish such use or occupancy. Any one of the following conclusively establishes an intent to abandon, and after which the use must conform to all applicable regulations of this code:

         a.   Any positive act indicating such intent; or

         b.   Any conscious failure to take all necessary steps to resume the nonconforming use or occupancy with diligence in the circumstances, including advertising of the property for sale or for lease; or

         c.   In the case of a nonconforming structure which is damaged by means out of control of the owner to an extent of less than fifty percent (50%) of the cost of restoration of the entire structure, failure to commence restoration within six (6) months from the date of partial destruction, or conclude restoration within two (2) years from the time restoration construction is initiated.

      2.   In addition, each of the following situations concerning specific types of uses will conclusively establish an abandonment:

         a.   Nonconforming Use of Land: When a nonconforming use of land is abandoned, or an accessory use of land to the nonconforming principle use of land, is abandoned for a period of ninety (90) consecutive days, or for a total of six (6) months during any one year period (regardless of any reservation of an intent not to abandon or to resume such use of land), such use of land will not thereafter be reestablished or resumed. Any subsequent use or occupancy of such land or structures shall comply with the regulations of the zoning district in which such land is located.

         b.   Nonconforming Use of Structure: The abandonment of any nonconforming use of a structure for a period of twelve (12) consecutive months, regardless of owner intent, shall terminate any rights conferred by this Article to continue such nonconforming use. Any subsequent use or occupancy of such land or structures shall comply with the regulations of the zoning district in which such land is located.

         c.   Nonconforming Accessory Uses: No use which is accessory to a principal nonconforming use shall continue after such principal nonconforming use shall have been ceased or terminated. Ord. O-22-017, 5-19-2022)

   A.   Nonconforming Lots: A nonconforming lot is a lot that was lawfully created in accordance with lot area, lot width and lot depth regulations in effect at the time of the lot’s establishment but does not comply with currently applicable lot area, width or depth regulations.

      1.   Continuation of Substandard Lots of Record: In a district, notwithstanding the regulations imposed by any other provision of this code, a building which complies with the restrictions in subsection 17.704.A.2. may be erected on a lot that is at least fifty feet (50') in width and not under common ownership with an immediately adjacent lot that:

         a.   Has less than the prescribed minimum lot area or lot width or lot depth, or all three (3);

         b.   Is shown by a plan or deed recorded at the DuPage County Recorder of Deeds to have been owned separately and individually from adjoining tracts of land during the entire time that the creation of such lot has been prohibited by this Article.

      2.   Yard Requirements for Nonconforming Lots: Construction permitted by subsection 17.704.A.1. will comply with all the regulations, except lot area, lot width and/or lot depth, applicable in the zoning district in which the lot is located, provided, however, that the following said yard requirements shall apply in place of the side yard requirements otherwise applicable:

         a.   A building shall be placed on the lot so as to provide a yard on each side of the dwelling building within a residential zoning district.

         b.   Except as otherwise approved by the City Council through its approval of a Planned Unit Development, required side yards of the principal building shall not be less than ten percent (10%) of the width of the lot, and in no case shall required side yards be less than five feet (5') in width, and in no case shall a residential building be located less than ten feet (10') from a building on an adjoining lot.

      3.   Lot Consolidation of Nonconforming Lots: When two (2) or more contiguous nonconforming lots are held in common ownership, the lots must be consolidated in order to meet or come closer to meeting applicable minimum lot area, width and depth requirements, except that lot consolidations are not required when a building addition does not exceed two hundred fifty (250) square feet or the construction of an accessory structure does not exceed five hundred (500) square feet.   

      4.   Accessory Uses: No new accessory use may be added to (a) any nonconforming lot or (b) any conforming lot with a nonconforming principle structure.

   B.   Nonconforming Structures: A nonconforming structure is any structure that was lawfully established but no longer complies with applicable lot and building regulations or other dimensional or locational requirements of this Article.

      1.   Alteration of Nonconforming Structures: Subject to the provisions for limited nonconforming exceptions in Section 17.705, any nonconforming structure may be altered or remodeled provided, however, that no such alteration or remodeling shall either create any additional nonconformity or increase the existing nonconformity of all or part of the building or structure, except that as to structures located on a lot which does not comply with the applicable lot size requirements, the side yard requirements shall be determined by subsection 17.704.A.2.

      2.   Restoration: In the event a nonconforming structure is destroyed or damaged by fire or other casualty or act of God, such building may be restored only if the cost of reconstruction to its condition prior to the casualty does not exceed fifty percent (50%) of the replacement cost of the entire structure - as determined in accordance with Code - and providing no restoration or reconstruction shall be undertaken unless it is started within one year from the date of notice by the Development Administrator of this provision or the date of the casualty destruction, whichever is later, and completed within twelve (12) months from the date of the casualty. The Development Administrator may, but is not obligated to, grant up to two (2) 6-month extensions for cause.

      3.   Relocation: No nonconforming structure shall be moved in whole or in part to any other location on the same or any other lot unless every portion of said structure is made to conform to all of the regulations of the district in which it is to be relocated.

      4.   Damage or Destruction: In the event that any nonconforming structure that is devoted in whole or in part to a nonconforming use is damaged or destroyed, by any means, to the extent of more than fifty percent (50%) of the cost of replacement of the structure new - as determined in accordance with this Code - such structure shall not be restored unless it and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located. When such damage or destruction is fifty percent (50%) or less of the cost of replacement, no repairs or restoration shall be made unless a zoning certificate is obtained in accordance with subsection 17.401.C of this Article and restoration is actually begun within one year after the date of such partial destruction and is diligently pursued to completion.

      5.   Accessory Uses: No new accessory use may be added to (a) any nonconforming lot or (b) any conforming lot with a nonconforming principle structure.

   C.   Nonconforming Uses:

      1.   Change of Use: A nonconforming use of land or a structure shall not be changed to any use other than a use permitted in the zoning district in which the use is located. When a nonconforming use of land or a structure has been changed to any permitted use, it shall not thereafter be changed back to a nonconforming use. For purposes of this section, a use shall be deemed to have been so changed when an existing nonconforming use shall have been terminated and a conforming use shall have commenced.

      2.   Expansion of Use: The nonconforming use may not be expanded or extended beyond the area the use occupied at the time the use became nonconforming except in conformance with subsection 17.705.A. of this Article.

      3.   Damage or Destruction: In the event that any structure that is devoted in whole or in part to a nonconforming use is damaged or destroyed, by any means, to the extent of more than fifty percent (50%) of the cost of replacement of the structure new - as determined in accordance with this Code - such structure shall not be restored unless it and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located. When such damage or destruction is fifty percent (50%) or less of the cost of replacement new, no repairs or restoration shall be made unless a zoning certificate is obtained in accordance with subsection 17.701.C of this Article and restoration is actually begun within one year after the date of such partial destruction is diligently pursued to completion.

      4.   Relocation: No nonconforming use of land or structure shall be moved in whole or in part of any distance whatsoever, to another location on the same lot or any other lot, unless such use shall thereafter conform to all regulations of the zoning district in which it is located after so moved. Ord. O-22-017, 5-19-2022)

   A.   Development Administrator Authority in Special Cases Only: The Development Administrator may authorize, upon application in specific cases, an exception permitting an increase:

      1.   in either, or both, the zoning lot area or the gross floor area in a structure or structures occupied by a nonconforming use as are necessary and essential to enable the owner of the use to comply with lawful requirements of the federal, state, or city; or

      2.   in the existing nonconforming use on an existing zoning lot where (a) as a result of a property owner acquiring additional adjoining property or (b) an act of government through vacation of right-of-way that creates additional private land area abutting the existing zoning lot.

   B.   Procedure and Required Findings: All applications for a limited nonconformity exception under this Section 17.705 will be reviewed according to the following procedures:

      1.   Initiation: The owner[s] of the subject property or the owner’s authorized agent may initiate an application for limited nonconformity exception.

      2.   Pre-Application Meeting: A pre-application meeting with the Development Administrator is optional before submittal of a limited nonconformity exception application. The Development Administrator’s opinions or comments made during a pre-application meeting are informational only and do not represent a commitment on behalf of the city regarding a final decision on the limited nonconformity exception application. However, at the pre-application meeting the Development Administrator may waive application submittal requirements or request that additional information be submitted.

      3.   Application and Fees:

         a.   Submittal in Writing. All applications for a limited nonconforming exception will be submitted in writing to Development Administrator. The applicant will pay all required fees at the same time the application is submitted.

         b.   Concurrent Applications. The applicant may submit a limited nonconformity exception application concurrent with the submittal of other applications. In no case, however, shall a building permit be issued until the limited nonconforming exception according to this Section 17.705 is approved.

      4.   Review, Referral and Final Decision: The Development Administrator may refer the limited nonconforming exception application to other affected or interested state and local agencies, city departments and parties for review and comment, as deemed necessary to make a decision on the application. The Development Administrator will make a final decision to approve, approve with conditions, or deny the application, taking into consideration relevant comments. Wherever higher or more restrictive standards are established by the provisions of this code, the Development Administrator may take these provisions into consideration in making a final decision.

      5.   Review Criteria: The Development Administrator will use the following criteria in making a decision on an application for a limited nonconformity exception application:

         a.   the application is consistent with all prior approvals for the subject property.

         b.   the application complies with all other applicable regulations in this code except those specifically the subject of the limited nonconforming exception.

         c.   the use is a nonconforming use as defined in this code, is in full compliance with all requirements of this code applicable to nonconforming uses, and is not a nonconforming use which is to be terminated by operation of law.

   C.   Timing for Decisions: Any decision for a limited nonconforming exception will be made by the Development Administrator within 45-days after receipt of a completed application complying with the requirements of this Section 17.705, unless the property owner and Development Administrator agree in writing to a longer review period. Failure of the Development Administrator to issue his or her written decision with 45-days, or as may be extended by agreement of the property owner and director, will be a decision to deny the application.

   D.   Limited Nonconforming Exceptions Personal to Owner: A limited nonconforming exception authorized by this Section 17.705 is personal to the property owner and is not transferable, and will only run with the land after construction of any authorized structure or structures and only for the life of such structure or structures.

   E.   Community Development Commission Authority to Grant Variances for Other Expansions; Jurisdiction on Appeal:

      1.   The Community Development Commission may grant other exceptions to the nonconforming provision of this Article that are not otherwise limited nonconforming exceptions under its power to grant variances, subject to the procedures and applicable criteria stated in Section 17.202.C.7.e. and Section 17.204.C. of this UDO.

      2.   The Community Development Commission will hear all appeals from any decision of the Development Administrator, subject to the procedures and applicable criteria stated in Section 17.204. Ord. O-22-017, 5-19-2022)