§ 89-98. Nonconforming use.  


Latest version.
  • (a)

    Applicability. This section applies to any nonconforming use. A "nonconforming use" means a lawfully established use that is not permitted in the zoning district. This applies where:

    • the use is no longer allowed in the district, or

    • the zoning district classification changes (either by applying a new classification to the area, or extending another zoning district to the area), and the new district does not allow the use.

    (b)

    Establishment and scope.

    (1)

    This Section applies only to uses established without conditions.

    (2)

    The existence of a nonconforming use on part of a lot or tract does not establish a nonconforming use on the entire lot or tract.

    (c)

    Displacement. No nonconforming use shall be extended to displace a conforming use.

    (d)

    Change of use.

    (1)

    Once changed to a more restricted use or to a conforming use, no building or land shall revert to a nonconforming use. Notwithstanding the foregoing, in the "D" (Downtown) zoning district, any structure originally constructed and used as a "dwelling, single family detached" or "dwelling, two-family (duplex)" (as those terms are defined in this chapter) and thereafter used as a non-residential use, such structure may revert to its previous residential use notwithstanding the fact that such structure had been converted to a non-residential use.

    (2)

    If no structural alterations are made, a nonconforming use of a building may change to another nonconforming use of the same or more restricted classification.

    (e)

    Relocation.

    (1)

    For purposes of this subsection, "relocate" or "relocation" means to move a nonconforming use to occupy an area of land or a building that was not occupied on the effective date of this chapter or any amendment that created the nonconformity

    (2)

    Nonconforming uses shall not relocate, except as provided in subsection (3) below.

    (3)

    The board of zoning adjustment may approve the relocation of a nonconforming use, subject to the following:

    a.

    The relocation shall either —

    1.

    Reduce the extent or intensity of the nonconformity, or

    2.

    Extinguish another nonconforming use of at least the same extent or intensity.

    b.

    The relocation shall not occupy any open space or landscaped area that is required by this chapter;

    c.

    The relocation shall comply with the dimensional regulations, including setback and height regulations, of the zoning district in which the use is located;

    d.

    The relocation shall not occupy any land beyond the boundaries of the property or lot as it existed on the effective date of this chapter; or

    e.

    Displace any conforming use in the same building or on the same parcel.

    (f)

    Extension or expansion.

    (1)

    Applicability. This subsection applies to any extension or expansion of a nonconforming use, defined as follows:

    Expansion
    (or "expand")
    An increase in the land area covered by the nonconforming use, except as provided in the definition of "extension" below.
    Extension
    ( or "extend")
    An increase in square footage or volume of a nonconforming use.
    The following are not considered an extension or expansion of a nonconforming use if they do not increase the square footage or volume of the use:
    • Attachment of signs that comply with requirements of this chapter at the time of attachment,
    • Awnings, racks, balconies, or other projections from the building or structure that houses the use,
    • Display materials,
    • Lights, or
    • Similar extensions.
    For purposes of this definition —
    • square footage" means the structure's gross floor area as determined by the building code, and
    • "volume" means the volume of the structure that houses the use measured inside the exterior faces of all exterior walls.

     

    (2)

    Where allowed. The board of zoning adjustment may approve an extension or expansion of a nonconforming use if the extension or expansion does not involve or create a nonconforming structure or nonconforming site improvement, or it is required by a federal, state, or local law or a final court order.

    (3)

    Dwelling, single family detached. The administrator may approve an extension or expansion of a nonconforming "Dwelling, single family detached" use (⇔ § 89-21(d)) for which a building permit was issued prior to the effective date of this chapter, provided that the extension or expansion does not encroach upon the minimum setbacks required in the RS-1 zoning district or otherwise create any site improvements that would be nonconforming in the RS-1 zoning district.

    (g)

    Resuming use of vacant buildings or parcels.

    (1)

    Applicability.

    a.

    This subsection applies to any nonconforming use that becomes vacant. For purposes of this subsection, "vacant" means that a building or land is not occupied or used in whole or in part, by a bona fide use or business.

    b.

    The intent to use a building or parcel for any nonconforming use is not considered in interpreting and construing the word "vacant" as used in subsection a. above.

    c.

    The owner of the building or land claiming retention of the nonconforming use has the burden of proof to establish the existence and retention of a nonconforming use by clear and convincing evidence.

    (2)

    Generally. A building or parcel on which a nonconforming use is located may only be used if it complies with all applicable requirements of the zoning district and this title after it remains vacant for a continuous period of 12 calendar months.

    (3)

    Leases.

    a.

    Generally. If the lessee of any building or place where a nonconforming use is established under a bona fide lease ceases to occupy or use the building for nonconforming purposes before the lease expires, the building or land is not considered vacant until the owner of the buildings or land regains legal control of its occupancy and use. This exemption does not apply if the lessor, for any reason, is entitled legally to regain possession and does not attempt to do so by legal means.

    b.

    Proof of lease. To prove the existence of a lease, the owner must provide the administrator a copy of the lease before a certificate of occupancy is approved for the subject site. If an unwritten lease exists, the applicant must file a notarized affidavit on a form provided by the administrator with the administrator before a certificate of occupancy is approved for the subject site.

    (4)

    Bankruptcy. If a building or place used for nonconforming purposes is part of an order of bankruptcy, it is not considered vacant until it is sold or its possession is returned to the owner by order of court or otherwise in the bankruptcy proceedings.

    (5)

    Foreclosure. Any building or land used for nonconforming commercial or industrial purposes that is subject to a recorded mortgage is not considered vacant after foreclosure proceedings are instituted until the mortgagee or purchaser, at a foreclosure sale, takes possession and ownership is established by court procedure or until the mortgagee gains possession of the property by a recorded legal transfer.

(Ord. No. O-180-2015, § 2(Exh. A), 8-18-15; Ord. No. O-252-2015, §§ 3(Exh. B), 4, 11-17-15; Ord. No. O-055-2016, § 2, 3-22-16)