CHAPTER 14

NONCONFORMITIES

Table of Contents

1400.    General
1401.    Nonconforming Uses of Unimproved Land
1402.    Nonconforming Uses of Buildings
1403.    Nonconforming Signs
1404.    Nonconforming Lots
1405.    Structural Nonconformities
1406.    Repairs
1407.    Parking, Loading and Screening Nonconformities
1408.    Adult Entertainment Establishments
1409.    Dance Hall Establishment
1410.    Strobe and Beacon Lights

SECTION    1400.    GENERAL

Within the districts established by this Code or amendments that may later be adopted there exists uses, structures, and lots which were lawful before this Code was adopted or amended, but which would be prohibited under the terms of this Code or future amendment to this Code. These uses, structures, and lots, herein referred to as "nonconformities" may continue as regulated by this Chapter. A use lawfully existing prior to the effective date of this Code, or amendment thereto, which does not comply with a parking, loading, screening, bulk and area, sign, or enclosure requirement or requirements, but which is otherwise lawful shall be deemed nonconforming and may continue as regulated by Sections 1403, 1404, 1405, 1406, and 1407 of this Chapter.

SECTION    1401.    NONCONFORMING USES OF UNIMPROVED LAND

A.    When at the effective date of this Code or amendment thereto a lawful use of land exists, which would not be permitted by the terms of this Code or amendments thereto, and the only structures employed in connection with such uses are all accessory or incidental to such use and in the aggregate do not cover more than 10% of the lot area devoted to the nonconforming use, such use shall be deemed a nonconforming use of unimproved land and shall terminate as follows:

1.    If the replacement cost of the accessory structures (other than fences) is less than $1,000.00, the nonconforming use shall terminate within five years from the effective date of this Code or from the date the use became nonconforming, whichever is later.

2.    If the replacement cost of the structures (other than fences) is $1,000.00 or more, the nonconforming use shall be terminated on the basis of amortization of the replacement cost of the accessory structures at a rate of $200.00 per year from the effective date of this Code or from the date the use became nonconforming, whichever is later.

B.    Pending termination, the nonconforming use of land may be continued provided:

1.    No such nonconforming use shall be changed to another nonconforming use, nor enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of this Code or amendment thereof.

2.    No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of this Code or amendment thereof.

3.    No additional structure (other than fences) shall be erected in connection with such nonconforming use of land.

4.    If any such nonconforming use of land ceases for any reason for a period of more than 90 days, (except when government action impedes access to or use of the premises) any subsequent use of such land shall conform in all respects to the regulations of the district in which it is located.

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SECTION    1402.    NONCONFORMING USE OF BUILDINGS, OR BUILDINGS AND LAND IN COMBINATION

When at the effective date of this Code or amendment thereto, there exists a lawful use of a building, or use of a principal building and land, or use of land and accessory structures, such structures covering more than 10% of the lot area, and such use would not be permitted by the terms of this Code or amendment thereto, such use shall be deemed nonconforming and may continue subject to the following provisions:

A.    No building devoted to a nonconforming use shall be enlarged or extended, except in changing the use of the building to a use permitted in the district in which it is located.

B.    A nonconforming use of a portion of a building may be extended to the remaining portions of the building if such portions were manifestly arranged and designed for such use, but such use shall not be extended to occupy any land outside the building.

C.    A nonconforming use of a building, or building and land in combination, if superseded by a permitted use, shall not thereafter be resumed.

D.    A nonconforming use of a building, or building and land in combination, if discontinued for 36 consecutive months or for 36 months during any four year period, (except when governmental action impedes access to or the use of the premises) shall not thereafter be resumed.

E.    Where nonconforming use status applies to a building and land in combination, termination of use of the building within the meaning of 1402.D shall eliminate the nonconforming status of the use of the land.

F.    A nonconforming use of a building or of a building and land in combination when located within a residential district shall not be changed unless changed to a use permitted in the district in which located. A nonconforming use of a building or of a building and land in combination when located within a district other than a Residential District, may, as a Special Exception, be changed upon approval of the Board of Adjustment after a finding that the proposed use will not result in any increase of incompatibility with the present and future use of the proximate properties. The change of a use to another use contained within the same use unit, except for uses within Use Unit 2, shall not constitute a "change of use" within the meaning of this section.

G.    Should the structure containing a nonconforming use be damaged or partially destroyed to the extent of more than 50%, but less than 75% of its current replacement cost at time of damage, the restoration of the structure shall be subject to the Board of Adjustment's finding after adherence to the procedural requirements for a Special Exception, that the contemplated restoration is necessary for the continuance of the nonconforming use, and will not result in any increase of incompatibility with the present or future use of proximate properties. Should the structure containing a nonconforming use be damaged or destroyed to the extent of more than 75% of its replacement cost at time of damage, the nonconforming use shall not thereafter continue or be resumed.

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SECTION    1403.    NONCONFORMING SIGNS

A.    Outdoor advertising signs lawfully existing at the effective date of this Code or amendment thereto, but which would be prohibited by the terms of this Code or amendment thereto, shall be deemed nonconforming and may continue subject to the following provisions:

1.    If the sign is nonconforming by reason of restrictions other than on its setback from R districts or from designated residential development areas, said sign shall be removed or made to conform on or before January 1, 1995;

2.    The sign shall be maintained in good repair and visual appearance;

3.    Should the sign be damaged or partially destroyed to the extent of more than 50% of its current replacement cost at the time of damage, the sign shall be removed, or made to conform; and

4.    If the sign is not used for advertising purposes for a period of 180 consecutive days, the sign shall be deemed abandoned and shall be removed. Any outdoor advertising sign which directs attention to the owner's outdoor advertising business, commodity, or service shall be considered a use of the outdoor advertising sign as a business sign and shall not be considered a use for advertising purposes in the application of this paragraph.

B.    Other signs lawfully existing at the effective date of this Code or amendment thereto, but which would be prohibited by the terms of this Code or amendment thereto, shall be deemed nonconforming and may continue subject to the following requirements:

1.    If the sign is nonconforming by reason of restrictions on its level of illumination, said sign shall be removed or made to conform within 90 days from the date the sign became nonconforming;

2.    A promotional business sign which is nonconforming by reason of restrictions on its height or setback, shall be removed or made to conform within 40 days from the date the sign became nonconforming;

3.    A window sign(s) which is nonconforming by reason of restrictions on its display surface area shall be removed or made to conform within 60 days from the date the sign became nonconforming;

4.    A sign which is nonconforming by reason of restrictions on the use of strobe or beacon lights incident thereto may continue so long as the strobe or beacon lights are removed immediately;

5.    If the sign is nonconforming by reason of restrictions other than on its display surface area, height or setback from R districts or its setback from designated residential development areas, said sign shall be removed or made to conform on or before January 1, 1996 unless otherwise provided herein:

6.    The sign shall be maintained in good repair and visual appearance;

7.    Should the sign be damaged or partially destroyed to the extent of more than 50% of its current replacement cost at the time of damage, the sign shall be removed or made to conform; and

8.    If the sign is not used for advertising purposes for a period of 180 consecutive days, the sign shall be deemed abandoned and shall be removed.

SECTION    1404.    NONCONFORMING LOTS

A.    In residential districts, on any lot filed of record on or before July 1, 1970, or on any lot within a subdivision approved by the Planning Commission or on any lot of record for which a recorded instrument of conveyance bears the endorsement of the Planning Commission and such lot is nonconforming by reason of failure to meet lot area requirements, a single-family detached dwelling may be erected without complying with the required lot area, land area per dwelling unit, or livability space per dwelling unit; provided however, livability space per dwelling unit shall not be less than 50% of the lot area.  If an existing lot as described above is nonconforming as to lot width and is a corner lot, a single-family detached dwelling may be erected without complying with the required side yard which abuts a public street, provided however, such side yard abutting a public street is at least 5 feet wide and provided that garages which are accessed through this side yard abutting a street are set back a minimum of 20 feet.

B.    In nonresidential districts, on any lot filed of record on or before July 1, 1970, or on any lot within a subdivision having received approval of the Planning Commission, or any lot of record for which a recorded instrument of conveyance bears the endorsement of the Planning Commission the permitted use may be located on such lot irrespective of its street frontage provided that other requirements of the district  and applicable Use Unit conditions are complied with.

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SECTION    1405.    STRUCTURAL NONCONFORMITIES

A structure, lawfully existing at the effective date of the adoption or amendment of this Code, but which would be prohibited by the terms of this Code by reason of restriction on floor area, density, intensity, height, yards, its location on the lot, or other requirements concerning the structure, shall be deemed nonconforming and may continue, subject to the following provisions:

A.    No such nonconforming structure may be enlarged or altered in any manner which increases its nonconformity, provided that the addition of a mezzanine or similar alteration which does not increase the cubic content of the structure shall not constitute an "increase in nonconformity".

B.    Should such structure be damaged or partially destroyed by any means to the extent of more than 50% of its current replacement cost at time of damage, the restoration as a nonconforming structure shall be subject to the Board of Adjustment's finding, after adherence to the procedural requirements for a Special Exception, that its restoration to a conforming structure cannot reasonably be made in view of the nature and extent of the nonconformity and the nature and extent of the damages. Antenna supporting structures, if damaged or destroyed by any means, may be reconstructed by obtaining a building permit; provided the supporting structure is placed in the same location and has less than or equivalent height and mass;

C.    Should such structure be moved for any distance whatever, it shall thereafter conform to the provisions of the district in which located.

SECTION    1406.    REPAIRS

A.    On any building containing a nonconforming use or any nonconforming structure, ordinary repairs and maintenance may be made provided that the cubic content of the building is not increased, and structural nonconformity is not increased.

B.    If a nonconforming structure or a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and a final order of vacation or demolition is entered by any duly authorized official by reason of physical condition, it shall not thereafter be used, restored, or repaired, or rebuilt except in conformity with the provisions of the district in which located.

SECTION    1407.    PARKING, LOADING AND SCREENING NONCONFORMITIES

A use lawfully existing at the effective date of this Code, or amendment thereto, except for an Adult Entertainment Establishment, as listed in Use Unit 1212a. and a dance hall as set forth in Use Unit 1219, (See Sections 1409 and 1410), but which does not comply with a parking, loading or screening requirement or requirements of this Code, shall be deemed nonconforming and may continue, subject to the following provisions:

A.    No such use may be enlarged or extended unless parking and loading is provided as required for the enlargement or extension.

B.    No such use may be enlarged or extended unless screening is provided as required for the use.

C.    No such use may be changed unless parking, loading and screening is provided as required for such use; provided however, that the Board of Adjustment may modify such parking and loading requirements as a special exception after finding that the proposed use meets the standards contained in Subsection 1608.C and the proposed use will not result in any increase of incompatibility with the present and future use of the proximate properties. The change of use to another use contained within the same use unit shall not constitute a "change of use" within the meaning of this section.

D.    A Use Unit 28 use shall be screened in accordance with the provisions of Section 1228 of this Code on or before the expiration of twelve (12) months from the effective date this provision first became effective, provided, however, that existing storage racks that do not meet minimum setback requirements shall be permitted to remain.

E.    The provisions of this Title 42, requiring vehicles to be parked, stored or displayed for sale on an all-weather material, shall not apply to any nonconforming parking, storage or display surface area constructed on a material other than an all-weather material prior to July 1, 1970, provided that such nonconforming use of the surface area has not been discontinued for a period of thirty-six (36) consecutive months, or for thirty-six (36) months during any four (4) year period (except when governmental action impedes access to or the use of the premises).

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SECTION    1408.    ADULT ENTERTAINMENT ESTABLISHMENTS

An Adult Entertainment Establishment, as listed in Use Unit 12a, lawfully existing at the effective date of this Code, or any subsequent amendment, but which does not comply with a parking, loading, spacing or screening requirement or requirements of this Code, shall be deemed nonconforming and may continue subject to the following provisions.

A.    No such use may be enlarged or extended;

B.    No such use may be changed to another use which would not meet parking, loading, screening and spacing requirements, unless changed to a use within Use Units 11, 13 or 14; provided that the Board of Adjustment may permit by special exception other uses otherwise permitted by right or exception within the zoning district, even though such use may be nonconforming as to parking, loading, screening or spacing;

C.    No such use which contains a public entrance door that is within 50 feet of an R District, as set forth in Section 1212a.C, shall continue more than one year from the date this provision first became effective; and

D.    No such use that is less than 300 feet from an R District and is nonconforming as to off-street parking or loading requirements as set forth in Section 1212a.D shall continue for more than one year from the date this provision first became effective. The 300 feet shall be measured in a straight line from the nearest building wall of the Adult Entertainment Establishment to the nearest point on a residential zoning district boundary line (not including residentially zoned expressway right-of-way).

The Board of Adjustment may, as a special exception, reduce the number of required off-street parking spaces on a lot, or may allow the required off-street parking on a lot other than the lot which contains the business, so long as the off-site parking is within the owner's control, accessible, convenient and safe for patrons, and provided the Board finds that the use is not injurious to the neighborhood or otherwise detrimental to the public welfare.

E.    The change of a nonconforming Adult Entertainment Establishment from a Non-Sexually-Oriented Business to a Sexually-Oriented Business is considered a change of use and the new Sexually-Oriented Business shall comply with all the requirements of this code.

F.    If the use of a nonconforming Sexually-Oriented Business is discontinued for any reason whatsoever for a period of 180 days or more, such use shall not be reestablished unless it complies with all of the requirements of this code.

G.    In the event that two or more Adult Entertainment Establishments are separated by a lesser distance than required by this code, the first such Adult Entertainment Establishment licensed and continually operating at a particular location shall be a conforming use as to spacing and the later establishment(s) shall be nonconforming.

SECTION    1409.    DANCE HALL ESTABLISHMENT

A Dance Hall lawfully existing at the effective date of this Code, or amendment thereto, but which does not comply with a parking, loading, spacing or screening requirement or requirements of this Code, shall be deemed nonconforming and may continue subject to the following provisions:

A.    No such use may be enlarged or extended; and

B.    No such use may be changed to another use which would not meet parking, loading screening and spacing requirements, unless changed to a use within use Units 11, 13 or 14; provided, however, the Board of Adjustment may permit by special exception other uses otherwise permitted by right or exception within the zoning district, even though such use may be nonconforming as to parking, loading, screening or spacing;

C.    Such use which is nonconforming as to off-street parking and loading requirements, as set forth in Section 1219.D. and/or setback (spacing) standards from R districts as set forth in section 1219.C, shall terminate within one year from the date this provision first became effective.

The Board of Adjustment may, as a special exception, reduce the 300 foot spacing requirement from an R District, and may reduce the number of off-street parking spaces on a lot or may allow the required off-street parking on a lot other than the lot which contains the business, so long as the off-site parking is within the owner's control, accessible, convenient and safe for patrons, and provided the Board finds that the use is not injurious to the neighborhood or otherwise detrimental to the public welfare.

SECTION    1410.    STROBE AND BEACON LIGHTS

Strobe and beacon lights, if visible from a public street, shall be removed immediately, unless otherwise required by law.

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