§ 27-388. Authority to continue nonconforming buildings, structures, signs and uses.

Any nonconforming building, structure, sign or use which exists lawfully and which remains nonconforming, and any such building, structure or use which shall become nonconforming upon the adoption of any amendment to this subdivision, may be continued in accordance with the provisions which follow. Subsection (2) of this section sets out certain situations in which a nonconforming use may be presumed or considered to be lawfully existing. Where two or more of the following provisions apply to a particular situation, the most restrictive requirements shall control.

(1)

Nonconforming uses of land. The lawfully existing nonconforming use of land not involving a building or structure, or where any building or structure thereon is merely incidental or accessory to the principal use of land, may be continued subject to the following provisions:

a.

Expansion. A nonconforming use of land shall not be added to or extended beyond the area it occupies.

b.

Discontinuance. If a nonconforming use of land is discontinued for a period of six consecutive months, it shall not thereafter be renewed, and any subsequent use of land shall conform to the regulations of the district in which the land is located.

c.

Change of use. A nonconforming use of land shall not be changed to any other use, except to a use permitted in the district in which the land is located.

(2)

Nonconforming uses of buildings or structures. The lawfully existing nonconforming use of part of a building or structure may be continued subject to the following provisions:

a.

Expansion. A nonconforming use may be extended throughout the building or structure in which said use is presently located, provided no structural alterations except those required by law or permitted by the regulation of the district in which the building or structure is located are made therein. Such structural alteration shall not provide floor area expansion.

b.

Discontinuance. If a nonconforming use of a building or structure is discontinued for a period of two years, it shall not be renewed, and any subsequent use of the building or structure shall conform to the use regulations of the district in which the premises are located; provided, however, the period of discontinuance shall be 18 months for private clubs and outdoor advertising signs. When a nonconforming use is abandoned for any period of time without a present intention to reinstate the nonconforming use, the property involved may thereafter be used only by conforming uses. A commercial or industrial nonconforming use shall be considered to have been abandoned when it has been converted to a use that is not legally nonconforming. The determination that such an illegal conversion has occurred shall be made by the city administrator after thorough review. A written record informing the owner or occupant of the decision and of its basis shall be sent to the address of the abandonment and the address of the owner. The decision may be appealed to the board of zoning appeals.

c.

Change of use. The nonconforming use of a building or structure may be changed to another nonconforming use of the same or more restrictive zoning district. Whenever a nonconforming use has been changed to a more restrictive use or a conforming use, such use shall not hereafter be changed to a less restrictive use. In the particular case of commercial and/or industrial nonconforming uses in residential zoning districts, the nonconforming use of such a building or structure may be changed to another nonconforming use only upon approval by the planning commission and unified government board of commissioners and only under all of the following conditions:

1.

Adequate notice to owners of all property within 200 feet.

2.

The applicant shall show that the nonconforming use cannot reasonably be changed to a permitted use.

3.

The applicant shall show that the proposed change will be less objectionable in external effects than the previous or existing nonconforming use, with respect to:

(i)

Traffic generation and congestion.

(ii)

Noise, smoke, dust, fumes, heat, odor, glare or vibration.

(iii)

Storage and waste disposal.

(iv)

Appearance.

d.

Repairs/restoration. Requirements set out under subsection (3)a of this section are fully applicable here.

(3)

Nonconforming residential use of residential buildings.

a.

Generally. In the particular case of nonconforming residential uses of residential buildings, a nonconforming use permit shall be required for continuation of such a use. Such uses will be those containing more dwelling units than allowed under the zoning applicable at the time of conversion. An application for a nonconforming use permit shall be made within 60 days of the receipt of written notice that such an application is necessary, but in no case may an initial application be made after March 31, 2008. Only the property owner may make such an application. The application for the permit shall include the petition, evidence of required period of existence, a site plan, floor plans, and other information as required to substantiate the permit. The burden of proof shall be on the owner/applicant to establish the period of existence. A nonconforming use permit, if approved, may be revoked under the criteria and procedures set forth in section 27-209.

b.

Nonconforming use permits. The building official, in consultation with the director of planning and zoning shall issue a nonconforming use permit if any one of the sets of standards set out in this subsection is met:

1.

There is clear and convincing evidence that the existing nonconformance was established prior to and existing continuously from December 30, 1941.

2.

There is clear and convincing evidence that the existing nonconformance was established prior to and existing continuously from July 28, 1956, and that:

(i)

No past application has been ruled upon adversely by the board of zoning appeals or unified government board of commissioners.

(ii)

There is compliance with all applicable code requirements.

(iii)

There has been written notification by mail to all property owners within 200 feet of the property for which the nonconforming use permit is pending to determine if there are objections to the issuance, and that no written objections have been received within two weeks of the mailing.

(iv)

Unless otherwise approved under subsection (3)b.3 of this section by the unified government board of commissioners, the term of the nonconforming use permit is ten years and it is only applicable to the property owner to whom it is granted.

3.

The unified government board of commissioners after recommendation by the planning commission has approved or modified and approved a nonconforming use permit following the process and standards set out as follows:

(i)

Mailed notice to all property owners within 200 feet of the consideration by the planning commission and unified government board of commissioners.

(ii)

The unified government board of commissioners may attach conditions to ensure the public welfare which establish expiration dates, limit changes of ownership, require physical changes and improvements, or reduce the number of dwelling units. Unless otherwise approved by the unified government board of commissioners, the term of the nonconforming use permit is ten years and it only applicable to the property owner to whom it granted.

(iii)

The planning commission and unified government board of commissioners shall not consider an application for nonconforming use permit until building official or his designee has inspected the premises and provided to the property owner the changes and improvements necessary to achieve compliance with all applicable code requirements along with an estimate of the cost of compliance. Repairs made or expenses incurred prior to approval shall not be a factor in the consideration of the nonconforming use permit. The improvements required shall completed and approved within 180 days of the nonconforming use permit approval or that approval shall be null and void.

(iv)

The unified government board of commissioners may approve a nonconforming use permit upon finding that the use has been in existence continuously for a period of at least 20 years prior to the date of application, that provision for parking is adequate, that rezoning the property would result in "spot" zoning or a zoning or a zoning inappropriate to surrounding land uses, and that the use will not be detrimental to character of the immediate neighborhood or be detrimental to the public health, safety, or general welfare.

(4)

Nonconforming buildings or structures. Any lawfully existing building or structure which does not conform with the height or area regulations of the district in which it is located or any building within which a nonconforming use is located shall be subject to the following provisions:

a.

Repairs/restoration. A nonconforming building may be repaired, restored, or rehabilitated without time limit so long as it remains a completely enclosed structure with the bulk of its structural members intact. A nonconforming building or structure which is wholly or partially destroyed by fire or other casualty or act of God, or legally condemned, may be restored or reconstructed to its previous size and location; provided, however, that where the bulk of structural members must be reconstructed, in an area which interferes with existing or proposed street rights-of-way or necessary sight distance as set out in division 12 of this article and section 27-637, reconstruction shall be altered to eliminate such interference. Such restoration shall be completed within 12 months of the date of damage excluding any time for litigation.

b.

Enlargements. There shall be no increase in the amount of any nonconformity. A nonconforming building or structure may be enlarged, provided such enlargement complies with the regulations and standards of this article.

(5)

Nonconforming signs. Any lawfully existing sign which does not conform with all applicable regulations shall be considered a nonconforming sign. (A lawfully existing roof sign structure in districts CD, M2, and M3 shall be considered a nonconforming sign). Such nonconforming signs may continue in use subject to the following provisions:

a.

Repairs/maintenance. Ordinary repairs or maintenance may be made on a nonconforming sign. Changing copy or logo shall be considered maintenance if the information, product or service depicted remains the same and if the sign is to serve the identical establishment using the same business name as before the change. Where a nonconforming electrical sign or sign face is in good condition and can be reused without changes in its shape or size, such reuse shall be considered repair or maintenance even for a different business. Where a sign surface is damaged or destroyed by fire or other casualty or act of God and the sign supports remain intact, the sign surface may be replaced to its original size and location.

b.

Refacing/alteration. Sign refacing shall include changing or replacing the surface of the sign to serve a different establishment or business or to create a substantially different visual effect. The normal changing of the message on an outdoor advertising sign shall not be a violation of this provision. Sign alteration shall include the replacement, enlargement, or reshaping of a sign frame, pole, brackets or any supporting member. Nonconforming signs may be refaced or altered so long as the degree of nonconformity is not increased if they meet all the following requirements:

1.

No taller than 1½ times the maximum permitted in the applicable zoning district.

2.

No closer to any property line than one-half the minimum setback permitted in the applicable zoning district. A lesser setback may be permitted, if there is no other feasible sign location.

3.

No larger in area than 1½ times the maximum permitted in the applicable zoning district.

This subsection does not permit a sign conforming in height and/or area and/or setback to become nonconforming in any of those criteria.

(Code 1988, § 27-1067; Ord. No. 64690, § 1(27-63.2), 8-30-1984; Ord. No. 65417, § 8, 4-6-1989; Ord. No. 65567, § 1, 9-20-1990; Ord. No. 65658, § 1, 9-5-1991; Ord. No. 65814, § 5, 7-8-1993; Ord. No. 66138, § 3, 8-15-1996; Ord. No. O-12-98, § 1, 3-26-1998; Ord. No. O-105-00, § 1, 11-30-2000; Ord. No. O-92-02, § 1, 10-31-2002; Ord. No. O-24-06, § 1, 3-2-2006)