§ 27-389. Nonconforming conditions or characteristics of use.

(a)

Certain lawfully nonconforming conditions or characteristics of use are related both to the uses of the property and the size, configuration and existing development. These include number and arrangement of parking spaces and loading areas as well as performance standards, which require distances or spacing. These conditions or characteristics of use are afforded legal nonconforming status where the size or layout of the site prevents compliance. However, no change of use or change in a building or structure shall be permitted which creates a deficit or significantly increases an existing deficit in off-street parking spaces, loading areas, or performance standards. A deficit exists when the proposed use of the property requires more parking or loading area as set out for the particular use in the zoning district than can be provided.

(b)

For new uses that do not involve sale or consumption of alcoholic beverages, are closed between 10:30 p.m. and 5:00 a.m., and are to be located in an existing building, existing on-street parking on frontage adjoining the proposed use may be counted toward meeting increased parking requirements. Only on-street parking located within nonresidential zoning districts may be counted. On-street parking which is not adjoining, but is within 100 feet of, the proposed use may be included with the written permission of the owner of the frontage adjoining the on-street parking.

(c)

Certain other lawfully nonconforming conditions or characteristics of use are not afforded the same right to be continued. These include, but are not limited to, screening, surfacing and other improvements to parking, loading and vehicular maneuvering areas, and conformance with performance standards. The following provisions establish a procedure for remedying certain nonconforming conditions or characteristics of use in certain situations:

(1)

Remedy of certain lawfully nonconforming conditions. It is recognized that certain conditions may exist on some multifamily, commercial or industrial sites within the city which do not conform to one or more standards or requirements of this article but which may be remedied, corrected or mitigated without unreasonable cost or effort and which would promote the general welfare of neighboring property and the community at large. Such conditions include lack of screening on unsightly areas, inadequate surface on parking areas or drives, discharging surface water, noncompliance with one or more performance standards and other similar conditions. It is the intent of this section to require reasonable remedy, correction or mitigation of such nonconforming conditions concurrent with significant new construction or other improvements and in cases where serious adverse effects are experienced by nearby property owners or by the public in general.

(2)

Significant new construction. The building official, upon recommendation of the development review committee, may order compliance or moves toward compliance for a property as a whole as a part of new construction or alteration or expansion of a main building that expands existing floor area by more than 25 percent. In addition:

a.

Where a storage or service area is required by this article to be screened and where the required screening is not precluded by topographic or other uncontrollable conditions, and where the area is viewed by neighboring property owners or the public, the building official may order required screening to be installed within a 60-day period following the issuance of a building permit.

b.

Where surface water flows onto adjoining property in quantity or with a velocity that produces damage and where redirection or detention of part or all of such water can reasonably be accomplished, the building official may so order such redirection or detention be accomplished within a 60-day period following the issuance of a building permit.

c.

Where a parking area, drive or other outdoor service area is without a dust-free and impervious paved surface and the resulting dust, mud, surface water or unsightliness is experienced by the general public, employees, tenants or others who use the area, or by neighboring property owners, the building official may order asphalt or concrete pavement or other suitable surface be installed within a period of 180 days following the issuance of a building permit.

d.

Where performance standards as set out in this article are exceeded or violated by a use of land or building and such violations can be corrected or abated without unreasonable cost or other penalty on the part of the occupant or owner, the building official may order such correction to be made within a reasonable time after issuance of a building permit.

(3)

Serious adverse effects. The county administrator, after evaluating the specific property and making a finding that action is called for by one or more of the following, may instruct the building official to order improvements to remedy such situation in line with the conditions and time frames established under subsections (c)(2)a—d of this section:

a.

The physical or mental health of nearby occupants is in jeopardy.

b.

The marketability or usefulness of nearby property is depressed.

c.

The nonconformance is a result of negligence, incompetence or mischief.

d.

The nonconformance produces a prominent and widely observed adverse condition that is in contrast with and out of character with the balance of the neighborhood or community.

In case an owner or occupant believes that the remedy, correction or mitigation is unreasonable, illegal or without foundation, an appeal may be made to the board of zoning appeals that shall have final authority in the matter.

(Code 1988, § 27-1068; Ord. No. 64690, § 1(27-63.3), 8-30-1984; Ord. No. O-112-01, § 1, 11-29-2001)