e. Conforming use
in a legal nonconforming structure means a use or activity complying with
the zoning ordinance or any amendment thereto, but which is conducted in a
building or utilizes a structure that, because of some design characteristic,
fails to conform to an ordinance passed after the building or structure has
been constructed.
f. Legal
nonconforming structure or building means a lawfully existing structure
which becomes nonconforming because of an ordinance enacted subsequent to its
erection. The nonconformance may be attributed to size, nature of construction,
location of the structure or building on the land, or its proximity to another
structure or building.
g. Legal
nonconforming sign means a physical method of identifying a name, symbol or
token, including the sign structure (including framework and supports), which was
lawful when constructed but has become nonconforming as a result of any
amendment to this chapter.
h. Certificate of
legal nonconformance means a determination that a legal nonconformance has
been established. A certificate of occupancy for a legal nonconforming use, as
previously required, shall be deemed to be a certificate of legal
nonconformance.
(2) Continuance of legal
nonconformities.
a. Nonconforming
uses authorized. A legal nonconforming use existing prior to the passage of
this chapter or amendment thereto may be continued, except as otherwise
provided in this section.
b. Amortization of
legal nonconforming uses of land. Legal nonconforming use of land shall be
discontinued within one year from the effective date of this chapter or amendment
thereto which makes the use of land nonconforming unless, in either case, such
land is wholly or partially occupied with a permanent, enclosed building, the
design or use of which is nonconforming.
c. Legal
nonconforming structures or buildings. The lawful use of a structure or
building, prior to the effective date of this chapter or amendment thereto,
which is nonconforming as to design, shall be permitted to continue for the
usable life of the structure or building as provided in this section.
d. Nonconforming
distance from a residential district. When a building in a zoning district
is occupied by or designed for a use which is classified in that district, but
does not conform to the distance requirements from a residential district, then
any subsequent change in use shall be to a use that conforms to the distance
requirements specified for the district.
e. Legal
nonconforming signs. All legal nonconforming signs shall be permitted to
continue during the usable life thereof.
f. Construction of
nonconforming use provisions regarding adult businesses. The following
provisions shall apply to the application of the nonconforming use provisions
of this Section 80-230 to adult businesses:
i. Each
of the following shall be considered a unique and separate adult business:
adult cabaret, adult media store (which will be considered a single use even if
it also includes adult books and other printed matter); massage shop, modeling
studio, bathhouse, adult motion picture theater and/or sex shop.
ii. An
adult media store is a less intensive use than a sex shop. Any nonconforming
use as a sex shop may be converted to a nonconforming use as an adult media
store at any time with written notice provided to the director of codes administration
without any further approvals or actions required by the City. If a
nonconforming use as a sex shop is converted to a nonconforming use as an adult
media store, it may not thereafter be converted.
iii. Except
as provided in subparagraph ii of this subsection (2)f, where a certificate of
legal nonconformance establishes a right to operate one or more adult
businesses at a particular location, only the business or businesses
specifically identified in the certificate of legal nonconformance shall be
allowed and no other adult business shall be allowed as a nonconforming use at
that particular location. The provisions of subsection (4) of this Section
80-230 shall not apply to adult businesses established as nonconforming uses
and the director of codes administration has no authority to authorize a change
to a certificate of legal nonconformance for an adult business except as
provided in this subsection (2) of this Section 80-230.
iv. Certificates
of legal nonconformance issued for an adult business shall apply to all aspects
of the nonconformance of the adult business with the Zoning Ordinance,
including the separation requirements established specifically for adult
businesses in this Zoning Ordinance.
v. Notwithstanding other provisions of Section
80-230, an adult business which includes one or more motion picture arcade
booths for which there is a certificate of legal nonconformance shall be
allowed to relocate the motion picture arcade booths incident to a relocation
of the business, subject to the following terms and locations: (1) the motion
picture arcade booths may be relocated only if the relocation involves all
adult businesses or all aspects of the adult businesses on the premises which
do not conform to the Zoning Ordinance in that location; (2) not more than the
number of motion picture arcade booths shown on the certificate of legal
nonconformance or proven by the applicant to be subject to the certificate of
legal nonconformance may be relocated; (3) not more than the number of motion
picture arcade booths actually in operation on the date of application for
relocation may be relocated; (4) the motion picture arcade booths may be
relocated only in conjunction with the relocation of all adult businesses or
all aspects of the adult businesses on the premises which do not conform to the
Zoning Ordinance; (5) the location to which the motion picture arcade booths
are relocated must conform in all respects to the Zoning Ordinance as to all
other aspects of the adult business, including separation and other
requirements specifically applicable to the adult business which is relocating;
(6) the relocated motion picture arcade booths shall conform fully with the
requirements of Section 12-67 of the Code of Ordinances, including the design
requirements; (7) after such relocation, the motion picture arcade booths shall
be the subject of a certificate of legal nonconformance as though they had
always been at the new location, except that the certificate of legal
nonconformance shall, on its face, reflect the fact of the relocation and the
actual history of the booths involved. Any relocation of an adult business,
including motion picture arcade booths, shall be approved by the director of
codes administration upon receipt of a written request and such other
information that the director may request provided that the standards applied
to the determination of approval or denial shall be the conditions set forth in
this subparagraph (v). Upon approval of the relocation of the adult business with
the motion picture arcade booths, the certificate of legal nonconformance at
the previous location shall be void.
(vi) No
building arranged or designed for or devoted to a legal nonconforming use may
be extended or enlarged or structurally altered; provided however that
alterations to the roofs of structures, including roof pitches, may be approved
by the Director of Codes Administration if the alteration does not increase the
floor area or usable space of the structure and that establishments with media
rooms, preview rooms or other spaces created as exempt from Second Committee
Substitute for Ordinance No. 970827, As Amended, hereinafter referred to as
Ordinance 970827" as codified at section 12-275 through section 12-283,
because they were nominally designed to seat ten (10) or more people, shall
have until May 1, 1999, to remove the doors from those rooms and to take other
actions to bring those spaces into compliance with section 12-67(a)(1), (2) and
(3). As an alternative, the establishment may replace those rooms with no more
than the number of motion picture arcade booths existing in the same space
prior to the passage of Ordinance No. 970827, on July 3, 1997, provided that
each and every replacement motion picture arcade booth shall fully conform to
the requirements of this section, and particularly with section 12-67(a)(1),
(2) and (3); any booths created by conversion under this section shall be
treated as legal nonconforming uses, as though they had existed continuously
from the date of passage of Ordinance No. 970827 until passage of Second
Committee Substitute for Ordinance No. 981270. The provisions of subsections
(3)(b) and (c) of this Section 80-230 shall specifically not apply to adult
businesses established as nonconforming uses. However, normal repairs and
alterations may be made to a legal nonconforming building provided that no
structural alterations are made except as otherwise permitted in this
subsection (2)(f)(vi).
(3) Extension, expansion or
repair of legal nonconforming uses.
a. The extension of
legal nonconforming use to any portion of a building, which portion constructed
expressly for such nonconforming use prior to the effective date of this
chapter or amendment thereto, shall be permitted, provided no structural
alterations are made.
b. No building
arranged or designed for or devoted to a legal nonconforming use may be
extended or enlarged or structurally altered unless the use of such building is
changed to a conforming use or unless a special permit shall be granted by the
board of zoning adjustment in the case of evident hardship; provided however,
that alterations to the roofs of structures, including roof pitches, may be
approved by the Director of Codes Administration if the alteration does not
increase the floor area or usable space of the structure. The special permit
shall not authorize an extension in excess of 25 percent of the ground area of
the original building; and, further, an extension of the original building
shall in no case authorize the construction of a new and separate structure.
c. No legal
nonconforming use of the land may be extended to cover additional land area
unless the use of the land is changed to a conforming use or unless a special
permit shall be granted by the board of zoning adjustment in the case of
evident hardship. The special permit shall not authorize an extension in excess
of ten percent of the land covered by the original nonconforming use or authorize
the construction of any structure or building.
d. No legal
nonconforming sign shall be extended, enlarged or structurally altered except
as provided in subsection (7)b of this section; provided that, notwithstanding
anything in this chapter to the contrary, nonstructural alterations or
modifications designed to improve the appearance of a legal nonconforming
outdoor advertising sign without increasing its usable life may be made upon
the prior approval of the director of codes administration.
e. Normal repairs and
alterations may be made to a legal nonconforming building, provided that no
structural alterations shall be made, except those required by law or
ordinance.
(4) Restrictions on changing
legal nonconforming uses.
a. No legal nonconformance
shall be changed to another use unless the director of codes administration
determines that the use is an equal or higher (more restricted) use and that
all other applicable regulations, including but not limited to parking,
setbacks and density, are met, and authorizes the requested change based upon
such determination.
b. If a nonconforming
use is changed to a higher (more restricted) nonconforming use, it may not
thereafter be changed unless to an equal or to a still higher nonconforming use
or to a conforming use.
c. For the purpose of
this chapter, a nonconforming use shall be deemed to be changed to an equal or
a higher (more restricted) use when the use to which such nonconforming use is
changed is a use included in the same district classification or in a district
classification preceding the district in question in the arrangement of
districts in this chapter.
d. A nonconforming
use, if changed to a conforming use, may not thereafter be changed back to a
nonconforming use.
(5) Abandonment of legal
nonconformance.
a. A legal
nonconformance which has been established as such by issuance of a certificate
for legal nonconformance shall not be resumed if discontinued or abandoned.
Discontinuance or abandonment shall be defined as follows:
1. When
unimproved land used in a nonconforming manner shall cease to be used as such
for 90 consecutive days.
2. When a
structure or building designed or arranged for a nonconforming use or for a
conforming use shall cease to be used in a nonconforming manner for a period of
12 consecutive calendar months.
3. When a
legal nonconforming sign ceases to display a message, name, symbol or token for
a period of 90 days.
4. When a
legal nonconforming on-premises sign ceases to identify an activity on the same
site for a period of 90 days.
5. When a
legal nonconforming sign is changed, modified or otherwise altered in any
manner without prior approval of the director of codes administration pursuant
to subsection (4)a of this section or prior approval of the board of zoning
adjustment pursuant to subsection (7)b of this section, provided that the
message on a legal nonconforming outdoor advertising sign, including any
changeable copy panels or any copy cutouts, copy extensions or other sign
embellishments, may be changed without seeking approval by the board.
Upon evidence of
hardship, the board of zoning adjustment shall have the authority to extend the
time limits set out in this subsection for a period not to exceed three months;
provided that the application for extension is filed prior to the expiration
dates set out in this subsection.
b. An existing
structure, building, use or sign which becomes nonconforming as to bulk or use
by virtue of any amendment to this chapter adopted after March 31, 1975, and
for which a certificate of legal nonconformance has not been secured within the
time permitted by subsection (6)d of this section, shall be deemed abandoned.
c. Notice of
abandonment shall be as follows:
1. Upon
receipt of evidence that a legal nonconformance has been abandoned, the
director of codes administration shall promptly notify the owner that an order
will be issued revoking the certificate of legal nonconformance, absent proof
that such nonconformance has not been so abandoned.
2. The
owner of the legal nonconformance shall be given a period of 30 days from the
date of receipt of notice from the director of codes administration to submit
evidence that the legal nonconformance has not been abandoned or discontinued.
3. At the
expiration of 30 days or as soon thereafter as possible, the director of codes
administration shall issue his order revoking or refusing to revoke the legal
nonconformance. The decision of the director of codes administration shall be
final unless appealed to the board of zoning adjustment within ten days of the
order of the director of codes administration.
(6) Establishment of legal
nonconformance.
a. A certificate of
legal nonconformance shall be issued by the director of codes administration
for all nonconformities lawfully established under the provisions of this
chapter.
b. Any existing
nonconformance established as such, prior to and existing continuously from the
effective date of this chapter, shall be presumed to be a legal nonconforming
use.
c. The owner of any
existing structure, building, use or sign made nonconforming as to bulk or use
by any amendment to this chapter after the effective date of this chapter but
before March 31, 1975, may apply to the director of codes administration for a
certificate of legal nonconformance pursuant to subsection (6)g of this
section.
d. The owner of any
existing structure, building, use or sign made nonconforming as to bulk or use
by any amendment to this chapter after March 31, 1975, shall have a period of
one year from the date the structure, building, use or sign is made
nonconforming to obtain a certificate of legal nonconformance from the director
of codes administration as provided in subsection (6)a of this section. The new
nonconforming use shall be made a part of the record during the adoption of any
such amendment, and the owner of record of the property shall be notified of
this requirement.
e. Within 30 days
after the effective date of any amendment to this chapter adopted after March
31, 1975, which shall render any existing structure, building, use or sign
nonconforming as to bulk or use, the director of the city development
department shall cause to be published a public notice in a daily paper, twice,
on two successive weeks, notifying all property owners and persons affected by
such amendment, known or unknown, of the provisions of this section and the
requirement that an application for a certificate of legal nonconformance must
be filed within the one-year period set forth in this section. The director of
the city development department shall also send by certified mail, return
receipt requested, a copy of such public notice, to the property owners or
persons affected, of every structure, building, use or sign actually known by
the director to be affected by the amendment to the ordinance resulting in
nonconformity as to use or bulk, and shall post a copy of the public notice at
two conspicuous places on the structure, building or land.
f. Each property
owner or person affected shall make application for the certificate of legal
nonconformance upon such forms as the director of codes administration shall
provide. A certificate of legal nonconformance shall then be issued by the
director of codes administration to the applicant if the nonconformity was
established and exists as provided for in this section.
g. For those
nonconformities which became nonconforming prior to March 31, 1975, a
certificate of legal nonconformance shall be issued by the director of codes
administration upon satisfactory proof being submitted by the applicant that
the nonconformity as to bulk or use was legally established prior to the
effective date of this chapter or any amendment thereto which created the
nonconformity as to bulk or use. Satisfactory proof shall also be submitted to
establish that such nonconformity has not previously been adversely ruled upon
by the director of codes administration, the board of zoning adjustment or a
court of competent jurisdiction. The director of codes administration or his
designee shall receive all competent evidence submitted, shall have inspected
the structure, building, use or sign which is the subject of the application,
and shall render his decision in writing either granting or denying the
certificate.
h. An appeal from the
decision of the director of codes administration may be taken by the applicant
or any aggrieved party in accordance with the provisions of section 80-310.
i. If no appeal is
taken within ten days from the date the decision of the director of codes
administration is issued, the decision shall become final and any certificate
of legal nonconformance issued or not issued shall establish the legality of
the nonconforming structure, building, use or sign.
j. Any structure,
building, use or sign made nonconforming by any amendment to this chapter or
after the effective date of this chapter for which the owner fails to obtain
the required certificate of legal nonconformance as provided in this section
shall be an illegal nonconforming structure, building, use or sign and as such
shall be in violation of this section and shall be prohibited.
k. The board of zoning
adjustment is hereby authorized to adopt rules and regulations to establish a
procedure for administration of this section by the director of codes
administration, and specifically to establish the procedure of determination of
satisfactory proof as required by subsection (6)g of this section.
(7) Restoration of destroyed
legal nonconformance.
a. Nothing in this
chapter shall prevent, within a period of six months from the date of the
destruction, the securing of a permit for the restoration of a legal
nonconformance not more than 50 percent, as measured by the fair market value
of the structure or building, destroyed by fire, explosion, act of God or act
of the public enemy.
b. If a legal
nonconforming outdoor advertising sign structure is lawfully or unlawfully
destroyed, dismantled, removed or damaged by a property owner's lessee or his
representative, or a trespasser, nothing in this chapter shall prevent such
owner from applying to the board of zoning adjustment for a special permit for
the restoration of such legal nonconforming sign within six months of the date
of the nonconforming sign's destruction or removal. The board shall issue such
permit upon a showing by the owner that:
1. A legal
nonconforming outdoor advertising sign existed on property owned by the
applicant within the six-month period immediately preceding the date of his
application to the board.
2. The
sign structure was destroyed, dismantled, removed or damaged by a lessee or his
representative or a trespasser without the consent of the property owner.
3. The new
sign structure does not permit an enlargement in the square footage of the sign
face, an enlargement of the number of sign faces, or an increase in
illumination.
The board shall
issue a permit to the applicant allowing restoration of the legal nonconforming
outdoor advertising sign upon such a showing and upon evidence submitted by the
applicant that an unnecessary hardship or practical difficulty would result if
the special permit were denied.
c. The determination
of whether a structure or building is 50 percent, as measured by the fair
market value, destroyed shall rest with the director of codes administration.
d. No permit for
restoration shall be issued by the director of codes administration unless a
certificate of legal nonconformance is presented with the request for a permit.
(8) Interpretation. Nothing
in this section shall be interpreted as authorization for or approval of the
continuance of the use of a building or premises in violation of zoning
regulations in effect at the time of the effective date of this chapter or of
any amendment thereto.
Section B. That
the Council finds and declares that before taking any action on the proposed
amendment hereinabove, all public notices and hearings required by the Zoning
Ordinance have been given and had.
_____________________________________________
I hereby certify
that as required by Chapter 80, Code of Ordinances, the foregoing ordinance was
duly advertised and public hearings were held.
___________________________________
Secretary,
City Plan Commission
Approved
as to form and legality:
___________________________________
Assistant
City Attorney