Chapter 8 – Noncomforming Uses and Noncomplying Structures

8.1 PURPOSE
8.2 DETERMINATION OF NONCONFORMING STATUS
8.3 AUTHORITY TO CONTINUE
8.4 ABANDONMENT OR LOSS OF NONCONFORMING USE
8.5 MOVING, ENLARGING, OR ALTERING NONCONFORMING USES
8.6 NONCOMPLYING STRUCTURES
8.7 ORDINARY REPAIR AND MAINTENANCE AND STRUCTURAL SAFETY
8.8 APPEALS

8.1 PURPOSE

This chapter regulates the continued existence of nonconforming uses and noncomplying structures as defined in Chapter 2. While nonconforming uses, noncomplying structures and improvements may continue, this chapter is intended to limit enlargement, alteration, restoration, or replacement which would increase the discrepancy between existing conditions and the development standards prescribed by this code. In addition, applications are reviewed to ensure that they are reducing the degree of nonconformity and improving the physical appearance of the structure and site through such measures as landscaping, building design, or the improved function of the use in relation to other uses.

8.2 DETERMINATION OF NONCONFORMING STATUS

  1. BURDEN ON OWNER TO ESTABLISH LEGALITY.  The owner bears the burden of establishing that any nonconforming use or nonconforming structure lawfully exists.
  2. DETERMINATION OF STATUS.  The Planning Commission shall determine the nonconforming or noncomplying status of properties. Any decision of the Planning Commission may be appealed within 30 calendar days of the decision to the Appeal Authority. 

8.3 AUTHORITY TO CONTINUE

  1. CONTINUATION OF NONCONFORMING USE. A lawful nonconforming use may continue subject to the standards and limitations of this chapter.
  2. CONTINUATION OF NONCOMPLYING STRUCTURE. A noncomplying structure that was lawfully constructed with a permit prior to a contrary change in this code may be used and maintained, subject to the standards and limitations of this chapter.

8.4 ABANDONMENT OR LOSS OF NONCONFORMING USE

  1. ABANDONMENT OF NONCONFORMING USE. A nonconforming use that is discontinued for a continuous period of 12 months is presumed abandoned and shall not thereafter be reestablished or resumed. Any subsequent use of the building, structure, or land must conform to the regulations for the zoning district in which it is located.
  2. REBUTTABLE PRESUMPTION OF ABANDONMENT. The presumption of abandonment may be rebutted upon showing that during such period: 
    1. any period of discontinued use was caused by governmental actions or an act of God without any contributing fault by the owner and the owner did not intend to discontinue the use; or
    2. the owner can demonstrate no abandonment of the use.

8.5 MOVING, ENLARGING, OR ALTERING NONCONFORMING USES

No nonconforming use may be moved, enlarged, altered, or occupy additional land, except as provided in this chapter.

  1. ENLARGEMENT. A nonconforming use may not be enlarged, expanded, or extended to occupy all or a part of another structure or site that it did not occupy on the date on which the use became nonconforming. A nonconforming use may be extended through the same building or structure provided no structural alteration of the building or structure is proposed or made for the purpose of the extension and the parking demand is not increased.
  2. EXTERIOR OR INTERIOR REMODELING OR IMPROVEMENTS TO BUILDING OR STRUCTURE. Exterior or interior remodeling or improvements to a structure containing a nonconforming use shall be allowed provided there is no expansion of the area of the nonconforming use.
  3. RELOCATION OF BUILDING OR STRUCTURE. A building or structure containing a nonconforming use may not be moved unless the use shall thereafter conform to the regulations of the zoning district into which the building or structure is moved.
  4. CHANGE OF NONCONFORMING USE TO A CONFORMING USE. Whenever any nonconforming use is changed to a conforming use, such use shall not later be changed back to a nonconforming use.

8.6 NONCOMPLYING STRUCTURES

No noncomplying structure may be moved, enlarged, or altered, except in the manner provided in this chapter or unless required by law.

  1. REPAIR, MAINTENANCE, ALTERATION, AND ENLARGEMENT.  Any noncomplying structure may be repaired, maintained, altered, or enlarged, provided that such repair, maintenance, alteration, or enlargement shall neither create any new noncompliance nor shall increase the degree of the existing noncompliance of all or any part of such structure.
  2. MOVING.  A noncomplying structure shall not be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zone in which it will be located.

8.7 ORDINARY REPAIR AND MAINTENANCE AND STRUCTURAL SAFETY

The owner may complete normal maintenance and incidental repair on a complying structure that contains a nonconforming use or on a noncomplying structure. This chapter shall not be construed to authorize any violations of law nor to prevent the strengthening or restoration to a safe condition of a structure in accordance with an order of the Building Official who declares such structure to be unsafe and orders its restoration to a safe condition.

8.8 APPEALS

Appeal from a Planning Commission decision made pursuant to this chapter shall be made to the Appeal Authority. Any person filing an appeal for review of any decision made under the terms of this chapter shall file such appeal within 30 days after the date of the Planning Commission’s final decision.

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Final copy approved by Fountain Green City Council February 18, 2008.  Minor changes April 19, 2012.