Chapter 5
Nonconformities

6.501 Intent.

It is the intent of this ordinance to recognize that the eventual elimination, as expeditiously as is reasonable, of existing uses or structures that are not in conformity with the provision of this ordinance is as much a subject of health, safety, and welfare as is the provisions of this ordinance. It is also the intent of this ordinance that any elimination of nonconforming uses or nonconforming structures shall be effected so as to avoid any unreasonable invasion of established private property rights.

6.502 Type “A” Nonconformity.

A type “A” nonconformity is a use, lawfully existing at the time of enactment of this ordinance or an amendment thereto, that does not conform to the provisions of this ordinance and that is located in a building that, because of its design, bulk, arrangement or other features, cannot be readily remodeled or adopted to serve a use that does conform to the provisions of this ordinance for the district in which such building is located.

Any type “A” nonconformity existing at the time of enactment or amendment of this ordinance may be maintained in good condition and continued, but may not be:

A.    Changed to a different nonconforming use, unless such different use is found by the board of appeals to be no more detrimental to the district than the previous use.

B.    Re-established after discontinuance for 12 months.

C.    Extended or enlarged.

D.    Rebuilt or repaired, after damage, if the expense of reconstruction of the building or structure exceeds 50 percent of the insurable value of the building or structure at the time such damage occurred.

6.503 Type “B” Nonconformity.

A type “B” nonconformity is a use, lawfully existing at the time of enactment of this ordinance or an amendment thereto, that does not conform to the provisions of this ordinance and that is located in a building that can be readily adopted to serve a use that does conform to the provisions of this ordinance, or a use similarly lawful located on open land.

Any type “B” nonconformity existing at the time of enactment or amendment of this ordinance may be maintained in good condition and continued, but may not be:

A.    Changed to a different nonconforming use.

B.    Re-established after discontinuance for three months.

C.    Extended or enlarged.

D.    Rebuilt or repaired, after damage, except for occupancy by a conforming use, if the expense of reconstruction of the building or structure exceeds 50 percent of the insurable value of the building or structure at the time such damage occurred.

6.504 Type “C” Nonconformity.

A type “C” nonconformity is a building or structure, lawfully existing at the time of enactment of this ordinance or an amendment thereto, that does not conform to a dimensional requirement of this Ordinance.

Any type “C” nonconformity existing at the time of enactment or amendment of this ordinance may be continued, but may not be altered, extended or enlarged, unless such alteration, extension, or enlargement conforms, in the opinion of the board of appeals, as nearly as is reasonable to the provisions of this ordinance.

Alterations that do not change the degree of nonconformance in reference to area, height, bulk and placement regulations or any supplementary regulation pertaining to the district in which the nonconforming use is located, such as minor repairs and maintenance work, do not under this paragraph require board of appeals approval.

6.505 Record of Nonconformity.

The building official shall maintain a complete record of all cases of type “A” and type “B” nonconformities. Such record shall contain the names and addresses of the owners and of any occupant thereof other than the owner, together with the legal description of the premises, and the classification of nonconformance in accordance with the definitions, and the basis for such classification.

After such a record is prepared and similarly after each subsequent annual review of such record, owners of such premises shall be informed by the building official by certified mail of the recordation of the premises as being in nonconformity with this ordinance and the provisions thereof for such nonconformity.

The board of appeals shall decide on appeals pertaining to whether or not the type of nonconformity above recorded actually exists.

6.506 Application to Lots of Record.

A.    Except as provided in Subsection C, below, where the owner of a lot of record does not own and cannot reasonably acquire sufficient abutting land to enable him to conform to the open space and other requirements herein prescribed, such lot may be used by such owner as a building site provided the open space and other provisions conform as closely as possible in the opinion of the board of appeals to the requirements for the district in which it is located.

B.    Except as provided in Subsection C, below, where two or more abutting lots of record are held in one ownership, either in fee simple and/or under a vendee’s land contract interest, or subsequently come to be held in one ownership, they shall be considered the same as a single lot of record for the purpose of this ordinance, and the provisions of this ordinance shall not thereafter be circumvented or avoided by the willful sale or conveyance of a part or portion of any parcel or parcels, except as in Subsection C, below.

C.    For the purpose of erecting a single-family detached dwelling within the R-1 One-family Dwelling District and R-2 Two-family and Terrace Dwelling District, a previously platted (or otherwise legally created) non-conforming lot, including those which are contiguous with one (1) or more other lots under the same ownership, shall be considered conforming with respect to the applicable minimum required lot width and lot area requirements of this ordinance IF the proposed development or said lot would conform to all other applicable requirements and standards, including but not limited to: building appearance and placement, minimum floor area and height etc. AND any one or more of the following circumstances apply:

1.    The planning administrator has determined the lot in question is the same size or larger, with respect to its lot width and lot area, than the majority (50% or more) of those lots in the surrounding area that are developed with existing single-family dwellings. For purposes of this section, “surrounding area” shall mean all of the lots abutting either side of the street(s) that abut the lot in question and which are also located within 500 feet of said lot.

2.    Neither the current owner nor prospective purchaser of the lot in question owns the adjacent property(s), and the lot in question is at least 40 feet wide and provides a lot area of no less than 4,800 sq. ft.

    If none of the above two circumstances apply, such lot(s) shall not be developed, divided, utilized or sold in a manner that diminishes compliance with the lot and/or area requirements of this Ordinance.

D.    Any variance request to the Zoning Board of Appeals for any provisions of this section shall include a survey, floor plan and building elevations that clearly indicate conformance or non-conformance with all Ordinance requirements including, but not limited to appearance, placement, minimum floor area, maximum accessory building size and height.

E.    In addition, the Zoning Board of Appeals, on hearing any appeals and/or variance requests from this Section, shall consider the following in their decision:

1.    The width, size and general character of the existing lots and single-family dwellings in the neighborhood and/or area.

2.    The width and shape of the lot leaves adequate buildable area to allow the construction of a dwelling that is in harmony with the character of the neighborhood and/or area.

3.    The extent to which other developed lots in the neighborhood and/or area have maintained required yards, lot area and width.