Division 10-20.60:
Nonconforming Provisions

Sections:

10-20.60.010    Purpose

10-20.60.020    Proof of Legal Nonconformity

10-20.60.030    Restrictions on Nonconforming Uses and Structures

10-20.60.040    Residential Exemptions

10-20.60.050    Loss of Nonconforming Status

10-20.60.060    Nonconforming Landscaping

10-20.60.070    Nonconforming Manufactured Home Parks

10-20.60.080    Nonconforming Outdoor Lighting

10-20.60.090    Nonconforming Parcels or Lots

10-20.60.100    Nonconforming Parking

10-20.60.110    Nonconforming Signs

10-20.60.120    Effect of Conditional Use Permit Requirements

10-20.60.010 Purpose

A.    Purpose. This division provides regulations for nonconforming land uses, structures, parcels, landscaping, manufactured home parks, parking, signs, and outdoor lights that were lawful before the adoption or amendment of this Zoning Code, but which would be prohibited, regulated or restricted differently in compliance with the current regulations.

B.    Intent.

1.    In order to limit the number and extent of nonconforming uses, structures, and parcels, created by adoption of this Zoning Code, it is the City’s intent to generally allow nonconformities to continue until they are removed, but not to encourage their long term continuation. These regulations, therefore, are intended to curtail substantial investment in nonconformities and to bring about their eventual improvement or elimination in order to preserve the integrity of this Zoning Code and the character of the City.

2.    Any nonconforming use, structure or parcel of land which lawfully existed as of the effective date of this Zoning Code and which remains nonconforming; and any use, structure or parcel of land which has become nonconforming as a result of the adoption of this Zoning Code, or any subsequent amendment to this Zoning Code, may be continued or maintained only in the manner and to the extent it existed at the time of adoption, amendment or extension of this Zoning Code, and in compliance with the terms of this division.

3.    It is further the intent of this division that nonconformities shall not be altered, enlarged, expanded, extended, moved or reestablished after abandonment or discontinuance or restored after involuntary destruction, except in compliance with this division.

4.    This division shall not apply to any use or structure established in violation of the previously adopted Zoning Code (Ord. 1690, adopted April 8, 1991, as amended), or any previous version of the City’s Zoning Code or amendments unless the use or structure presently conforms to the provisions of this Zoning Code.

(Ord. 2016-07, Amended, 2/16/2016 (Res. 2016-02))

10-20.60.020 Proof of Legal Nonconformity

A.    Property Owner’s Responsibility. The property owner shall provide sufficient evidence to the satisfaction of the Director that the subject property is a legal nonconformity as specified in this division.

B.    Appeal of Determination. Any person, firm or corporation aggrieved by a decision of the Director’s determination of nonconformity in interpreting, applying or enforcing this Division, may file an appeal in compliance with the appeal provisions established in Division 10-20.80, Procedures for Appeals.

10-20.60.030 Restrictions on Nonconforming Uses and Structures

A legal nonconforming land use and the use of a legal nonconforming structure may be continued, including transfers of ownership; provided, that their continuation shall comply with the requirements of this section. See Section 10-20.60.040, Residential Exemptions, for exceptions regarding certain residential uses and structures.

A.    Nonconforming Uses. The continuance of a legal nonconforming use shall be allowed subject to the following provisions:

1.    Change of Ownership. Change of management, ownership or tenancy of a nonconforming use shall not affect its nonconforming status; provided, that the use and intensity of use, as determined by the Director, does not change.

2.    Expansion of a Nonconforming Use. Except as provided in this division, a nonconforming use shall not be expanded or extended beyond the floor area or lot area that it occupied on the effective date of this Zoning Code or the effective date of any amendment to this Zoning Code rendering such use nonconforming.

3.    Conversion of a Nonconforming Use. If a nonconforming use is converted to a conforming use, no nonconforming use may be resumed.

4.    Changes to a Nonconforming Use. A nonconforming use may be changed to a permitted use or a conditional use for the zone in which the property is located. A nonconforming use shall not be established or replaced by another nonconforming use, nor shall any nonconforming use be expanded or changed, except as provided in this division.

5.    Single-Family or Multifamily Structures. A nonconforming use operating within a single-family or multifamily structure may only be replaced by a conforming use or another nonconforming use that is the same as or similar to the previous nonconforming use; provided, not more than 180 days have passed since the cessation of the previous nonconforming use; and further provided, the replacement nonconforming use does not create new impacts or an increase in intensity of the land use.

B.    Nonconforming Structures.

1.    Alteration. A nonconforming structure shall not be enlarged in any manner or undergo any structural alteration having the effect of increasing or extending any nonconformity unless to make it a conforming structure unless all the following provision are met:

a.    The enlargement or alteration conforms to the requirements of these regulations or does not increase the nonconformity;

b.    The enlargement or alteration does not increase the nonconforming “footprint” of the structure or add usable square feet to the nonconforming portion(s) of the structure, unless approved by the Director; and

c.    The use of the structure is conforming.

2.    Moving a Nonconforming Structure. A nonconforming structure shall not be moved in whole or in part to another location unless the structure or enlargement conforms to the standards for the zone to which the structure is moved. Moving of the structure shall comply with the requirements of Section 10-20.40.040, Building Relocation Requests.

3.    Ordinary Maintenance and Repairs. Reasonable repairs and alterations as determined by the Director may be made to a nonconforming structure.

10-20.60.040 Residential Exemptions

An involuntarily damaged or destroyed nonconforming single-family or multifamily dwelling unit may be reconstructed or replaced with a new structure within the same footprint (including pre-existing nonconforming setbacks), height and number of dwelling units, in compliance with current Building and Fire Code requirements.

10-20.60.050 Loss of Nonconforming Status

A.    Termination by Discontinuance.

1.    Nonconforming Use. If a nonconforming use is discontinued for 180 or more consecutive calendar days, then that use shall be deemed abandoned and lose its legal nonconforming status which cannot be renewed or reestablished. Any subsequent use of the parcel of land or structure shall conform to the regulations of the zone in which it is located.

2.    Affordable Rental Housing Units. None of the restrictions specified in this subsection shall apply if doing so would decrease the number of low-income rental housing units. The City will identify if the property qualifies as low-income rental housing based on Federal, State or local subsidies or program participation.

B.    Termination by Destruction. Nonconforming status shall terminate if a nonconforming structure, or a conforming structure occupied by a nonconforming use, is involuntarily damaged or destroyed as a result of an accident or by earthquake, fire, flood, windstorm, snowstorm or other abnormal and identifiable event, except as follows:

1.    Fifty Percent or Less. If the cost of repairing or replacing the damaged portion of the structure is 50 percent or less of the appraised value of the structure immediately before the damage (except as provided in Section 10-20.60.040, Residential Exemptions), the structure may be restored to its nonconforming condition and the use continued; provided, that a building permit is secured, reconstruction is started within 180 days from the date of the damage, and such reconstruction is diligently pursued to completion.

2.    Exceeds 50 Percent.

a.    Except as provided in Section 10-20.60.040, Residential Exemptions, if the cost of repairing or replacing the damaged portion of the structure exceeds 50 percent of the appraised value of the structure immediately before the damage, or the structure is voluntarily razed or is required by law to be razed, the structure shall not be restored except in full compliance with the applicable regulations for the zone in which it is located and the nonconforming use shall not be resumed.

b.    This limitation shall not apply if doing so would decrease the number of affordable rental housing units available in this City. The City will identify if the property qualifies as low-income rental housing based on Federal, State or local subsidies or program participation.

3.    Appraised and Estimated Values.

a.    All appraised values referred to in this section shall be determined by a State licensed appraiser and confirmed by the Building Official.

b.    Estimates of the cost of repairing or replacing the damaged portion of the structure for purposes of this section shall be made by the owner for review and approval by the Building Official. Estimates shall be based on the minimum cost of construction in compliance with the Building Code.

10-20.60.060 Nonconforming Landscaping

Whenever a nonconforming use, structure, or lot is abandoned for a period of 180 consecutive days and then changed to a new use according to the requirements of Section 10-20.60.030, Restrictions on Nonconforming Uses and Structures, then landscaping shall be installed and shall be reviewed and brought into compliance as necessary for the entire building, structure or premises, to the maximum extent feasible as determined by the Director.

10-20.60.070 Nonconforming Manufactured Home Parks

A.    Existing manufactured home parks located outside of the MH zone prior to the effective date of this Zoning Code are considered legal nonconforming uses. All new or replaced manufactured home units placed within legal nonconforming manufactured home parks shall meet the standards provided in subsection (C) of this section.

B.    A nonconforming manufactured home may be replaced by a park home permitted in accordance with Building Code requirements.

C.    A nonconforming manufactured home may not be replaced except as follows:

1.    Proof of State approval is required for all manufactured homes manufactured prior to 1976.

2.    A manufactured home of the same or lesser floor area may replace a nonconforming manufactured home.

3.    A manufactured home of larger floor area may replace a nonconforming manufactured home in a manufactured home park; provided, that the standards provided in subsections (C)(4) and (5) of this section can be met.

4.    The minimum space between manufactured homes or between a manufactured home and a building shall not be less than 10 feet at any point.

5.    The minimum space between a manufactured home and the property lines shall be five feet.

(Ord. 2016-07, Amended, 2/16/2016 (Res. 2016-02))

10-20.60.080 Nonconforming Outdoor Lighting

A.    General.

1.    If at the effective date of this Zoning Code, or of any extension resulting from annexation to the City, any existing outdoor lighting which is being used in a manner or for a purpose which is otherwise lawful, but does not comply with the provisions of Division 10-50.70, Outdoor Lighting Standards, shall be deemed legal but nonconforming, and shall be allowed to continue provided such fixtures are extinguished between the hours of midnight and sunrise by an automatic shut-off device.

2.    No modification or replacement shall be made to a nonconforming outdoor light fixture unless the fixture thereafter conforms to the provisions of Division 10-50.70, Outdoor Lighting Standards.

3.    Whenever a nonconforming use, structure or lot is abandoned for a period of 180 consecutive days and then changed to a new use according to the requirements of Section 10-20.60.030, Restrictions on Nonconforming Uses and Structures, then any existing outdoor lighting shall be reviewed and brought into compliance as necessary for the entire building, structure or premises.

10-20.60.090 Nonconforming Parcels or Lots

A.    Legal Building Site. No construction shall occur on a parcel or lot that does not comply with the applicable area, depth or width requirements of this Zoning Code unless it meets at least one of the following criteria, as documented by the applicant to the satisfaction of the Director.

1.    Approved Subdivision. The parcel or lot was created by a recorded subdivision as a legal building site (City Code Chapter 11-20, Subdivision and Land Split Regulations);

2.    Individual Parcel or Lot Legally Created by Deed. The parcel or lot is under one ownership and was legally created by a recorded deed as a legal building site before the effective date of this Zoning Code or the amendment that made the parcel or lot nonconforming; or

3.    Partial Government Acquisition. The parcel or lot was created in compliance with the provisions of this Zoning Code, but was made nonconforming when a portion was acquired by a governmental entity so that the parcel or lot size is decreased not more than 20 percent and the setback facing a public right-of-way was decreased not more than 50 percent. This provision does not apply if the government paid severance damages for loss of building rights.

B.    Subdivision of a Nonconforming Parcel or Lot.

1.    No subdivision or lot line adjustment shall be approved that would result in the nonconformity of an existing parcel or lot, or any nonconforming use on the parcel.

2.    If two or more lots or parcels with contiguous boundaries are owned by the same person, and if all or part of the lots or parcels do not meet the development standards of the zone, then the lots or parcels involved shall be considered to be an undivided parcel. No portion of said undivided parcel shall be used if it does not meet the development standards established in this Zoning Code, and the said undivided parcel or lot shall not be divided leaving any remaining lot or parcel which does not meet the development standards in this Zoning Code.

3.    Owners of single, nonconforming lots or parcels, or lots or parcels combined in compliance with subsection (B)(2) of this section that are nonconforming, may be granted a building permit upon approval by the Director. In granting the approval, the Director may authorize only development that complies with all relevant zoning requirements, except for minimum area requirements for the parcel and its dimensions.

(Ord. 2016-07, Amended, 2/16/2016 (Res. 2016-02))

10-20.60.100 Nonconforming Parking

Whenever a nonconforming use, structure, or lot is abandoned for a period of 180 consecutive days and then changed to a new use according to the requirements of Section 10-20.60.030, Restrictions on Nonconforming Uses and Structures, parking facilities shall be brought into compliance with Division 10-50.80, Parking Standards, to the maximum extent feasible as determined by the Director.

10-20.60.110 Nonconforming Signs

A.    General. If at the effective date of this Zoning Code, or of any extension resulting from annexation to the City, any sign which is being used in a manner or for a purpose which was otherwise lawful, but does not comply with the provisions of Division 10-50.100, Sign Standards, shall be deemed legal but nonconforming.

B.    Maintenance, Repairs, Alterations and Removal.

1.    Nonconforming signs are required to be maintained in good condition in compliance with Section 10-50.100.110, Nonconforming Signs. Maintenance of legal nonconforming signs shall be consistent with applicable Arizona law. Nothing in this Zoning Code shall affect existing property or the right to its continued use for the purpose used at the time this Zoning Code takes effect, nor to make any reasonable repairs or alterations. A legal nonconforming sign that has been damaged to the extent of more than 50 percent of the cost of reconstruction of the sign structure or is temporarily or permanently removed by any means, including “an act of God,” shall be removed or rebuilt, repaired or replaced only in compliance with the provisions of Division 10-50.100, Sign Standards.

2.    Removal of a nonconforming sign, or replacement of a nonconforming sign with a conforming sign, is required when the use of the sign and/or the property on which the sign is located has been abandoned, ceased operations, become vacant, or been unoccupied for a period of 180 consecutive days or more as long as the period of nonuse is attributable at least in part to the property owner, tenant, or other person or entity in control of the use. For purposes of this section, rental payments or lease payments and taxes shall not be considered as a continued use. In the event this should occur, such conditions will be considered as evidence of abandonment, requiring removal of such sign by the owner of the property, his/her agent, or person having the beneficial use of the property, building or structure upon which such sign or sign structure is erected within 30 days after written notification from the Director. If, within the 30-day period, such sign(s) is (are) not removed, enforcement action consistent with A.R.S. § 9-462.02 shall be pursued.

3.    As an incentive for the replacement of a nonconforming, freestanding sign with a new sign that is in closer conformance with the area and height standards of Section 10-50.100.060, Permanent Signs, a new freestanding sign may be approved and erected that is reduced in height and area by 25 percent of the existing nonconforming sign, or the area and height standard established in Section 10-50.100.060, Permanent Signs, whichever is larger. For example, an existing nonconforming Type A freestanding sign has an area of 120 square feet and a height of 22 feet. The Zoning Code only allows a Type A freestanding sign to have an area of 40 square feet and a height of 10 feet. The new sign, therefore, may be 120 times 25 percent equals 30 square feet; 120 minus 30 equals 90 square feet in area. The height of the new sign would be determined as 22 times 25 percent equals 5.5 feet; 22 minus 5.5 equals 16.5 feet high. The new replacement sign shall only be located in the same place as the former nonconforming sign. Any nonconforming sign modified in accordance with the provisions of this subsection shall still be considered a nonconforming sign until full compliance with the area and height standards of Section 10-50.100.060, Permanent Signs, has been achieved.

4.    When an existing nonconforming Type A freestanding sign exists on a property with a street frontage that is 400 linear feet or more in length, a property owner may continue to use such sign subject to the provisions of this section. To encourage the removal of the existing nonconforming sign, a Type B freestanding sign may be permitted that is designed and constructed to the full extent of the area and height standards established in Table 10-50.100.060.A, Standards for Permanent Signs by Use, provided the existing nonconforming Type A sign is either removed or redesigned in compliance with the standards for a Type A sign.

5.    Sign faces may be replaced on nonconforming signs.

6.    Illegal signs shall not be considered as nonconforming signs.

(Ord. 2014-27, Amended, 11/18/2014 (Res. 2014-35))

10-20.60.120 Effect of Conditional Use Permit Requirements

A.    Absence of Conditional Use Permit. A use lawfully existing without the approval of a conditional use permit that would be required by this Zoning Code shall be deemed conforming only to the extent of its previous lawful use (e.g., maintaining the same site area boundaries, or hours of operation). Any change in use would require the approval of a conditional use permit, if applicable.

B.    Previous Conditional Use Permit in Effect. A use that was authorized by a conditional use permit but is not allowed by this Zoning Code in its current location may continue, but only in compliance with the conditions of approval of the original conditional use permit.