Article 10 / Nonconformities
Sec. 10.1 / General
Except as specified in this Article, any legal use, building, structure or sign existing at the time of enactment of this Code or classification amendment applicable to its use, may be continued even though such use, building, structure or sign may not conform with the provisions of this Code for the district in which it is located; provided, however, that this Article shall not apply to any use, building or structure that was unlawful when established.
10.1.1 / Non-conforming status
The use of land, use of a structure, or a structure itself; including but not limited to substandard parcels, or structures not complying with applicable dimensional standards, shall be deemed to have nonconforming status when each of the following conditions are satisfied:
A. The use or structure does not conform to the regulations prescribed in the district in which such use or structure is located and was in existence and lawfully constructed, located and operating prior to, and at the time of the event that made such use or structure nonconforming.
B. The event that made such use, structure, lot or parcel nonconforming was one of the following: annexation by the City of Prescott, adoption of this Code or a previous Zoning Ordinance, acquisition of land by the City for public purposes, amendment of this Land Development Code, or by Court Order.
C. The nonconforming use or the use occupying the nonconforming structure has been operating since the time that the use or structure first became nonconforming without abandonment, as abandonment is defined in Sec. 10.2.6., Cessation of a Nonconforming Use.
The burden of establishing that a nonconforming use or structure lawfully exists under this Code, in all cases, shall be the owner’s and not that of the City of Prescott.
Sec. 10.2 / Nonconforming Uses
10.2.1 / Continuance and Expansion
An existing use that is not in compliance with this Code or subsequent amendment applicable to the use shall not be enlarged, extended, or substituted unless the use is brought into compliance with this Code. However, reasonable repairs and alterations are permissible in accordance with the provisions of Sec. 10.3.2. A non-conforming use may be extended through the same pre-existing building, provided no structural alteration of the building is proposed or made for the purpose of the extension.
A use existing on the effective date of this Code, or subsequent amendment applicable to its use, which would only be permitted as a conditional use, shall be deemed to have a Conditional Use Permit. Any change or expansion of such use shall require a new Conditional Use Permit pursuant to Sec. 9.3.
A use existing on the effective date of this Code, or subsequent amendment applicable to its use, which would only be permitted as a special use, shall be deemed to have a Special Use Permit. Any change or expansion of such use shall require a new Special Use Permit pursuant to Sec. 9.9.
A. Any nonconforming use may be changed to a conforming use and once such change is made, the use shall not thereafter be changed back to a nonconforming use.
B. Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by securing a Certificate of Occupancy.
10.2.5 / Destruction or Demolition
Any nonconforming structure or a conforming structure containing a nonconforming use (see Sec. 10.3.3) damaged or destroyed by casualty or act of God, may be restored without impairment to any nonconforming status, provided:
A. A building permit for the restoration is obtained within twelve (12) months from the time of the calamity; and completion for occupancy is accomplished within 24 months from the time of the calamity.
B. The size and function of the nonconforming use shall not be expanded.
10.2.6 / Cessation of a Nonconforming Use
A. Whenever a nonconforming use in a nonresidential zone has been discontinued and changed to a conforming use, or whenever a nonconforming use has been discontinued for more than 12 months attributable, at least in part, to the property owner or occupant, a presumption of intent to cease said use shall have been established and the right to continue the former nonconforming use shall no longer exist. Subsequent operation as a nonconforming use shall be unlawful, unless within 30 days following written notice from the City to the property owner of the pending loss of the nonconforming status, the property owner shows the Community Development Director proof that he did not intend to abandon the use.
B. Whenever a nonconforming use in a residential zone has been discontinued and changed to a conforming use, or whenever a nonconforming use has been discontinued for more than 6 months attributable, at least in part, to the property owner or occupant, a presumption of intent to cease said use shall have been established and the right to continue the former nonconforming use shall no longer exist. Subsequent operation as a nonconforming use shall be unlawful, unless within 30 days following written notice from the City to the property owner of the pending loss of the nonconforming status, the property owner shows the Community Development Director proof that he did not intend to abandon the use.
C. Upon determination by the Community Development Director of cessation of a nonconforming use, the property owner shall have 30 calendar days from the date of cessation determination to submit a written appeal to the Board of Adjustment.
Sec. 10.3 / Nonconforming Structures
An existing structure that is not in compliance with this Code or subsequent amendment applicable to the structure shall not be enlarged, extended, or substituted, except in full compliance with this Code.
10.3.2 / Ordinary Repair and Maintenance
Normal maintenance and incidental repair may be performed on a conforming structure that contains a nonconforming use or on a nonconforming structure. This Section shall not be construed to prevent the strengthening or restoration of a nonconforming structure.
10.3.3 / Destruction or Demolition
Any nonconforming structure or a conforming structure containing a nonconforming use, when damaged or destroyed by casualty or act of God, may be restored without impairment to any nonconforming status, provided:
A. A building permit for restoration is obtained within twelve (12) months from the time of the calamity; and completion for occupancy is accomplished within 24 months from the time of the calamity.
B. The size of the nonconforming structure shall not be expanded.
Sec. 10.4 / Nonconforming Lots of Record
10.4.1 / Authority to Utilize for Single-Family Residence
A single-family dwelling and customary accessory buildings may be developed, on a qualified lot of record, that has less area than the minimum required by the subject zone district pursuant to Sec. 7.3, Building Lots. The proposed single-family dwelling shall be located on the lot so that the yard, height, and other dimensional standards of the underlying zoning district can be met, or a Variance is obtained from the Board of Adjustment pursuant to Sec. 9.13, Variances. The dwelling shall be placed on the lot so as to provide a yard on each side of the dwelling.
10.4.2 / Other Uses of Nonconforming Lots: Site Plan Required
In any district in which single-family dwellings are not permitted, a legal nonconforming lot of record, which meets the requirements of Sec. 10.4.1, may be used for any use permitted in the district in which it is located if, but only if, a site plan for such use has been approved in accordance with the provisions of Sec. 9.8, Site Plan Review.
Sec. 10.5 / Nonconforming Signs
A lawfully nonconforming sign may continue except as otherwise provided in or authorized by this Section. A change in the information on the face of an existing nonconforming sign is allowed if the change does not increase the area of the sign face. However, any nonconforming sign shall either be eliminated or made to conform to the requirements of Sec. 6.12, Signs, when any substantial alteration to the sign or structure is performed, other than change of text or sign panels, routine maintenance or repair.
10.5.2 / Alteration, Expansion, Moving
Signs may be temporarily removed for maintenance or sign face change if re-erected within 20 days, provided that no nonconforming sign shall be:
A. Changed or altered in any manner which would increase the degree of its nonconformity;
B. Expanded;
C. Altered by replacement of structural supports; or
D. Moved in whole or in part to any other location where it would remain, or continue to be, nonconforming.
10.5.3 / Cessation of Nonconforming Sign
A. Whenever a nonconforming sign has been discontinued for more than 12 months, a presumption of intent to cease said sign shall have been established and the right to continue the former nonconforming sign shall no longer exist, unless following 30 days following written notice from the City to the property owner of the pending loss of the nonconforming status, the property owner shows the Community Development Director proof that he did not intend to abandon the sign. If the Community Development Director determines that the subject structure lost its nonconforming status, subsequent use as a nonconforming sign shall be unlawful and the sign shall be promptly removed.
B. Upon determination by the Community Development Director of cessation of a nonconforming sign, the property owner shall have 30 calendar days from the date of cessation determination to submit a written appeal to the Board of Adjustment.
10.5.4 / Nonconforming Downtown Business (DTB) District Signs
The list of nonconforming DTB district signs is found in Sec. 4.9.4G, Grandfathered Signs in Downtown Area.
Sec. 10.6 / Elimination of Nonconforming Status
The owner of a nonconforming use, structure or sign may employ the following mechanisms in an attempt to eliminate the nonconformity:
A. Replace the existing use with a conforming use;
B. Rezone to a district where the use is permitted; or
C. Apply for a Conditional Use Permit or Special Use Permit, provided the use is listed as a conditional or special use in the Use Table of Sec. 2.3 for the zoning district applied to the subject property.
10.6.2 / Nonconforming Structures and Signs
A. Modify the structure or sign to conform;
B. Apply for a Variance to allow the structure or sign as built; or
C. Rezone to a district where the structure would conform.