Chapter 21.08
NONCONFORMITIES

Sections:

21.08.010    Nonconformities in general.

21.08.020    Nonconforming uses.

21.08.030    Nonconforming structures.

21.08.040    Nonconforming sites.

21.08.050    Nonconforming lots/parcels.

21.08.010 Nonconformities in general.

(a)    Continuation. A nonconformity may be continued in accordance with the appropriate provisions in GJMC 21.08.020 through 21.08.050.

(b)    Types of Nonconformity. There are several types of nonconformities that may exist, as follows:

(1)    Nonconforming uses (see GJMC 21.08.020).

(2)    Nonconforming structures (see GJMC 21.08.030).

(3)    Nonconforming sites, including parking, landscaping and screening/buffering (see GJMC 21.08.040).

(4)    Nonconforming lots (see GJMC 21.08.050).

(5)    Nonconforming signs (see GJMC 21.06.070).

(c)    Evidence of Status. Evidence of the status of a nonconforming use shall be supplied by the owner of the property upon request of the Director.

(d)    Time Extensions. The Zoning Board of Appeals may permit one extension of up to 12 additional months to the time periods for abandonment, obtaining a building permit or completing construction, provided the applicant can demonstrate circumstances out of his or her control have prevented a good faith attempt to reestablish or rebuild the nonconforming use and/or structure. Such circumstances may include the health of the applicant, court proceedings, failure to reach an insurance settlement, acts of God, or similar hardships.

(e)    Variance. The Zoning Board of Appeals may vary the provisions of GJMC 21.08.020 through 21.08.050. Application and processing shall be in accordance with the provisions of GJMC 21.02.200.

(Ord. 4419, 4-5-10)

21.08.020 Nonconforming uses.

(a)    Continuation. A lawful use made nonconforming by the adoption of this code or other City ordinances may continue only for so long as such use is not abandoned, expanded, increased or changed, except as provided in this section.

(b)    Nonresidential Uses.

(1)    Expansion. In a nonresidential zone, on a parcel of land on which there exists an otherwise lawful nonconforming use, an existing structure and/or an outdoor operations/storage/display area may be expanded provided all other provisions of this code are met. Nonconforming use shall not be expanded in any residential zoning district.

(2)    Change of Use. No use shall be changed to a conforming use until the Director has determined that the requirements of the zone district will be met. The Director may approve a different use, provided such use is deemed by the Director to be less intense than the existing use. Prior to approval, the Director shall determine that traffic generation and parking requirements for the new nonconforming use are less than what was required for the existing use. No change to a more intense nonconforming use is allowed.

(3)    Abandonment. A nonconforming use that has been discontinued for any 12-month period for whatever reason shall be considered to be abandoned and shall not be reestablished. Any use on the property after that time shall conform to all provisions of this code. Evidence of intent to abandon is not required.

(4)    Destruction. A nonconforming nonresidential use that is damaged may be reestablished following approval by the Director in accordance with the following:

(i)    A use may only be reestablished within a conforming structure.

(ii)    All restorative and other work must conform to adopted building codes.

(iii)    A building permit must be issued within two years from the date of the damage.

(iv)    The certificate of occupancy (or other final inspection) must be issued as provided by adopted codes.

(c)    Residential Uses. A “nonconforming residential use” is a structure which contains more dwellings than allowed by the zone or is a dwelling located in a nonresidential zone that does not permit residential uses.

(1)    Expansion. In all zones, a residential use may be expanded by up to 20 percent of the gross floor area as it existed on April 5, 2010, if no additional dwelling units are created and all other provisions of this code are met. Accessory structures for a nonconforming residential use such as a garage or storage shed shall be allowed if the provisions of GJMC 21.04.040 are met. Accessory dwelling units shall not be permitted.

(2)    Abandonment.

(i)    A nonconforming residential use, other than a single-family dwelling, that has not been occupied for a continuous period of 12 months, for whatever reason, shall be considered to be abandoned and shall not be reoccupied except in conformance with all applicable provisions of this code. Evidence of intent to abandon the nonconforming use is not required.

(ii)    A nonconforming single-family dwelling that has not been occupied for a continuous period of 12 months or longer shall not be considered to be abandoned and may be reoccupied at any time provided the structure has not been changed, legally or illegally, to a nonresidential use or multiple-unit residential use.

(iii)    Removal of a nonconforming mobile home or manufactured home, not in a mobile home park, from its foundation or pad for a continuous period of 12 months shall constitute abandonment of the use and placement of a new unit must comply with the provisions of this code. Evidence of intent to abandon the nonconforming mobile home or manufactured home use is not required.

(3)    Destruction. Nonconforming residential uses that are damaged may be reestablished in accordance with the following:

(i)    All portions of the structure being restored are not and were not on or over a property line;

(ii)    The number of dwelling units does not increase;

(iii)    All construction is in compliance with current construction codes, such as the fire and building codes;

(iv)    A building permit is obtained within one year from the date of the damage; and

(v)    The certificate of occupancy (or other final inspection) is issued within two years of the issuance of the building permit.

(Ord. 4497, 2-1-12; Ord. 4419, 4-5-10)

21.08.030 Nonconforming structures.

(a)    Continuation. A lawful structure as of April 5, 2010, that is nonconforming due solely to failure to meet the dimensional standards or performance standards pertaining to a structure and criteria of the underlying zone may be used for any purposes permitted in the zone so long as the use is in conformance with the provisions of this section.

(b)    Maintenance and Restoration. A nonconforming structure may be maintained or restored provided no expansion of the nonconformity occurs. The cost of the maintenance, restoration or remodeling shall be as shown on the approved building permit application and the current fair market value of the existing structure shall be based on improvement value as determined by the Mesa County Assessor or an appraisal performed by a certified general appraiser licensed to do business in the State of Colorado utilizing the “cost” approach. This appraisal shall be performed at the applicant’s expense. The Mesa County Assessor’s appraisal may be used if not more than 12 months old.

(1)    Maintenance, restoration or remodeling projects that cost 25 percent or less of the current fair market value of the structure shall not require any correction to existing nonconforming parking, landscaping or screening/buffering other than what may be required by fire and building codes.

(2)    Maintenance, restoration or remodeling projects that cost more than 25 percent, but less than 75 percent, of the current fair market value of the structure shall require a corresponding percentage increase in compliance with the landscaping requirements of this code until the site achieves 100 percent compliance. For example, if a site has only 20 percent of the required landscaping and the cost of the remodeling is 30 percent of the value of the building, then 30 percent of the required landscaping shall be provided.

(3)    Maintenance, restoration or remodeling projects that cost 76 percent or greater of the current fair market value of the structure shall require 100 percent compliance with the landscaping requirements of this code.

(4)    Maintenance, restoration or remodeling projects that require an increase in landscaping shall have up to 24 months after the issuance of a certificate of occupancy (or other final inspection) to install the required landscaping and related improvements. A development improvements agreement (DIA) with financial security shall be required for the cost of all landscaping materials and improvements, including the irrigation system. See GJMC 21.02.070(m).

(5)    Properties that are physically constrained from complying with these provisions shall comply to the maximum extent practical as determined by the Director using the following criteria:

(i)    Is the general intent of the requirement being met by the applicant, such as landscaping along the site frontage, even if some of it is in the right-of-way?

(ii)    Are there other upgrades, amenities, or public benefits being provided, such as upgrades to building facade, relocating landscaping on site, increasing plant sizes and/or planting density, public art, etc.?

(iii)    Will the proposed deviation result in a safe, efficient condition?

(iv)    What other alternatives have been considered that would meet the current standards?

(c)    Expansion. A nonconforming structure may be expanded; provided, that no increase in the structural nonconformity occurs. For example, an addition may be constructed, provided it meets the dimensional requirements for the zone. If the expansion results in an expansion of the nonconforming use, then see GJMC 21.08.020.

(d)    Destruction.

(1)    A nonconforming residential structure which is damaged may be restored within the existing footprint; provided, that:

(i)    All portions of the structure being restored are not on or over a property line;

(ii)    All construction is in compliance with current construction codes, such as fire and building codes;

(iii)    A building permit is obtained within 12 months from the date of the damage;

(iv)    The certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit.

(v)    If damage exceeds 50 percent or more, restoration or improvement shall not be permitted unless the restoration results in a structure and site conforming to all applicable requirements of this code.

(2)    A nonconforming nonresidential structure which is damaged to 50 percent or less of its fair market value, based on a market appraisal performed by a certified appraiser, may be restored within the existing footprint; provided, that:

(i)    All portions of the structure being restored are not on or over a property line;

(ii)    All construction is in compliance with current construction codes, such as fire and building codes;

(iii)    A building permit is obtained within 12 months from the date of the damage;

(iv)    The certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit.

(v)    If damage exceeds 50 percent or more, restoration or improvement shall not be permitted unless the restoration results in a structure and site conforming to all applicable requirements of this code.

(e)    Signs. This section shall not apply to nonconforming signs (see sign regulations, GJMC 21.06.070).

(Ord. 4419, 4-5-10)

21.08.040 Nonconforming sites.

(a)    Continuation. A parcel of land existing as of April 5, 2010, that is nonconforming due solely to failure to meet the parking, landscaping or screening/buffering standards may be used for any purposes permitted in the zone so long as the use is in conformance with the provisions of this section.

(b)    Maintenance and Restoration. A nonconforming site may be maintained or restored provided no expansion of the nonconformity occurs, unless the expansion occurs in conformance with this section.

(c)    Expansion. Additions to structures or additional paving, parking or outdoor storage on nonconforming sites shall require correction of existing nonconforming parking, landscaping and screening/buffering.

(1)    Redevelopment or expansion which results in a 65 percent or greater increase of the gross square footage of the existing structure, outdoor operations/storage/display, paving or parking areas requires the entire property to meet all of the landscaping and screening/buffering requirements of this code. The increase may be to only one of the gross square footage areas or a combination of increases of the gross square footage areas which result in an overall increase of 65 percent or greater. (For example, if the gross square footage area of the structure increases by 50 percent and the outdoor storage gross square footage area increases by 20 percent, then the overall increase is 70 percent and the entire property shall be required to meet all landscaping and screening/buffering requirements of this code.)

(2)    Redevelopment or expansion which would result in less than a 65 percent increase of the gross square footage of the existing structure, outdoor operations/storage/display, paving or parking areas shall require a corresponding percentage increase in compliance for landscaping and screening/buffering requirements of this code until the site achieves 100 percent compliance. (For example, if the gross square footage area of the structure increases by 10 percent and the outdoor storage gross square footage area increases by 15 percent, then the overall increase is 25 percent and the site contains only 50 percent of the required landscaping, 25 percent of the required landscaping for the entire site must be provided, thereby bringing the site to 75 percent of the total required.) Existing landscaping on the site shall be retained or replaced but shall not count toward the required percentage of new landscaping.

(3)    Redevelopment or expansion that necessitates an increase in the number of parking spaces shall be required to provide 50 percent of the required parking spaces for the additional floor area in accordance with this code. The additional parking area shall comply with all associated landscaping and drainage requirements of this code.

(4)    The conversion of nonconforming commercial and/or residential structures and sites to condominiums shall not require that the site be brought into compliance with parking, lighting, and landscaping requirements of this code.

(5)    Properties that are physically constrained from complying with these provisions shall comply to the maximum extent practicable as determined by the Director using the following criteria:

(i)    Is the general intent of the requirement being met by the applicant, such as landscaping along the site frontage, even if some of it is in the right-of-way?

(ii)    Are there other upgrades, amenities, or public benefits being provided, such as upgrades to building facade, relocating landscaping on site, increasing plant sizes and/or planting density, public art, etc.?

(iii)    Will the proposed deviation result in a safe, efficient condition?

(iv)    What other alternatives have been considered that would meet the current standards?

(d)    Change of Use.

(1)    Changes of use that necessitate an increase in the number of parking spaces shall be required to provide the difference between the required parking for the prior use and that required for the proposed use in accordance with this code. Where this calculation results in the addition of less than five spaces, no additional spaces shall be required. Any additional parking area shall comply with all associated landscaping and drainage requirements of this code.

(2)    New outdoor operations/storage/display uses require that the entire lot or parcel meet all requirements of this code.

(e)    Destruction.

(1)    A nonconforming residential structure which is damaged may be restored within the existing footprint; provided, that: all portions of the structure being restored are not and were not on or over a property line; all construction is in compliance with current construction codes, such as the fire and building codes; a building permit is obtained within six months from the date of the damage; and the certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit. If damage exceeds 50 percent or more, restoration or improvement shall not be permitted unless the restoration results in a structure and site conforming to all applicable requirements of this code.

(2)    A nonconforming nonresidential structure which is damaged to 50 percent or less of its fair market value, based on a market appraisal performed by a certified appraiser, may be restored within the existing footprint; provided, that: all portions of the structure being restored are not and were not on or over a property line; all construction is in compliance with current construction codes, such as the fire and building codes; a building permit is obtained within six months from the date of the damage; and the certificate of occupancy (or other final inspection) is issued within one year of the issuance of the building permit. If damage exceeds 50 percent or more, restoration or improvement shall not be permitted unless the restoration results in a structure and site conforming to all applicable requirements of this code.

(Ord. 4419, 4-5-10)

21.08.050 Nonconforming lots/parcels.

A lot or parcel of land with an area less than prescribed in the applicable zone may be used for any purpose permitted in the zone if:

(a)    The owner is able to demonstrate to the satisfaction of the Director that the parcel was lawful at the time it was created; and

(b)    The use meets all other regulations prescribed for the zone prior to occupancy or use.

(Ord. 4419, 4-5-10)