Chapter 18.90
NONCONFORMING USES AND NONCONFORMING BUILDINGS
Sections:
18.90.020 Incompatibility of nonconforming uses.
18.90.030 Avoidance of undue hardship.
18.90.040 Nonconforming lots of record.
18.90.050 Nonconforming uses of land and structures.
18.90.060 Nonconforming landscaping.
18.90.070 Nonconforming signs.
18.90.080 Repairs and maintenance.
18.90.090 Changing the use of a nonconforming use.
18.90.010 Purpose.
(A) The purpose of this chapter is to describe nonconforming uses and nonconforming buildings and the conditions that apply to their termination and removal, additions and enlargements, repairs and maintenance, restoration and repair after damage or destruction, and to their continuation of use.
(B) Within the districts established by this title or by amendments which may later be adopted, there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this title was passed or amended, which would be prohibited, regulated, or restricted under the terms of this title or future amendments. It is the intent to permit these nonconformities to continue until they are removed. It is further the intent of this chapter that nonconformities, except as otherwise noted or required by law, shall not be made more nonconforming, nor be used as the grounds for adding other structures or uses prohibited elsewhere in the district. [Ord. 1659 § 1, 2017].
18.90.020 Incompatibility of nonconforming uses.
Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the districts involved. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land in combination, shall not be extended or enlarged after the passage of the ordinance codified in this title if said extension or enlargement makes the nonconforming building or use more nonconforming. In addition, no additional signs intended to be seen from off the premises or additional uses of a nature which would be prohibited generally in the district involved shall be permitted. [Ord. 1659 § 1, 2017].
18.90.030 Avoidance of undue hardship.
(A) To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of a building on which the actual and physical construction was lawfully begun prior to the enactment of this chapter and upon which actual physical building construction has been carried on diligently. “Actual physical construction” is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation, demolition, or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction; provided, that the work shall be carried on diligently.
(B) Any conforming structure or lot that has been made a nonconforming structure or lot by a government taking or by grant of right-of-way shall be considered conforming within the context of this title. [Ord. 1659 § 1, 2017].
18.90.040 Nonconforming lots of record.
(A) Single Nonconforming Lots of Record. In any district in which single-family dwellings are permitted, a single-family dwelling may be constructed on a nonconforming lot of record, notwithstanding limitations imposed by other provisions of this title. Such lot must be in separate ownership and not be of continuous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable within the district; provided, that yard dimensions and requirements other than those applying to area or width, or both, of the lot shall conform to the regulations of the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the board of zoning appeals.
(B) Nonconforming Lots of Record in Combination. If two or more lots or combinations of lots and portions of lots with contiguous frontage in single ownership are of record at the time of enactment of this title or amendments thereto, and if all or parts of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purpose of this chapter, and no portion of such parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this title, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this title. [Ord. 1659 § 1, 2017].
18.90.050 Nonconforming uses of land and structures.
(A) Nonconforming Uses of Land. Where, at the time of adoption of the ordinance codified in this title, lawful uses of land exist which would not be permitted by the regulations imposed by this title, the uses may be continued so long as they remain otherwise lawful, provided:
(1) No such nonconforming uses shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this title, except as may be required by law.
(2) No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such uses at the effective date of adoption or amendment of this title, except as may be required by law.
(3) If any such nonconforming uses of land are discontinued or abandoned for more than one year (except when government action impedes access to the premises), any subsequent use of such land shall conform to the regulations specified by this title for the district in which such land is located.
(4) No additional structure which does not conform to the requirements of this title shall be erected in connection with such nonconforming use of land.
(B) Nonconforming Structures. Where a lawful structure exists at the effective date of adoption or amendment of this title that could not now be built under the terms of this title by reasons of restrictions on area, lot coverage, height, yards, its location on the lot, bulk, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
(1) No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, except as required by law, but any structure may be altered to decrease its nonconformity.
(2) Should any nonconforming structure or nonconforming portion of a structure be destroyed by any means to the extent that the destruction is valued at 50 percent of the fair market value of the building, as valued immediately prior to the destructive event, it shall not be reconstructed except in conformity with the provisions of this title.
(3) Should such structure be moved for any reason for any distance whatever, it shall therefore conform to the regulations for the district in which it is located after it is moved.
(C) Nonconforming Uses of Structures or of Structures and Land in Combination. If a lawful use involving individual structures, or if a structure and land in combination, exists at the effective date of adoption or amendment of this title that would not now be allowed in the district under the terms of this title, this lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
(1) No existing structure devoted to a use not permitted by this title in the district in which it is located shall be enlarged or extended. Any such existing nonconforming structure may be repaired, reconstructed or structurally altered without enlargement or extension; provided, that such repair, reconstruction or alteration shall comply with all other regulations of the district in which it is located.
(2) A nonconforming use may be extended throughout any part of the building which was manifestly arranged or designed for such use at the time of adoption or amendment of this title, but no such use shall be extended to occupy any land outside such building, except as required by law.
(3) Any structure, or structure and land in combination, in or on which a nonconforming use is substituted by a conforming use, shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed.
(4) When a nonconforming use of a structure, or of a structure and land in combination, is discontinued or abandoned for more than one year (except when government action impedes access to the premises), the structures, or structures and land in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located.
(5) Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.
(D) Existing Parking and Loading Facilities. Existing lots with off-street parking facilities shall be permitted to reduce the number of parking spaces located on the same lot; provided, that such reduction does not conflict with the provisions of this title. However, existing lots with fewer than the required spaces on the effective date of the ordinance codified in this title shall not be required to increase the number of off-street parking spaces unless a substantial modification is made to any building on the lot. [Ord. 1659 § 1, 2017; Ord. 1668 § 1, 2018].
18.90.060 Nonconforming landscaping.
(A) Any change in use, reestablishment of an abandoned conforming use, or renovation of an existing building, lot, or in combination of a conforming use shall meet the landscaping requirements of Chapter 18.75 HMC.
(B) Any legal nonconforming use shall be brought into conformance with the applicable provisions of Chapter 18.75 HMC prior to the erection or placement of any buildings or other improvements on the lot.
(C) Any expansion, enlargement, or relocation of an existing conforming use, or addition to any building, may not increase the degree of nonconformity regarding the required landscaping or buffering.
(D) Residential lots with nonconforming landscaping shall become compliant whenever improvements involving at least 50 percent of the value of the property are undertaken.
(E) Nonresidential lots with nonconforming landscaping shall become compliant whenever one of the following improvements are undertaken:
(1) Whenever the proposed improvements involve 25 percent or more of the value of the building(s) or property, front yard landscaping shall meet the provisions of Chapter 18.75 HMC.
(2) Whenever the proposed improvements involve 50 percent or more of the value of the building(s) or property, full compliance with the provisions of Chapter 18.75 HMC shall be required. In addition, a landscape plan, prepared by a landscape architect registered in Indiana and meeting the requirements set forth in Chapter 18.75 HMC, shall be provided.
(F) If full compliance with Chapter 18.75 HMC cannot be achieved due to lack of adequate planting area, all yard areas must be landscaped to the maximum practicable density with a priority given to shade tree installation and front yard landscaping. The plan commission may allow an alternative compliance plan as provided in HMC 18.75.050, with the owner providing sufficient justifications for seeking alternative compliance.
(G) Tree Replacement. Loss of trees, shrubs, and other vegetation shall make an improved site noncompliant with the provisions of Chapter 18.75 HMC. Where existing trees, shrubs, or other vegetation have fallen or are removed because of nature, old age, or human actions, said vegetation shall be replaced with the same species or plant material recommended by this title, and with approximately same age materials where practical. [Ord. 1659 § 1, 2017].
18.90.070 Nonconforming signs.
(A) Any sign that does not comply with the regulations of this title at the time of adoption shall be allowed as a nonconforming sign, and shall be allowed to continue to operate, subject to the provisions of this section, as well as the maintenance standards in HMC 18.85.060.
(B) Signs that have been deemed to have significant historical value, as determined by the town, shall not be considered nonconforming.
(C) A nonconforming sign shall not be altered, modified, or reconstructed except for the following:
(1) When such alteration, modification or reconstruction would bring such sign into conformity with these regulations.
(2) When the existing use has new ownership which results in a change in the name or logo of the use or business on the property, and such change complies with subsection (C)(4) of this section.
(3) When the space is reoccupied by a permitted use and the new occupant requires no external building or site renovation, and such change complies with subsection (C)(4) of this section.
(4) Any alteration, modification, or reconstruction permitted in this section shall be limited to the replacement of a sign panel, replacing individual letters and logos within the same area, or repainting a sign face, and does not permit changes to the structure, size, framing, erection, or relocation of the sign.
(D) Nonconforming signs shall be removed after 10 years of the sign having been caused to become nonconforming. Use(s) advertised on an abandoned nonconforming sign may continue, or be reestablished as permitted, but use of such sign shall cease.
(E) A legal nonconforming sign shall be brought into compliance with Chapter 18.85 HMC with any application for renovation or replacement including change of height, size, face area, intensity of illumination or light emission or display, or in connection with demolition of existing and construction of a replacement sign.
(F) A legal nonconforming sign may not be reestablished under any of the following conditions:
(1) The building or lot where the sign is displayed has been vacant for six continuous months or more.
(2) The sign is not kept in good repair and in a safe condition and the state of disrepair or unsafe condition continues for six months.
(3) If the sign has displayed no message for six continuous months or more.
(4) The sign is relocated.
(5) The sign permit or variance, special exception, etc. under which the sign, the structure, or the use was allowed or permitted expires.
(G) A legal nonconforming sign that is damaged or destroyed, by any means, to the extent of more than 50 percent of the value of replacement of such structure new, but not the commercial value of the sign, shall not be restored or reconstructed unless the use of such structure shall thereafter conform to the provisions of Chapter 18.85 HMC.
(H) Normal maintenance and incidental repair or replacement, and installation of fixtures, wiring or lighting, may be performed on any nonconforming sign, provided the cost of such actions does not exceed 50 percent of the value of the replacement of the sign structure in one calendar year. This paragraph shall not be interpreted to authorize an unlawful alteration, enlargement, extension, increase in intensity, or move of a nonconforming sign.
(I) Advertising copy, including letters, symbols, or other matter on the sign, may be changed, including the exchange of display faces that are designed to be interchangeable to facilitate the display of advertising copy; provided, however, display faces that are designed to be permanently attached to the supporting sign structure may be replaced only with display faces composed of like materials, e.g., a plywood display face may be replaced only with a plywood display face.
(J) Any legal nonconforming sign located on a lot within an overlay district, described in Chapter 18.55 HMC, shall be brought into conformance with the applicable provisions of this chapter prior to the erection or placement of any other sign on that lot. All such new signs shall meet the provisions of the overlay district in addition to the sign provisions applicable to commercial zoning districts.
(K) Nothing in this title shall relieve the owner or user of a legal nonconforming sign or owner of the property on which the legal nonconforming sign is located from the provisions of this title regarding safety, maintenance, or repair of a sign. [Ord. 1659 § 1, 2017].
18.90.080 Repairs and maintenance.
On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not to exceed 10 percent of the current replacement cost of the nonconforming structure and market value of real estate; provided, that the cubic content existing when it became nonconforming shall not be increased. Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official. If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located. [Ord. 1659 § 1, 2017].
18.90.090 Changing the use of a nonconforming use.
A nonconforming use as described in this chapter shall not be changed to another use unless the resultant use meets a use which is first permitted in the current zoning classification. [Ord. 1659 § 1, 2017].