§ 35.11.6. Nonconforming Structures.

35.11.6.1. Compliance for Nonconforming Structures.

A.

The use of a nonconforming structure may be continued subsequent to the effective date of this Subchapter, provided that such continuance is in accordance with the provisions of this Subchapter and all other applicable codes of the City necessary to ensure adequate protection and safety of adjacent property and the users and occupants of such nonconforming structure. However, the right to continue a nonconforming structure shall cease and such use contained therein shall conform to the provisions of this Subchapter under any of the following circumstances:

1.

Whenever the use of a nonconforming structure is discontinued for six (6) months or more all nonconforming rights shall cease, and the structure shall henceforth be in conformance with this Subchapter and all applicable codes of the City. The term "discontinue" shall mean that the property or structure is vacant and no attempt to market the property is observable on the property or from the exterior of any structure, or that the property or structure is vacant and City taxes owned on the property are delinquent. The Board of Adjustment may grant a special exception to this provision only if the owner can show there was a clear intent not to abandon the structure even though it was vacant and the use contained therein may have been discontinued for six (6) months or more. An abandoned nonconforming structure may be occupied, only upon approval of the Board of Adjustment in accordance with the provisions of this Subchapter.

2.

Whenever a nonconforming structure is damaged by natural or accidental causes to the extent of more than fifty (50) percent the right to rebuild and occupy such nonconforming structure shall cease, except upon action of the Board of Adjustment to permit reconstruction and occupancy of such structure. Such action by the Board of Adjustment shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare, character of the area surrounding such structure, and the conservation, preservation and protection of property.

3.

In the event that a nonconforming structure is partially destroyed, where the damage does not exceed fifty (50) percent of the value of the structure on the date of the damage, the structure may be rebuilt upon approval of a Building Permit by the Building Official. The structure must be restored or reconstructed so as to have the same approximate height and floor area that it had immediately prior to the damage or destruction. The property owner has the burden of proof to establish the height and floor area of the structure immediately prior to the damage or destruction. A restoration or reconstruction in violation of this paragraph immediately terminates the right to operate the nonconforming use.

4.

The right to maintain or operate a nonconforming structure may be terminated by the Board of Adjustment in accordance with the provisions of this Subchapter. Any appeal of the termination of nonconforming rights under this Subchapter shall be made to District Court within ten (10) days of receipt of written notice of the termination by the Director.

B.

Nothing contained herein shall be construed to prohibit the strengthening or repair of any part of any nonconforming structure declared unsafe by the Building Official, unless such repairs exceed fifty (50) percent of the replacement cost of the structure. In such case the right to operate, occupy or maintain such structure may be terminated by action of the Board of Adjustment, and such structure shall be demolished.

C.

A structure or building where a nonconforming use is located shall be maintained in accordance with the codes in effect when the building was constructed or as deemed necessary by the Building Official for the general safety and welfare of the occupant and the public.

35.11.6.2. Changing Nonconforming Structures.

A.

A nonconforming structure may be expanded or enlarged up to fifty (50) percent of its size. However, all expansion or enlargement of such structure shall be in compliance with all applicable regulations of the zoning district in which such structure is located.

B.

A nonconforming structure may be expanded or enlarged in excess of fifty (50) percent of its size only upon approval of the Board of Adjustment.

C.

If such expansion or enlargement is approved by action of the Board of Adjustment, all provisions of the district in which such structure is located shall apply to the entire lot or parcel upon which such structure is located, and shall be applicable to the existing structure(s) as well as any new construction on the lot or parcel.

D.

The lawful change of tenant or ownership of a nonconforming use of structure shall not cause the loss of nonconforming rights.