5-128. Nonconforming Uses and Nonconforming Structures.
A. Permissible Nonconforming Uses and Nonconforming Structures. Any nonconforming use and nonconforming structure which was lawful under the zoning regulations in effect at the time of the passage of the ordinance codified in this section shall be allowed to continue, except for nonconforming fences and walls which shall require a variance from the Board.
B. Limitations on Nonconforming Uses. Permissible nonconforming uses are subject to the following limitations:
1. When a nonconforming use has been discontinued for six months or more, it shall not be reestablished except as permitted in subsection C.3 of this section.
2. A permissible nonconforming use, if changed to a conforming use, may not be changed back to a permissible nonconforming use.
C. Limitations on Nonconforming Structures.
1. Replacements to a Nonconforming Structure. Replacements may be made to any part of a nonconforming structure (e.g., windows, doors, roof) even if the structure or the lot upon which it is located does not conform to these zoning regulations. Such replacements to parts of nonconforming structures shall not require a variance from the Board, except for nonconforming fences and walls which shall require a variance from the Board. Notwithstanding anything to the contrary in this section, replacements of nonconforming air conditioning units shall not require a variance from the Board; provided, that any such replacement is substantially the same size and in the same location as the existing nonconforming air conditioning unit.
2. Alterations to a Nonconforming Structure. Alterations may be made to any nonconforming structure; provided, that the alteration conforms to these zoning regulations, even though such structure or the lot upon which such structure is located does not conform to these zoning regulations. Alterations to nonconforming structures that do not increase the building footprint or height of the nonconforming portion of the nonconforming structure shall not require a variance from the Board, except for nonconforming fences and walls which shall require a variance from the Board. No nonconforming structure shall be moved in whole or in part for any distance whatever, to any other location on the same or any other lot, unless the entire structure shall thereafter conform to these zoning regulations after being moved.
3. Completion and Restoration of Nonconforming Structures.
(a) Effect of New Zoning Regulations on Issued Building Permit. Nothing in these zoning regulations shall require any change in the plans, construction or designated use of a nonconforming structure for which a building permit has been issued and construction (to include the use of building materials) has begun on the nonconforming structure.
(b) Restoration of Nonconforming Structure Destroyed Not More Than 50 Percent. Nothing in these zoning regulations shall prevent the restoration within six months of a nonconforming structure destroyed to the extent of not more than 50 percent of its fair market value by fire, explosion, or act of God, or the public enemy; provided, that when such restoration becomes involved in litigation, which was filed in good faith and diligently prosecuted, then the time required for such litigation shall not be counted as a part of the six months allowed for reconstruction, and nothing in these zoning regulations shall be taken to prevent the continued occupancy or use of such nonconforming structure or part thereof which existed at the time of such partial destruction, but any nonconforming structure so damaged more than 50 percent of its fair market value may not be rebuilt, or used unless it is made to conform to all regulations for building in the district in which it is located.
(c) Rebuilding or Restoration When Lot Does Not Conform to Width, Depth and Area Requirements. Nothing contained in these zoning regulations shall prevent the complete rebuilding or restoration of an existing nonconforming structure on a lot which does not conform to the width, depth and area requirements of these zoning regulations, if at the time of passage of the ordinance codified in this section, such nonconforming structure was located on such lot; provided, however, that such rebuilt or restored nonconforming structure shall otherwise comply with these zoning regulations. The provisions of this subsection shall not permit the restoration or rebuilding of an existing nonconforming structure in the event the lot on which such nonconforming structure is to be located did not, at the time of a voluntary transfer of a portion of such lot or as a result of such transfer, meet the minimum width, depth and area requirements of the zoning regulations which were in effect at that time of such transfer, unless such transfer was approved by the Board.
(d) Rebuilding or Restoration When Structure Does Not Conform to 35-Foot Height Limitation. If any nonconforming structure is destroyed by more than 50 percent of its fair market value by fire, explosion or act of God, or the public enemy, nothing contained in these zoning regulations shall prevent the rebuilding or restoration of such nonconforming structure at its height existing immediately prior to such destruction; provided, that:
i. The burden of establishing the height of the nonconforming structure prior to such destruction shall be upon the owner of the property;
ii. No part of the roof of the rebuilt or restored nonconforming structure may be any higher than its height immediately prior to its destruction; and
iii. The rebuilt or restored nonconforming structure shall otherwise comply with these zoning regulations.
(e) Rebuilding or Restoration When Structure Does Not Conform to Maximum Lot Coverage Requirements. If any nonconforming structure is destroyed by more than 50 percent of its fair market value by fire, explosion or act of God, or the public enemy, nothing contained in these zoning regulations shall prevent the rebuilding or restoration of that nonconforming structure using the same building footprint existing immediately prior to the destruction; provided, that:
i. The burden of establishing the location and size of the building footprint of the nonconforming structure prior to the destruction shall be upon the owner of the property;
ii. No part of the building footprint of the rebuilt or restored nonconforming structure may be any larger or at a different location than the building footprint of the nonconforming structure immediately prior to the destruction; and
iii. The rebuilt or restored nonconforming structure shall otherwise comply with these zoning regulations. [Ord. 1617 §§ 1, 2, 06-13-22.]