§ 88-610-04. NONCONFORMING USES

88-610-04-A. DESCRIPTION

A nonconforming use is a land use that was lawfully established in accordance with all zoning regulations in effect at the time of its establishment but that is no longer allowed by the use regulations of the zoning district in which the use is now located. Lawfully established uses that do not comply with separation distance requirements are also deemed nonconforming uses.

88-610-04-B. CHANGE OF USE

1.

A nonconforming use may be changed to any other use that is allowed in the subject zoning district. Once changed to a conforming use, a nonconforming use may not be re-established.

2.

The city planning and development director is authorized to approve a use substitution allowing one nonconforming use to be changed to another use that is classified in the same use category (see 88-805) or to another functionally similar use. In order to approve a use substitution, the city planning and development director must determine that the substituted use will create no greater adverse impacts on the surrounding area than the previous use. In making such a determination, the city planning and development director must consider all of the following factors:

(a)

hours of operation,

(b)

vehicular traffic;

(c)

the number of employees and other people expected to be attracted to the use; and

(d)

other factors likely to affect the neighborhood in which it is located.

3.

All nonconforming signage for the existing use must be removed and all signage for the proposed use must conform to the underlying district in which it is located unless otherwise approved by the board of zoning adjustment.

4.

A nonconforming use of open land may not be changed to any other nonconforming use of open land.

88-610-04-C. EXPANSION OF USE

1.

Except as otherwise expressly stated, the city planning and development director is authorized to approve expansion of a nonconforming use into another part of the same building or accessory building existing at such time the non-conforming use was established through the administrative adjustment process, provided that the city planning and development director determines that such expansion:

a.

will not result in a violation of off-street parking or loading requirements;

b.

will not violate any applicable lot or building standards;

c.

will not result in greater adverse impacts on the surrounding area; and

d.

is not expressly prohibited by 88-610-04-C-2.

2.

The following nonconforming uses may not be expanded:

a.

a nonconforming use of open land; or

b.

a nonconforming industrial or manufacturing use in an R district.

88-610-04-D. LOSS OF NONCONFORMING STATUS

1.

DISCONTINUANCE

Once a nonconforming use is discontinued, its nonconforming status is lost and any subsequent use of the property must comply with the regulations of the zoning district in which it is located. When a nonconforming use of open land ceases for a period of 90 consecutive days or more. it will be considered discontinued. Other nonconforming uses will be considered discontinued when any of the following occurs:

a.

the intent of the owner to discontinue all uses in the structure is apparent;

b.

the building or structure ceases to be used in a nonconforming manner for a period of 12 consecutive months.

c.

no use has been maintained in the structure for a period of 12 months or more;

d.

a demolition permit has been applied for;

e.

all equipment and furnishings have been removed from the premises and have not been replaced by similar or other equipment and furnishings within 180 days;

f.

the use was required to obtain a certificate of legal nonconformance and did not obtain such certificate within the timeframe required; or

g.

the property has been used for illegal activities or the use has failed to comply with city ordinances or with state or federal law.

h.

The vacancy of a portion of the units in a multi-unit building will not be deemed a discontinuance of the nonconforming use of the building.

2.

NOTICE OF DISCONTINUANCE

Notice of discontinuance of certificates of legal nonconformance must be provided as follows:

a.

Upon receipt of evidence that a legal nonconformance that has a certificate of legal nonconformance has been discontinued, the city planning and development director must promptly notify the owner that an order will be issued revoking the certificate of legal nonconformance, absent proof that such nonconformance has not been discontinued.

b.

The owner of the legal nonconformance will be given a period of 30 days from the date of receipt of notice from the city planning and development director to submit evidence that the legal nonconformance was not discontinued.

c.

At the expiration of 30 days or as soon thereafter as possible, the city planning and development director must issue an order revoking or refusing to revoke the certificate of legal nonconformance. The decision of the city planning and development director is final unless appealed to the board of zoning adjustment within 15 days of the order of the city planning and development director.

d.

This notice procedure is not applicable to a nonconformity which does not have a certificate of legal nonconformance.

3.

CHANGE TO A CONFORMING USE

If a nonconforming use is changed to a conforming use, no matter how short the period of time, all nonconforming use rights are lost and reestablishment of the nonconforming use is prohibited.

4.

INTENTIONAL DESTRUCTION

When a structure containing a nonconforming use is intentionally damaged by causes within the control of the owner, re-establishment of the nonconforming use is prohibited.

5.

ACCIDENTAL DAMAGE OR DESTRUCTION

a.

When more than 50% of the volume of a structure containing a nonconforming use is destroyed or damaged the use may not be restored except in conformance with the regulations of the zoning district in which it is located.

b.

When 50% or less of the volume of a structure containing a nonconforming use is accidentally (by causes that are not within the control of the property owner or tenant) destroyed or damaged the use may be restored or repaired provided that no new nonconformities are created and that the existing nonconforming situation is not increased. A building permit to reconstruct a destroyed or damaged structure must be obtained within 6 months of the date of occurrence of such damage, and once issued, construction must be diligently pursued or the nonconformity will be considered to be discontinued.

c.

The determination of the extent of damage or destruction rests with the city planning and development director, based on evidence provided by the property owner.

d.

No permit for restoration may be issued by the city planning and development director unless a certificate of legal nonconformance is presented with the request for a permit.

e.

Notwithstanding the foregoing, if a nonconforming use was lawfully established in accordance with a development plan approved by the City Council, the use may be rebuilt in accordance with said development plan.

6.

REUSE OF HISTORIC COMMERCIAL STRUCTURE

To encourage the reuse of designated landmarks, the board of zoning adjustment is authorized to approve continuance or re-establishment of the original use of a structure that is on the National Register of Historic Places or which has been locally designated as a landmark regardless of the period of discontinuance or vacancy or that has received the federal rehabilitation tax credit for buildings other than certified historic structures built before 1936 in accordance with Public Law 101-508; 26 U.S.C. 47 of the Federal Code as adopted on November 5, 1990. In approving such continuance or re-establishment, the board of zoning adjustment must follow the special use procedures of Article 88-525.

7.

REUSE OF OFFICIALLY DESIGNATED HISTORIC LANDMARK (LOCAL OR NATIONAL)

To encourage the reuse of designated landmarks, the board of zoning adjustment is authorized to approve continuance or re-establishment of the original use of a structure and signage that is on the National Register of Historic Places or which has been locally designated as a landmark regardless of the period of discontinuance or vacancy or that has received the federal rehabilitation tax credit for buildings other than certified historic structures built before 1936 in accordance with Public Law 101-508; 26 U.S.C. 47 of the Federal Code as adopted on November 5, 1990. In approving such continuance or re-establishment, the board of zoning adjustment must follow the special use procedures of 88-525.

88-610-04-E. NONCONFORMING ADULT BUSINESS USES

1.

Each of the following will be considered a unique and separate adult business: adult cabaret, adult media store (which will be considered a single use even if it also includes adult books and other printed matter); massage shop, modeling studio, bathhouse, adult motion picture theater and/or sex shop.

2.

An adult media store is a less intensive use than a sex shop. Any nonconforming sex shop use may be converted to a nonconforming adult media store use at any time with written notice provided to the city planning and development director and without any further approvals or actions required by the city. If a nonconforming sex shop use is converted to a nonconforming adult media store use, the nonconforming sex shop use may not be re-established.

3.

Except as provided in 88-610-04-E.2, when a certificate of legal nonconformance establishes a right to operate one or more adult businesses at a particular location, only the business or businesses specifically identified in the certificate of legal nonconformance is allowed and no other adult business are allowed as a nonconforming use at that particular location. The city planning and development director has no authority to authorize a change to a certificate of legal nonconformance for an adult business use except as expressly provided in this article (88-610).

4.

Certificates of legal nonconformance issued for an adult business apply to all nonconforming aspects of the adult business, including the separation requirements expressly established for adult businesses.

5.

Notwithstanding other provisions of this article (88-610), a nonconforming adult business that includes one or more nonconforming motion picture arcade booths for which there is a certificate of legal nonconformance will be allowed to relocate the motion picture arcade booths in conjunction with relocation of the principal business, subject to the following terms:

(a)

the motion picture arcade booths may be relocated only if the relocation involves all adult businesses or all aspects of the adult businesses on the premises that are nonconforming;

(b)

not more than the number of motion picture arcade booths actually shown on the certificate of legal nonconformance or proven by the applicant to be subject to the certificate of legal nonconformance in operation on the date of application for relocation may be relocated;

(c)

the motion picture arcade booths may be relocated only in conjunction with the relocation of all adult businesses or all nonconforming aspects of the adult businesses;

(d)

the location to which the motion picture arcade booths are relocated must conform in all respects to this zoning and development code as to all other aspects of the adult business, including separation and other requirements specifically applicable to the adult business that is relocating;

(e)

the relocated motion picture arcade booths must conform fully with the requirements of section 12-67 of the Code of Ordinances, including the design requirements;

(f)

after such relocation, the motion picture arcade booths will be the subject of a certificate of legal nonconformance as though they had always been at the new location, except that the certificate of legal nonconformance must, on its face, reflect the fact of the relocation and the actual history of the booths involved. Any relocation of an adult business, including motion picture arcade booths, must be approved by the city planning and development director upon receipt of a written request and such other information that the city planning and development director may request. The standards applied to the determination of approval or denial must be the conditions set forth in this subsection. Upon approval of the relocation of the adult business with the motion picture arcade booths, the certificate of legal nonconformance for the previous location will be void.

6.

No building arranged or designed for or devoted to a nonconforming adult business may be extended or enlarged or structurally altered; provided however that alterations to the roofs of structures, including roof pitches, may be approved by the city planning and development director if the alteration does not increase the floor area or usable space of the structure and that establishments with "media rooms," "preview rooms" or other spaces created as exempt from Second Committee Substitute for Ordinance No. 970827, as amended, hereinafter referred to as "Ordinance 970827" as codified at section 12-275 through section 12-283, because they were nominally designed to seat 10 or more people, have until May 1, 1999, to remove the doors from those rooms and to take other actions to bring those spaces into compliance with section 12-67(a)(1), (2) and (3). As an alternative, the establishment may replace those rooms with no more than the number of motion picture arcade booths existing in the same space prior to the passage of Ordinance No. 970827, on July 3, 1997, provided that each and every replacement motion picture arcade booth must fully conform to the requirements of this section, and particularly with section 12-67(a)(1), (2) and (3); any booths created by conversion under this section will be treated as legal nonconforming uses, as though they had existed continuously from the date of passage of Ordinance No. 970827 until passage of Second Committee Substitute for Ordinance No. 981270.

7.

Notwithstanding any other provisions of this article (88-610), an adult cabaret operating under a certificate of legal nonconformance and providing entertainment that does not comply with the provisions of Chapter 10 may convert to an adult cabaret providing entertainment that does comply with Chapter 10. At the time of such conversion, the city planning and development director may issue a new certificate that allows the expansion of the adult cabaret providing entertainment complying with the provision of Chapter 10, to include additional floor area within the confines of the structure of the existing building in which the adult cabaret is located, provided that the applicable off-street parking requirements of this zoning and development code are met, and provided that the converted adult cabaret becomes a less intensive use. Parking facilities must be in the same ownership as the lot to be served unless otherwise permitted under terms approved by the city planning and development director. The city planning and development director may approve a development plan without required on-site parking when the parking provided is consistent with solid planning principles in consideration of anticipated use, mass transit accessibility, and off-site parking availability. The parking provided on the development plan must remain available and will be the basis of a violation if not provided. Any adult cabaret that converts as above may not thereafter convert back to providing entertainment that does not comply with Chapter 10. The converted adult cabaret must comply with the following regarding signage and displays:

(a)

The facility in which such use is located is limited to one wall-mounted sign not to exceed a total of 50 square feet.

(b)

The sign may not flash, blink or move by mechanical means and may not extend above the roof line of the building.

(c)

No merchandise or pictures of products or entertainment on the premises may be displayed in window areas or any area where such merchandise or pictures can be viewed from the sidewalk in front of the building.

(d)

No flashing lights or lighting that leaves the impression of motion or movement is permitted.

(Ord. No. 120783, § 1, 10-4-2012; Ord. No. 130441, § 1, 7-11-2013)