Nonconformances
Within the waterfront districts established herein, or by amendments which may later be adopted, there may exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this article was passed or amended, but which would be prohibited, regulated or restricted under the terms of this article or future amendments. It is the intent of this article to permit these non-conformities to continue until they are removed, but not to encourage their survival. Nonconforming uses are declared by this article to be incompatible with permitted uses in the districts involved. It is further the intent of this article that nonconformities shall not be enlarged, expanded or extended, reconstructed, or used as grounds for adding other structures or uses prohibited elsewhere in the same district.
(1) All work performed on a nonconforming structure shall be pursuant to a building permit, meet all the requirements of this article and all city codes, and conform to any other health or safety regulations of laws imposed by local, county, state, regional or federal agencies in effect at the time of the work and shall not expand any nonconformity.
(2) Ordinary maintenance and minor repair of nonconforming structures is permitted if the aggregate cost of the work done in any period of 12 consecutive months does not exceed 25 percent of the replacement value of the structure, as determined by the building inspector and if the size of the structure or the number of building units in not increased.
(3) A damaged nonconforming structure, restoration of which will cost 50 percent or less of its full replacement cost immediately prior to such damage, as determined by the building inspector, may be restored to its previous nonconforming state but must otherwise comply with all provisions of this article. A damaged nonconforming structure, restoration of which costs more than 50 percent of its full replacement cost, shall not be restored.
(4) Repairs and alterations may be made to nonconforming residential structures, including multi-family structures, without replacement cost limitations, if located in a district permitting residential dwellings and if the requirements of subsection (1) above are met, including the limitation therein that the repairs and alterations shall not expand the nonconformity. New construction on property with a nonconforming residential structure shall comply with the current applicable standards of this article.
(5) Repairs, interior modifications, and alterations to nonconforming nonresidential structures may be made only if none of the structural alterations prolong the life of the supporting members of the structure, including without limitation bearing walls, columns, beams or girders. Structural elements may be modified or repaired only if the building inspector determines that such modification or repair is immediately necessary to protect the public health, safety and welfare of occupants of the nonconforming structures or adjacent property, and the cost of all repairs or alterations does not exceed 50 percent of the replacement cost of the nonconforming structure immediately before such repairs or alterations, as determined by the building inspector. New construction on property with a nonconforming nonresidential structure shall comply with the current applicable standards of this article. No expansion, intensification, or modification of a nonconforming nonresidential structure shall be permitted without the permission of the executive director and/or commission, as appropriate. Modifications may be made to a nonconforming nonresidential use for the addition of new employees, provided that alterations are limited to the interior of the structure and are in compliance with subsection 19-477, and that sufficient parking can be provided on the site and in compliance with the parking and circulation standards contained herein. Such modifications shall be reviewed by the executive director through a preapplication consultation prior to issuance of any permits, and may be subject to review by the commission in accordance with section 19-477.
(6) If the use of a nonconforming structure is discontinued, the structure shall lose its nonconforming structure status, and shall be removed or altered to conform to the provisions of this article. Such removal or alteration to conform to the provisions of this article shall occur within 12 months of the date that loss of nonconforming structure status is determined or within such other date that the commission decides pursuant to public hearing outlined in section 19-477. Failure to remove or alter the structure beyond that period without written approval of the executive director on behalf of the commission due to unusual circumstances constitutes a violation of this article and a public nuisance. A use of a nonconforming structure shall be considered abandoned or discontinued whenever any of the following apply:
a. The use of a nonconforming structure is discontinued for a period of six or more calendar months.
b. The actual removal of characteristic furnishings, equipment, structures, machinery, or other components of the use occurs during the 12 month period.
c. No business receipts or records are available for the 12 month period.
d. Utility bills indicate that no use has occurred during the 12-month period.
(7) The change of ownership, tenancy, or management of a nonconforming use shall not affect its nonconforming status, but only if the use, extent, and intensity of use does not change.
(8) A nonconforming residential use in a nonconforming residential structure may continue to be used as a residence until such time as the building is amortized, condemned, removed, converted to a conforming use, or destroyed such that restoration would cost more than 50 percent of its full replacement value before it was damaged.
(9) If a nonconforming use is discontinued for a period of six or more calendar months, the use shall lose its nonconforming status, and all rights to reestablish or continue the nonconforming use shall terminate regardless of any reservation of an intent not to abandon or of an intent to resume active operations. Abandonment or discontinuance of use shall be deemed to have occurred whenever any of the following apply:
a. The nonconforming use is discontinued to a period of six or more consecutive calendar months.
b. A nonconforming use is replaced by a conforming use.
c. The actual removal of characteristic furnishings, equipment, structures, machinery, or other components of the use occurs during the six-month period.
d. No business receipts or records are available for the six-month period.
e. Utility bills indicate that no use has occurred during the six-month period.
(10) Replacement of a nonconforming use with another nonconforming use is prohibited.
(11) Expansion or intensification of a nonconforming use is prohibited without the permission of the executive director and/or the commission, as appropriate. Modifications may be made to a nonconforming nonresidential use for the addition of new employees, provided that alterations are limited to the interior of the structure and are in compliance with subsection 19-477, and that sufficient parking can be provided on the site and in compliance with the parking and circulation standards contained herein. Such modifications shall be reviewed by the executive director through a preapplication consultation prior to issuance of any permits, and may be subject to review by the commission in accordance with section 19-477.
(12) When any nonconforming structure or use is no longer permitted pursuant to the provisions of this article (loss of nonconforming status, or at the end of an amortization period (as outlined below) determined by the commission), no building permit or certificate of occupancy shall thereafter be issued for further continuance, alteration or expansion of the use or structure. Any building permit or certificate of occupancy issued in error shall not be construed as allowing the continuation of the structure or use.
(13) The commission may adopt amortization schedules for nonconforming structures, uses of land and structures, and characteristics of use within the waterfront district, pursuant to the procedures outlined for public hearings as provided in section 19-477. At the public hearing, the commission shall hear a report by the executive director on the issue and shall determine if the use or structure should be amortized and over what period. The nonconforming structure or use shall be discontinued within the amortization period determined by the commission. In determining a reasonable amortization period for a nonconforming use or structure, the commission shall consider the following factors:
a. The amount of original investment in or original cost of the structure or use.
b. The present actual or depreciated value of the structure or use.
c. The remaining time period, if any, to amortize the costs of the structure or facilities associated with the use under the provisions of the Internal Revenue Code.
d. The salvage value of the structure or facilities associated with the use.
e. The remaining useful life of the structure or facilities associated with the use.
f. The remaining term of any lease for the property on which the structure or use is located.
g. The harm to the public that will result if the structure or use remains beyond the time period recommended by the executive director for amortizing the structure or use.
The executive director shall provide estimates of all costs and valuations required by this section. The owner or operator of a nonconforming structure or use shall have the burden of proving that the amortization period recommended by the executive director is unreasonable.
(Ch. 317, § I, 3-2-04)