Although it is the intent of this chapter to discourage the
continuation of nonconforming uses and structures, it is recognized
that allowing the continuation of certain nonconformities may be appropriate.
To address these circumstances, the Zoning Ordinance establishes procedures
for the Planning Commission to designate specific nonconforming uses
or structures as "Class A." Such uses or structures will have less
stringent standards for expansion or resumption.
A.
Class A nonconforming uses or structures.
(1)
Effect of Class A designation.
(a)
Class A nonconforming uses may be reestablished if the structure
housing it is damaged or destroyed.
(b)
Class A nonconforming uses may be reestablished when otherwise meeting the criteria in § 7-20.07, Standards for determining abandonment. The Class A nonconforming use may not be reestablished if it is replaced with a conforming use.
(c)
Class A nonconforming uses, structures housing nonconforming
uses and nonconforming structures may be expanded or improved, after
review and approval by the Planning Commission.
(d)
Class A nonconforming structures may be rebuilt if the structure
is damaged or destroyed.
(e)
Rights granted nonconforming uses and structures listed above
are contingent on compliance with any standards imposed by the Planning
Commission as part of the Class A designation, including compliance
with any approved site plan.
(2)
Class A designation process.
(a)
An applicant for Class A designation shall submit a request
in writing to the Planning Department.
(c)
The Planning Commission shall hold a public hearing on the Class
A designation.
(d)
The Planning Commission shall approve, approve with conditions
or deny the request for Class A designation.
(e)
The Planning Commission may impose conditions on an approval.
The condition may include compliance with a site plan of the site.
(3)
Standards for approval of Class A designation. In order to approve
a use for Class A designation, the use or structure must have been
lawful at its inception. In addition, the following criteria shall
be used by the Planning Commission in evaluating a use to determine
if continuation of the use or structure would be appropriate:
(a)
Continuance of the use or structure does not significantly depress
property values of nearby properties.
(b)
Continuance of the use or structure would not be contrary to
the public health, safety or welfare or the spirit of the chapter.
(c)
No useful purpose would be served by strict application of the
provisions of this chapter with which the use or structure does not
conform.
(d)
The property cannot be reasonably used as currently zoned.
(4)
Revocation of Class A designation.
(a)
Revocation of a Class A designation may be initiated by the
Planning Department or the Planning Commission.
(b)
Revocation of Class A designation shall comply with the procedures outlined in § 7-20.02A(2) of this chapter.
(c)
Class A designation may only be revoked if the nonconforming
use or structure violated a condition of approval.
B.
Class B nonconforming uses or structures. All nonconforming uses
or structures, not designated Class A, shall be Class B, nonconforming
uses or structures. Class B nonconforming uses and structures shall
comply with all the provisions of this chapter relative to nonconforming
uses and structures set forth hereinafter.
A.
Single-family dwellings. In any district in which single-family dwellings
are permitted, notwithstanding limitations imposed by other provisions
of this chapter, a single-family dwelling and customary accessory
buildings may be erected on any single lot of record at the effective
date of adoption or amendment of this chapter. This provision shall
apply even though such lot fails to meet the requirements for area
or width, or both, that are generally applicable in the district;
provided that yard dimensions and other requirements not involving
area or width or both, of the lot shall conform to the regulations
for the district in which such lot is located. Yard requirement variances
may be obtained through approval of the Zoning Board of Appeals.
B.
Changes in nonconforming lots. A nonconforming lot may not be modified
in a way that increases its nonconformity.
C.
Contiguous nonconforming lots. Where two or more nonconforming lots
of record are adjacent and under the same ownership as of the date
of this chapter, they shall be considered one parcel and may not be
divided except in compliance with this chapter.
D.
Determining lots of record. The City Assessor shall have the power
to make "Lot of Record" determinations in accordance with the following:
(1)
Upon application of any person claiming to be the owner of the legal or equitable title to a parcel of land which was the subject to a deed or land contract, not recorded in the Office of the Register of Deeds on the effective date of this chapter, the City Assessor is authorized to determine whether an owner is entitled to have the parcel treated as a "Lot of Record" in accordance with § 7-20.03A of this chapter.
(2)
The City Assessor shall allow the parcel to be treated as a
"Lot of Record" when he/she finds by a preponderance of the evidence
that the instrument purporting to transfer title to the parcel of
said owner was executed prior to the effective date of this chapter.
In making his/her determination, the Assessor is authorized to consider
all matters it deems relevant, including but not limited to the tax
roll of the City, the relationship of the parties to the purported
transfer, the degree of formality of the purported document of transfer,
and the testimony of the applicant and his witnesses.
(3)
Such a determination shall have only the effect of equating
such an owner with the owner of a lot of record and shall not relieve
such owner from complying with the other conditions set forth in this
chapter.
Except as provided under the provisions of § 7-20.02, where, at the effective date of adoption or amendment of this chapter, lawful use of land exists that is made no longer permissible under the terms of this chapter as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:
A.
Expansion. No such nonconforming use 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 chapter. Expansion
includes the addition of accessory structures, including signs.
B.
Moving use. No such nonconforming use shall be moved in whole or
in part to any other portion of the lot or parcel occupied by such
use at the effective date of adoption or amendment of this chapter.
C.
Abandonment. A use that the ZBA has determined is abandoned following the standards in § 7-20.07 of this chapter shall not be reestablished and any new use must comply with the Zoning Ordinance.
D.
Change in use. A nonconforming use of land may be changed to another nonconforming use of land use that the ZBA has determined is not more nonconforming than the current use following the standards in § 7-20.08 of this chapter and does not require expansion of the area of land used for the use. A nonconforming use that changes to a conforming use may not revert back to a nonconforming use.
E.
Medical
marihuana nonconforming use.
[Added 2-19-2018]
(1)
No
marihuana facility operating or purporting to operate prior to February
19, 2018, shall be deemed to have been a legally existing use, nor
shall the operation of such marihuana facility be deemed a legal nonconforming
use under this chapter.
(2)
A
property owner shall not have vested rights or nonconforming use rights
that would serve as a basis for failing to comply with this chapter
or any amendment thereto.
(3)
Discontinuation
of a state medical marihuana facility license shall constitute prima
facie evidence that a nonconformity has been discontinued.
F.
Recreational marihuana nonconforming use.
[Added 10-5-2020]
(1)
No marihuana facility operating or purporting to operate prior
to October 5, 2020, shall be deemed to have been a legally existing
use nor shall the operation of such marihuana facility be deemed a
legal nonconforming use under this chapter.
(2)
In accordance with Michigan law and this chapter, a property
owner shall not have vested rights or nonconforming use rights that
would serve as a basis for failing to comply with this chapter or
any amendment thereto.
(3)
Discontinuation of a state license shall constitute prima facie
evidence that a nonconformity has been discontinued.
Except as provided under the provisions of § 7-20.02, where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
A.
STRUCTURE
Definition of structure. For the purpose of this section:
Includes both permanent physical improvements such as buildings
and fences, and other improvements such as driveway, parking spaces
and landscaping.
B.
Expansion or alteration. No nonconforming structure may be enlarged
or altered in a way which increases its nonconformity. An increase
in nonconformity would be a change that increases the bulk of the
structure encroaching on setbacks or exceeding maximum height or lot
coverage requirements. Nonconforming structures may be enlarged or
altered in a way which does not increase its nonconformity. (See Figure
20-1.)
 |
C.
Moving structure. Should such structure be moved for any reason for
any distance whatever, it shall thereafter conform to the regulations
for the district in which it is located after it is removed.
D.
Destruction of structure. Should such structure be destroyed by any
means to an extent of more than 60% of its replacement costs, exclusive
of the foundations, it shall be reconstructed only in conformity with
the provisions of this chapter. This provision does not apply to nonconforming
single-family homes, which may be replaced even if completely destroyed,
provided the new structure does not increase the nonconformity. Construction
to repair or replace a nonconforming structure must commence within
one year of its destruction.
Except as provided under the provisions of § 7-20.02, if a lawful use of a structure, or of structure and land in combination, exists at the effective date of adoption or amendment of this chapter, that would not be permitted in the district under the terms of this chapter, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
A.
Expansion or alteration. No existing structure devoted to a use not
permitted by this chapter in the district in which it is located shall
be enlarged, extended, constructed, reconstructed, moved or structurally
altered except in changing the use of the structure to a use permitted
in the district in which it is located.
B.
Extending use. Any nonconforming use may be extended throughout any
parts of a building which were manifestly arranged or designed for
such use, and which existed at the time of adoption or amendment of
this chapter, but no such use shall be extended to occupy any additional
land outside such building.
C.
Change in use. A nonconforming use of a structure, or structure and land in combination, may be changed to another nonconforming use of land use that the ZBA has determined is not more nonconforming than the current use following the standards in § 7-20.08 of this chapter and does not require expansion of the area of land used for the use. A nonconforming use that changes to a conforming use may not revert back to a nonconforming use.
D.
Abandonment. A use that the ZBA has determined is abandoned following the standards in § 7-20.07 of this chapter shall not be reestablished and any new use must comply with the Zoning Ordinance.
E.
Destruction of structure. Where nonconforming use status applies
to a structure and land in combination, removal or destruction of
the structure to an extent of more than 60% of its replacement costs,
exclusive of the foundations shall eliminate the nonconforming status
of the land. Construction to repair or replace a structure housing
a nonconforming use must commence within one year of its destruction.
If the Planning Department identifies a legal nonconforming use that they believe has been abandoned, they shall submit the property to the ZBA for a determination of abandonment. The ZBA shall hold a public hearing, following notice as outlined in § 7-21.07 of this chapter. The ZBA shall determine whether or not intent to abandon the nonconforming use was demonstrated based on a preponderance of the following factors:
A.
Reports such as from the building inspection or health department
indicating the property is or has not been suitable for occupation.
B.
Disconnection of utilities.
C.
Evidence that the use was relocated to a new site.
D.
Evidence of a "going out of business" sale.
E.
Signs advertising the business has been removed.
F.
The use has been discontinued for one year, except where government
action such as road construction has prevented access to the premises,
or where a clear intent to discontinue has not been demonstrated.
G.
Removal of the equipment or fixtures necessary for the operation
of the nonconforming use.
H.
Request by the property owner for changes in their property tax designation
inconsistent with the nonconforming use.
I.
Other actions by the property owner or lessee that demonstrates an
intent to abandon the nonconforming use.
A property owner may request approval from the ZBA to change a nonconforming use to another nonconforming use. The ZBA shall hold a public hearing following notice as outlined in § 7-21.07 of this chapter. The ZBA shall approve the request if it determines that the proposed use is not more nonconforming than the current use based on the following factors:
A.
On any building devoted in whole or in part to any nonconforming
use, work may be done in any period of one year on ordinary repairs,
or on repair or replacement of nonbearing walls, fixtures, wiring
or plumbing to an extent not exceeding 50% of the assessed value of
the building, provided that the cubic content of the building as it
existed at the time of passage or amendment of this chapter shall
not be increased.
B.
Nothing in this chapter 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.
A use established legally without special land use approval
which now requires SLU approval due to a text change or rezoning is
a nonconforming use until it receives SLU approval. Any existing use
approved as a special exception previously under this chapter shall
be deemed a conforming use.
There may be a change of tenancy, ownership or management of
any existing nonconforming uses of land, of structures or of structures
and land in combination.
In order to accomplish the elimination of nonconforming uses
and structures which constitute a nuisance or are detrimental to the
public health, safety and welfare, the City of Lapeer, pursuant to
Section 208, Public Act 110 of 2006, as amended,[1] may, but is not required to, acquire by purchase, condemnation
or otherwise, private property for the purpose of removal of nonconforming
uses.
[1]
Editor's Note: See MCLA § 125.3208.
