[Added 11-10-2020 by Ord. No. 20-04[1]]
[1]
Editor's Note: This ordinance also repealed former Art. VIII,
Nonconforming Uses and Structures.
A.
Nonconformities arise from adopting new codes or regulations in areas
that already have some development. Nonconformities in use, structure,
lot, or other site characteristic were legal prior to the adoption
of the new codes or regulations but no longer adhere to the requirements
of the new codes or regulations. Any use, structure, lot or other
site characteristic that was not legal as of the time of its commencement
or creation prior to the adoption of the new codes or regulations
shall not attain nonconforming status and shall not receive protections
afforded thereto under this or any other law or regulation.
B.
It is the intent of this article to permit nonconformities to continue
until they are removed, but not to encourage their survival. Additionally,
it is the intent of this article that nonconformities should not be
enlarged upon or expanded except as permitted herein, nor be used
as grounds for adding other prohibited structures or uses.
As used in this article, the following terms shall have the
meanings indicated:
A lack of activity surrounding a nonconforming use combined
with an intent to give up the right of said nonconforming use. The
necessary elements of "abandonment" of a nonconforming use for purposes
of this article are intent and some act or omission on the part of
the owner or holder which clearly manifests his voluntary decision
to give up that nonconforming use. The Board of Zoning Adjustment
shall determine if a nonconforming use has been abandoned or discontinued.
The equivalent of abandonment; for a nonconforming use of
property to be discontinued there must be an intent to abandon accompanied
with voluntary conduct implying abandonment; nonoccupancy of premises
or cessation of use without substitution of a conforming use is not,
by itself, a discontinuance.
Any lot or parcel which was lawfully created prior to the
adoption of this article, but which does not meet the requirements
contained herein relating to width, area, and frontage.
Any design characteristic or site element which lawfully
existed prior to the adoption of this article, but which does not
meet the current requirements contained herein. Examples of site characteristics
include but are not limited to: parking, entrances, site triangle,
landscaping (if required), other requirements of this chapter not
included in the definitions of uses, structures, or lots.
Any structure that was lawfully constructed prior to the
adoption of this article, but which structure does not meet Schedule
of Regulations requirements herein.[1]
The lawful activity being carried out in a building or on
a parcel of land which activity was legally commenced prior to the
adoption of this article and subsequent revisions and amendments.
The lawful use of a building or premises, existing at the time of
the adoption of any zoning regulations affecting it may be continued
although such use does not conform to the provisions of such regulations,
except as otherwise provided herein.
A.
A nonconforming use may continue indefinitely; however, if any nonconforming
use ceases for any reason, or has been discontinued or abandoned,
for 18 consecutive months or more, except where government action
impedes access to the premises, all nonconforming rights shall be
nullified and any subsequent use of land shall be in conformity with
the regulations of this article.
B.
No nonconforming use, except single-family residential uses and cemeteries,
shall be enlarged, increased, or extended to occupy a greater area
of land than was occupied at the effective date or adoption or amendment
of this article. Permitted expanded/extended uses must pose no threat
to the health or safety of the public and steps must be taken to mitigate
any impact that the current or expanded use may have on the welfare
of the public, as required by the Board of Zoning Adjustment.
C.
No nonconforming use shall be moved in whole or in part to any portion
of the lot or parcel other than that occupied by such use at the effective
date of adoption or amendment of this article.
D.
The Board of Zoning Adjustment shall not permit a change from one
nonconforming use to another unless it is determined that the new
nonconforming use falls in the same classification as the prior use,
or it is determined to be more restrictive than the existing nonconforming
use, subject to KRS 100.253.
E.
Sale of a property containing a nonconforming use shall have no effect
on the nonconforming status.
Nonconforming structures may remain subject to the following
regulations:
A.
Any structure which is deemed to be nonconforming by virtue of its
position on the property may be altered or enlarged if granted a variance
by the Board of Zoning Adjustment, and provided that such alterations
or enlargements conform to the yard lines of the existing structure.
A nonconforming residential structure on a residentially zoned lot
of less than 50 feet in width at the time of the adoption of this
article may be enlarged provided that the structure conforms with
side yard line of the existing nonconforming structure and adheres
to all other yard requirements of the applicable residential district.
No such structure shall be enlarged by more than 25% of its original
size at the time of the enactment of this article. All enlargements
and/or alterations must comply with all setback requirements and other
provisions of this Code of Ordinances. Nothing in this section shall
prohibit the restoration of a structure declared unsafe by the Building
Inspector or other delegated authority to a safe condition.
B.
No nonconforming structure may be enlarged, moved, or structurally
altered in a way which increases its nonconformity, but any structure
or portion thereof may be altered to decrease is nonconformity. Voluntary
demolition of a nonconforming structure nullifies its nonconforming
rights. Should a nonconforming structure or nonconforming portion
of a structure be voluntarily destroyed, moved, or removed to an extend
of 55% or more of its replacement cost at the time of destruction
(exclusive of foundations), it shall not be repaired or reconstructed
except in conformity with the provisions of this article.
C.
When a nonconforming structure is involuntarily destroyed or removed,
it shall retain its nonconforming rights for a period of 18 months.
Failure to reestablish the structure within 18 months nullifies the
nonconforming rights. A one-time extension, no longer than six months,
may be granted by the Board of Zoning Adjustment if it can be proven
that extenuating circumstances have occurred, preventing reestablishment
of nonconforming rights within the standard eighteen-month time period.
"Reestablish," for the purposes of this section, shall mean that necessary
permits and approvals have been obtained or have been applied for
and that binding contracts for the construction of the principal structure
have been let; in the absence of contracts, the principal structure
must be under construction to a substantial degree.
D.
Proposed structures for which building permits have been issued prior
to their designation as nonconforming by the adoption or amendment
of this chapter may be completed and used as originally intended,
provided they are completed and in use 12 months after the date on
which the building permit was issued.
E.
Said structures may be enlarged or expanded if granted a variance
by the Board of Zoning Adjustment, and provided that the nonconformity
of the existing structure is located in a nonresidential zone and
the proposed enlargement or expansion does not deviate more than 10%
from the requirements of Section XXV (Schedule of Regulations) contained
herein.
F.
On any nonconforming structure or portion of a structure containing
a nonconforming use, any change that does not require a building permit
is considered routine maintenance and shall not affect the nonconforming
status.
G.
If a nonconforming structure or portion of a structure containing
a nonconforming use becomes physically unsafe or unlawful due to lack
of repairs and maintenance, and is declared by any building official
to be unsafe or unlawful by reason of physical condition, it shall
not thereafter be restored, repaired, or rebuilt except in conformity
with the regulations of the district in which it is located.
H.
A nonconforming structure may be altered to the extent necessary
to comply with a lawful order of government officials.
I.
Existing nonconforming structures located in a special flood hazard
area shall not be expanded but may be otherwise modified, altered,
or repaired, provided such measures incorporate floodproofing of the
structure in accordance with FEMA standards.
J.
If proposed structures cannot comply with the abovementioned requirements,
an application may be submitted before the Board of Adjustment for
a variance from the terms of the Zoning Ordinance as per the terms
of § 5.01.
A.
At the time of the adoption of this article, there exists substandard
lots of record, which do not include sufficient land or road frontage
(not including zero road frontage lots or properties) to conform to
the minimum lot size or road frontage requirements of the zone(s)
in which they are located. Such lots, not including zero road frontage
lots or properties, may be used as a building site (as defined in
§ 2.01 herein), and the Codes Administrator is authorized
to issue a permit for the use of the property which conforms to the
zoning requirements for the district in which the lots are located
as set forth in this chapter.
B.
A nonconforming lot may not be further subdivided or consolidated
in whole, or in part, with another parcel in a manner that increases
its nonconformity. It may, however, be altered so as to decrease its
nonconformity. The Planning Commission may approve the subdivision
of a nonconforming lot of record, which has two or more legally constructed
principal structures, into separate parcels, for the purpose of sale
or transfer of the individual residences if the Planning Commission
makes findings that the properties have been used in a separate and
distinct manner with separate utilities and other facilities, so that
the resulting subdivision will not constitute a material change in
the use of the property.
C.
A lot can only be nonconforming in three respects: width, frontage,
and area. A nonconforming structure, use, or site characteristic does
not cause the lot on which it is located to be nonconforming.
A.
Enlarging a nonconforming structure whose nonconformity is that it
encroaches into the required building setback is not expanding the
nonconformity as long as the enlargement does not encroach further
into the required building setback than the existing structure.
B.
Increasing the height of a building in which the nonconformity is
that the height of the building is taller than that allowed by this
article is enlarging the nonconformity, and is not permitted.
C.
A nonconforming use in a structure that is conforming in all respects
does not cause the structure to obtain a nonconforming status and
the structure may be enlarged in the same manner as any other conforming
structure; provided, however, the nonconforming use within the structure
may not be enlarged in such a manner as to increase its nonconformity.
D.
A conforming use in a nonconforming structure does not cause the
use to be nonconforming.
E.
A lot in which the nonconformity is width as contained in Article XXV herein may be altered in any way that does not reduce the width or cause the lot to be nonconforming in any other respect.
F.
A lot or property which has no frontage on a publicly maintained
road may be altered in any way, including making it smaller or larger;
said alteration does not create an additional nonconformity, provided
that the only nonconformity is that the lot has no frontage on a publicly
maintained road. It is not possible to enlarge this nonconformity.
Such lot or parcel so enlarged or reduced, however, is not eligible
for new residential construction permits, except in the case of an
approved planned unit development.
