7-12-106. NONCONFORMING USE OF BUILDINGS, STRUCTURES, AND LAND – STANDARD OF REVIEW.
The following provisions govern the establishment, restoration, reconstruction, extension, Alteration, expansion, and substitution of Nonconforming Uses, Buildings, and Structures:
(1) There is no presumption of legal existence of Nonconforming Uses. Individuals or entities asserting the establishment or legal existence of a Nonconforming Use shall have the burden to prove that the Nonconforming Use has been legally established and maintained. Uses, Buildings, or Structures in violation of current City ordinances shall be presumed to be illegal unless a Nonconforming Use, Building, or Structure determination is obtained as set forth in this Chapter.
(2) Applicants for a Nonconforming Use or individuals or entities asserting the existence of a Nonconforming Use, Building, or Structure shall submit an application to the Board of Adjustment including all of the following:
a. The exact nature of the Nonconforming Use, Building, or Structure asserted;
b. The beginning date of the Nonconforming Use, Building, or Structure; and
c. Any and all evidence establishing that the Nonconforming Use, Building, or Structure continually and legally existed from the time referenced in subsection 2(b) above to the date of the application.
i. Evidence establishing the Nonconforming Use, Building, or Structure includes witness testimony, affidavits, correspondence, official permits or licenses, and other evidence proving the establishment and continuance of the Nonconforming Use, Building, or Structure.
ii. No evidence or witnesses not included or listed in the application shall be presented by the Applicant.
(3) The Applicant shall have the burden of proving by clear and convincing evidence that the Nonconforming Use, Building, or Structure legally existed before its current land use designation, has been maintained continuously since the time the land use ordinance governing the land changed, and because of one or more subsequent land use ordinance changes, does not conform to the regulations that now govern the Use of the land.
(4) In order to prove that the Use, Building, or Structure legally existed before its current land use designation, the Applicant must prove by clear and convincing evidence that the Use, Building, or Structure complied with all applicable legal requirements as of the asserted date of establishment, including but not limited to the acquisition of all required permits, business licenses, and other authorizations.
(5) In order to prove that the Use, Building, or Structure has been maintained continuously since the time the land use ordinance governing the land changed, the Applicant must prove by clear and convincing evidence that the Use, Building, or Structure has not been abandoned, that the Use has not paused or terminated for any one year period between the asserted date of commencement and the date of application, and that all legal requirements have been continually met, including but not limited to the acquisition and renewal of all required permits, business licenses, and other authorizations.
(6) A Nonconforming Use is presumed to be abandoned if any of the following have occurred:
a. A majority of the primary Structure associated with the Nonconforming Use has been voluntarily demolished without a prior written agreement with the City regarding an extension of the Nonconforming Use;
b. The Nonconforming Use has been discontinued for a one year period; or
c. The primary Structure associated with the Nonconforming Use remains vacant for a period of one year.
(7) A nonconforming Building or Structure is presumed to be abandoned if any of the following have occurred:
a. A majority of the nonconforming Building or Structure has been voluntarily demolished without a prior written agreement with the City regarding an extension of the Nonconforming Use; or
b. The nonconforming Building or Structure has remained vacant or unused for a period of one year.
(8) The reconstruction or restoration of a nonconforming Building or Structure or continuation of a Nonconforming Use shall be prohibited if:
a. The Structure is allowed to deteriorate to a condition that the Structure is rendered uninhabitable and is not repaired or restored within six months after written notice to the property Owner that the Structure is uninhabitable and that the noncomplying Structure or Nonconforming Use will be lost if the Structure is not repaired or restored within six months; or
b. The property Owner has voluntarily demolished a majority of the noncomplying Structure or the Building that houses the Nonconforming Use.
(9) If a Nonconforming Building or Structure is damaged or destroyed by calamity or act of nature, the occupancy or Use of such Building or Structure, or part thereof which existed at the time of damage or destruction, may be continued or resumed if it is restored in accordance with all applicable building codes. Any repair or reconstruction shall be conducted in accordance with all City requirements and Conditional Use requirements, if applicable. Buildings that become nonconforming as to setbacks due to governmental action (such as a road widening) may be fully restored at the original setback.
(10) The Board may permit an enlargement or structural Alteration of a Nonconforming Building or Structure if the Nonconforming Building or Structure has been recognized by the Board or Zoning Administrator in accordance with this Title and if the applicant can prove by clear and convincing evidence the following:
a. The proposed change would not impose any unreasonable or detrimental impact on neighboring properties or Uses;
b. The proposed change is in harmony with the surrounding neighborhood; and
c. The proposed change would be consistent with the intent of the General Plan and this Title.
The Board is authorized to impose any conditions necessary to ensure that the requirements of this subsection (10) pertaining to the proposed change are met.