Within the districts established by the Red Oak Zoning Ordinance or amendments thereto that may later be adopted, there exist lots, structures, and uses of land and structures which were lawful before the Red Oak Zoning Ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of the Red Oak Zoning Ordinance or future amendments. It is the intent of the Red Oak Zoning Ordinance to permit these non-conformities to continue until they are removed, but not to encourage their survival. Such uses are declared by the Red Oak Zoning Ordinance to be incompatible with permitted uses in the districts involved. It is further the intent of the Red Oak Zoning Ordinance that a nonconforming structure or use or yard requirement not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere within the same district.
Existing Building Permits and Projects
To avoid undue hardship, nothing in the Nonconforming Uses Section of the Red Oak Zoning Ordinance is deemed to require a change in the plans, construction, or designated use of any building or land development project for a use which is lawful at the time of the application for which a building permit was applied for prior to the effective date of the Red Oak Zoning Ordinance and the construction is completed before the permit expires. The permit can not be renewed or extended without all other conditions of the Nonconforming Uses Section of the Red Oak Zoning Ordinance having been met.
Size Nonconformity of Lots of Record
In any district in which dwelling units are a permitted use, notwithstanding limitations imposed by other provisions of the Red Oak Zoning Ordinance, a single-family dwelling or commercial building and customary accessory buildings may be erected on any single lot existing on the effective date of the Red Oak Zoning Ordinance or upon the amendment of the Nonconforming Uses Section of the of the Red Oak Zoning Ordinance where zoning under the Red Oak Zoning Ordinance is otherwise proper. This provision applies even though such lot fails to meet requirements for width or area, or both, of the lot must conform to the regulations for the district in which such lot is located. A variance of the requirements can be obtained only through action of the Board of Adjustment.
NONCONFORMING USES AND STRUCTURES
Nonconforming Uses of Land
Where, at the effective date of adoption or amendment of the Red Oak Zoning Ordinance, a lawful use of land exists that is made no longer permissible under the terms of the Red Oak Zoning Ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following:
- No such nonconforming use can be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment the Nonconforming Uses Section of the Red Oak Zoning Ordinance;
- A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use;
- No nonconforming use can 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 the Nonconforming Uses Section of the Red Oak Zoning Ordinance; and
- No additional structures can be erected in connection with such nonconforming use of land.
Where a lawful structure exists at the effective date of the Red Oak Zoning Ordinance, May 13, 2002, or the effective date of an amendment to the Red Oak Zoning Ordinance, that could not be built under the terms of the Red Oak Zoning Ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, the structure may be continued so long as it remains otherwise lawful, subject to the following:
- The structure may not be enlarged in a way which increases its nonconformity;
- The structure may not be altered in a way which increases its nonconformity;
- Should such structure be moved for any reason for any distance whatsoever, it is thereafter required to conform to the regulations of the district in which it is located after it is moved.
Nonconforming Use of Structures
If a lawful use of a structure exists that would not be allowed in the district under the terms of the Red Oak Zoning Ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following:
- No existing structure devoted to a use not permitted by the Red Oak Zoning Ordinance in the district in which it is located can 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.
- A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use.
- Any nonconforming use may be extended throughout any parts of a structure which were manifestly arranged or designed for such use at the time of adoption or amendment of the Nonconforming Uses Section of the Red Oak Zoning Ordinance, but no such use can be extended to occupy any land outside such structure.
Nonconforming Mobile Home or HUD-Code Manufactured Homes Used as Dwelling
- The use of a mobile home or HUD-Code manufactured home previously legally permitted and occupied as a residential dwelling, which no longer conforms to the requirements of the Red Oak Zoning Ordinance is nonconforming, and may be continued in accordance with the Nonconforming Uses and Structures Regulations.
- A mobile home occupied for residential use may be replaced with a HUD-Code manufactured home, in compliance with all development requirements except minimum living space requirements.
- A nonconforming HUD-Code manufactured home may not be replaced with a mobile home or another HUD-Code manufactured home, but the Board of Adjustment may permit the expansion of a HUD-Code manufactured home, not to exceed 25% of the existing floor area.
Repairs and Maintenance
On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring or plumbing, to an extent not exceeding 25% of the current replacement value of the building, provided that the cubic content of the building, as it existed on the effective date of the Red Oak Zoning Ordinance or upon the effective date of an amendment to the Red Oak Zoning Ordinance, can not be increased.
- If a building or portion of a building containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any authorized City official to be unsafe or unlawful by reason of physical condition, it can not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.
- Nothing in the Red Oak Zoning Ordinance is 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.
Special Exception Uses/Specific Use Permits: Not Nonconforming Uses
- Any use for which a special exception or specific use permit is granted pursuant to the Red Oak Zoning Ordinance can not be deemed a nonconforming use, but can, without further action be deemed a conforming use in such district only for the single property granted such special exception or specific use permit.
- Any specific use permit granted by the City Council which was lawfully existing at the effective date of this Code but which is no longer permitted under the Red Oak Zoning Ordinance or amendment thereof is considered a nonconforming use and is subject to all terms of the Red Oak Zoning Ordinance relating to nonconforming uses, unless the zoning classification under the Red Oak Zoning Ordinance for the property to which the special use attaches allows that particular use. Any specific use permit which has expired or which is not in compliance with the conditions placed upon such use will not be permitted to continue.
Discontinuance and Abandonment
- A nonconforming use, when legally abandoned or, alternatively, discontinued for an extended period, can not be resumed and any further use must be in conformity with the provisions of the Red Oak Zoning Ordinance. The City Council has determined that legal abandonment and extended discontinuance are separate, distinct methods by which a nonconforming use right may terminate. Legal abandonment involves the intent of the owner coupled with an act in furtherance of that intent. Extended discontinuance does not involve the intent of the owner but rather the voluntary termination of a use. The City Council has determined that it is in the best interest of the community for nonconforming uses to be brought into conformance with the Red Oak Zoning Ordinance at the earliest reasonable time. If a property owner can voluntarily terminate a nonconforming use for the period identified in extended discontinuance then it is evident that the property owner no longer needs the rights conferred by nonconforming use status. The different time periods of use termination reflect the City Council’s recognition of the different standard of review.
- Upon evidence of hardship, the Board of Adjustment may extend the time limits in not to exceed 1 year.
- A nonconforming use is considered to be legally abandoned when the following facts exist based upon the evidence available to the Administrative Official:
- The owner has expressed or demonstrated, in some manner, an intent to permanently discontinue the nonconforming use, and
- When land used for a nonconforming use ceases to be used in a bona fide manner for the nonconforming use for 90 consecutive days, or
- A structure designed or arranged for a nonconforming use ceases to be used in a bona fide manner as a nonconforming use for a period of 90 consecutive days.
- Legal abandonment is conclusively deemed to have occurred irrespective of the intent of the property owner if the nonconforming use was dilapidated, substandard, or was not maintained in a suitable condition for occupancy during the time periods set forth above.
A nonconforming use right is surrendered, forfeited, and lost under the following circumstances:
- When evidence is presented to the Administrative Official that land used for a nonconforming use has ceased to be used in a bona fide manner for the nonconforming use for 180 consecutive days or for a total of 540 days during any 3 year period
- When evidence presented to the Administrative Official indicates that a structure designed or arranged for a nonconforming use has ceased to be used in a bona fide manner as a nonconforming use for a period of 180 consecutive days or for a total of 180 days during any 90 day period
- When evidence is presented to the Administrative Official showing that a structure designed or arranged for a nonconforming use ceases to be used in a bona fide manner as a nonconforming use for a period of 90 consecutive days.
Destruction of Nonconforming Use
- If a nonconforming structure or a structure occupied by a nonconforming use is destroyed by fire, the elements, or otherwise, it may not be reconstructed or rebuilt except to conform with the provisions of the Red Oak Zoning Ordinance unless the destruction amounts to less than 50% of its fair market value at the time of destruction.
- If the destruction is greater than 50% and less than total, the Board of Adjustment may, after a public hearing, authorize repair, taking into consideration the property owner’s circumstances and the effect on surrounding properties.
- Where an individual structure or structures are destroyed by more than 50%, upon submission by the owner of sufficient evidence to prove that the destruction amounts to less than 50% of the total value of the entire nonconforming use and that the destroyed structure or structures constituted an integral part of the nonconforming use, without which the nonconforming use cannot be profitably operated, the Board of Adjustment may permit the reconstruction of such destroyed structure or structures under conditions which reasonably allow the owner to recoup his original investment.
Reconstructing Single Family Dwelling
A single family residence which is destroyed is permitted to be reconstructed without Board of Adjustment approval regardless of the extent of destruction provided that the construction complies with all current building codes and is commenced within 6 months of the date of destruction. The failure of the owner to start such reconstruction within 6 months forfeits the owner’s right to restore or reconstruct the dwelling except in conformance with the Red Oak Zoning Ordinance.
Obligation to Reconstruct
If the owner of a nonconforming use fails to begin reconstruction of the destroyed structure (when permitted to do so by the terms of the Nonconforming Uses Section of the of the Red Oak Zoning Ordinance) within 6 months of the date of destruction or approval by the Board of Adjustment, the nonconforming structure or use is deemed to be discontinued or abandoned.
AMORTIZATION OF A NONCONFORMING USE
In addition to the authority granted the Board of Adjustment by the Red Oak Zoning Ordinance, the Board of Adjustment has the power to bring about the discontinuance of a nonconforming use or structure under a plan whereby the owner’s actual investment in the use or structure prior to the time that the use or structure became nonconforming can be amortized within a definite time period.