§ 46-655. Nonconforming lots; structures; uses of land; uses of structure.

(a)

Intent. It is the purpose of this section to permit the continuance of a lawful use of any building or land existing at the effective date of the ordinance from which this chapter is derived, although such use of land or structure may not conform with the provisions of this chapter. It is recognized, however, that those nonconformities which adversely affect orderly development and the value of nearby property are not permitted to continue without restriction.

(b)

Encourage appropriate groupings. The zoning regulations established by this chapter are designed to guide the future use of land in the city by encouraging appropriate groupings of compatible and related uses and thus to promote and protect the public health, safety, and general welfare. The continued existence of nonconformities is frequently inconsistent with the purposes for which such regulations are established, and thus their gradual elimination is generally desirable. The regulations of this section permit such nonconformities to continue without specific limitation of time but are generally intended to restrict further investments which would make them more permanent.

(c)

Distinction between major nonconforming uses or structures and minor nonconformities. Different regulations are established for each of these categories in this subsection. The degree of restriction over each category is a function of the degree to which that category of nonconformity is a nuisance or incompatible with the purposes and regulations of this chapter.

(1)

Major nonconforming use or structure.

a.

A major nonconforming use is any use listed in the table below for the district in which it is listed:

Zoning District	Major Nonconforming Use
Residential	Industrial use
	Commercial use
Public lands and open space	Industrial use
	Commercial use
Business, office service, tourist service	Industrial use
Industrial	Residential use

 

b.

A major nonconforming use or structure shall not be changed to any use other than a use permitted in the zoning district in which it is located.

c.

Major nonconforming uses or structures shall not be reestablished in their nonconforming condition in any zoning district after damage or destruction, if the estimated expense of reconstruction exceeds 33 percent of the value, determined as the original cost, indexed to present day replacement cost and discounted for physical depreciation and physical obsolescence, as determined by the city assessor.

d.

If a major nonconforming use ceases for any reason for a period of more than 90 consecutive days, such discontinuance shall be considered conclusive evidence of an intention to abandon the nonconforming use. At the end of this period of abandonment, the nonconforming use shall not be reestablished and any future use shall be in conformity with the provisions of this chapter.

e.

Major nonconforming uses or structures may not be enlarged, increased, extended, altered, expanded, constructed or reconstructed except in accordance with subsection (h) of this section.

(2)

Minor nonconforming use or structure. A minor nonconforming use or structure is any nonconforming use or structure which is not a major nonconforming use or structure.

(d)

Minor nonconforming uses of land or structure. Where, at the effective date of adoption or amendment of the ordinance from which this chapter is derived, a lawful use of land and/or structure exists that is 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:

(1)

No such nonconforming use of structure or land shall be enlarged, increased, extended or altered to occupy a greater area of land than was occupied at the effective date of adoption or amendment of the ordinance from which this chapter is derived. An exception to this restriction can be made where an otherwise lawful structure exists 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, the zoning board of appeals may approve the reestablishment, expansion, alteration, or extension upon evidence of demonstrable hardship or practical difficulty resulting from conditions which do not exist generally throughout the zone.

(2)

No such nonconforming use of structure or land 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 the ordinance from which this chapter is derived.

(3)

Nonconforming uses shall not be changed to another nonconforming use except after approval of the board of zoning appeals. Before granting such approval, the board shall determine, by making findings in the specific case, that such change in use will have a less detrimental effect on neighboring properties than the existing nonconforming use, and is more or equally appropriate in the zone. In permitting such change, the board of appeals may require appropriate conditions in accordance with the purpose and intent of this chapter.

(4)

If such nonconforming use of land or structure ceases for any reason for a period of more than 90 consecutive days, such discontinuance shall be considered conclusive evidence of an intention to abandon the nonconforming use. The time limit of discontinuance may be extended beyond the 90 days, for a period of time not to exceed one year upon proper application to the board of zoning appeals within the 90-day period and upon presentation of evidence that an unnecessary hardship or practical difficulty would exist should the 90-day limitation be strictly enforced. At the end of this period of abandonment, the nonconforming use of structure or land shall not be reestablished and any future use shall be in conformity with the provisions of this chapter.

(5)

Structural alterations or extensions adding to the bulk of a structure which is nonconforming shall be permitted without prior approval of the board of zoning appeals; provided, that such structure alteration or extension shall not increase the extent of nonconformity and shall satisfy all other site development regulations which are applicable.

(6)

Structural alterations which do not add to the bulk of structure or increase the intensity of use of the structure shall not require prior approval of the board of zoning appeals.

(7)

Nonconforming buildings or structures may be structurally altered so as to prolong the life of the building or structure.

(8)

Nonconforming structures may be reestablished in any zoning district after damage or destruction of the nonconforming structure, if such building or structure is nonconforming due only to its being located on a site having a size, width or both, less than prescribed in the applicable sections of this chapter.

(9)

Structures which are nonconforming due to their having an insufficient setback may not be reestablished in their nonconforming condition in any zoning district after damage or destruction, if the estimated expense of reconstruction exceed 50 percent of the value, except with approval of the board of zoning appeals. The value is determined in this subsection as the original cost, indexed to present day replacement cost and discounted for physical depreciation and physical obsolescence, as determined by the city assessor. A variance shall be granted by the board only when the strict application of the requirements of this chapter would pose demonstrable hardship or practical difficulty resulting from conditions which do not exist generally throughout the zone. The terms hardship and practical difficulty shall not be deemed financial hardship or mere inconvenience.

(10)

Any nonconforming use of a structure 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 the ordinance from which this chapter is derived.

(e)

Nonconforming lots. 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 or 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 board of appeals.

(f)

Repairs and maintenance. Repairs and maintenance may be performed on any building devoted in whole or in part to a nonconforming use; including ordinary repairs or repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding 50 percent of the assessed value (25 percent of true cash value) of the building during any period of 12 consecutive months. However, the cubic content of the building as it existed at the time of passage or amendment of the ordinance from which this chapter is derived shall not be increased, except as otherwise provided for in this section. Nothing in this article 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.

(g)

Prior construction approval.

(1)

Nothing in this article shall prohibit the completion of construction and use of a nonconforming building for which a building permit has been issued prior to the effective date of the ordinance from which this chapter is derived; provided that construction is commenced within 90 days after the date of issuance of the permit, that construction is carried on diligently and without interruption for a continuous period in excess of 30 days, and that the entire building shall have been completed according to the plans filed with the permit application within two years after the issuance of the building permit.

(2)

To avoid undue hardship, nothing in this article shall be deemed to require a change in the plans, construction or designated use of any building on which construction was lawfully begun prior to the effective date of adoption or amendment of this article, and upon which actual construction has been diligently carried on. The term "actual construction" is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner; except that where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction; provided that work shall be diligently carried on until completion of the building involved.

(h)

Uses under exception provisions. Any use which was permitted with a special exception as provided in this chapter, shall not be deemed a nonconforming use, but shall, without further action, be deemed a conforming use.

(i)

Change of tenancy or ownership. There may be a change of tenancy, ownership or management of any existing nonconforming uses of land, structures, and premises; provided there is no change in the nature or character of such nonconforming uses.

(j)

Elimination of nonconforming use or structure. The city may acquire by purchase, condemnation or other means, private property or an interest in private property for the removal of any nonconforming use or structure. The cost or expense or a portion thereof may be paid from general funds or assessed to a special district in accordance with applicable statutory provisions.

(Prior Code, § 5.183; Ord. No. 87-01, 1-12-1987)

State law reference

Nonconforming uses or structures, MCL 125.3208.