A.    Purpose. The purpose of this section is to establish regulations that govern uses, structures, lots and other current circumstances that came into being lawfully but that do not conform to one or more requirements of this Code, in compliance with K.S.A. 12-771.

B.    Policy. It is the general policy of the city to allow uses, structures or lots that came into existence legally and in conformance with then-applicable requirements but that do not conform to all of the applicable requirements of this Code to continue to exist and be used productively, while working to bring as many aspects of such use into conformance with the current Zoning Code as is reasonably practicable, and to terminate the right to carry out any nonconforming use as soon as such nonconforming use actually ceases, all subject to the limitations of this section. The limitations of this section are intended to recognize the interests of the property owner in continuing to use the property in a manner that no longer conforms to the requirements of this code but to control the expansion of the nonconformity and to control re-establishment of abandoned uses and limit re-establishment of buildings and structures that have been substantially destroyed.

C.    No nonconformities created by adoption of the March 15, 1999 Zoning Regulations. No use of a building, structure or property that was in existence on March 14, 1999, and complied with the zoning ordinance or zoning resolution in effect prior to March 15, 1999, shall become or be deemed to have become nonconforming or noncomplying due to adoption of this Code. Any use of a building, structure or property and any building, structure or property that complied with the zoning ordinance or zoning resolution in effect prior to March 15, 1999 may be rebuilt, repaired or otherwise re-established to the extent that it existed on March 14, 1999. The burden of proof to establish that any contested use was in existence on March 14, 1999, and the scope of such use upon that date, is upon the property owner claiming the applicability of this section.

A.    Maintenance and repair. Any structure which is part of a nonconforming use may be repaired or altered on the same terms set forth, under Article 6.602.

B.    Enlargement and expansion within a building and enlargement and expansion of a building. A nonconforming use may be expanded within the floor area of an existing, conforming structure or within an expanded structure, subject to the limitations listed herein. In any residential district, such expansion shall be permitted into an area equal to the original floor area of the nonconforming use, when the expansion:

1.    Does not increase the number of dwelling units;

2.    Includes plans for all off-street parking and loading required to serve the expansion area;

3.    If greater than 50 percent of the original floor area, is found by the Board of Zoning Appeals to be compatible with the neighborhood and not detrimental to the community, as determined by the effect of the expansion on traffic, value of adjacent and nearby properties, and the availability of adequate public facilities and services.

C.    Expansion of outdoor nonconforming uses. A nonconforming use of premises for which the principal use is not enclosed within a building, such as a salvage yard or a motor vehicle sales lot, may not be expanded except if such use may be expanded in a manner that conforms to the requirements of this Code. The Board of Zoning Appeals shall review a plan to enlarge a nonconforming use with a conforming use to determine whether the nonconforming use may be brought into conformity with the zoning code as part of the development of such expansion.

D.    Change in use. A nonconforming use may be changed to a new nonconforming use, provided that the new use shall be of a character less intensive (and thus more closely conforming) than the existing, nonconforming use. The initial determination of whether a proposed new use is a conforming use or is a less intense nonconforming use shall be made by the Planning and Zoning Administrator, or his/her designee, with an appeal to the Board of Zoning Appeals. In either case, the determination shall be based on the use hierarchy established by the Zoning Regulations. A nonconforming use, if changed to a conforming use or less intensive nonconforming use, may not thereafter be changed back to the less conforming use from which it was changed.

A.    Maintenance and repair. Remodeling of a nonconforming structure within the existing building footprint shall be permitted without a zoning variance, all in conformance with current building codes. Any nonconforming structure damaged to the extent of 50 percent or less of its fair market value by fire, wind, tornado, earthquake, or other natural disaster, may be rebuilt in conformance with current building codes, provided such rebuilding does not increase the intensity of use as determined by the number of dwelling units (for residences) or floor areas or ground coverage (for nonresidential uses). The structure shall not be rebuilt closer to the property line than the original structure or the applicable setback lines, whichever is closer. Nonconforming structures damaged 50% or less of their fair market value by flooding may be rebuilt as set forth in this section, provided such reconstruction shall conform to all requirements of the adopted building code related to construction in flood hazard areas. Any building so damaged more than 50 percent of its value may not be rebuilt, repaired, or used unless it is made to conform to all regulations for buildings in the district in which it is located, provided that such restoration as may be made is to the fullest extent possible in conformance with development standards.

B.    Enlargement and expansion. Any expansion of the nonconforming structure that increases the degree of nonconformance is prohibited. Expansions of the structure that do not increase the degree of nonconformance shall be permitted and shall not require a variance. The initial determination of whether a proposed expansion increases the degree of nonconformity shall be made by the Planning and Zoning Administrator or his/her designee, with an appeal to the Board of Zoning Appeals.

C.    Relocation. If a nonconforming structure is relocated within the area to which this Code is applicable, it shall be placed only in a location in which it fully conforms to the requirements of this Code.

D.    Unsafe structures. Nothing in this section shall be construed to permit the continuing use of a building found to be in violation of basic life, safety or health codes of the city. The right to continue to use a noncomplying structure shall be subject to all applicable housing, building, health and other life safety and health codes of the city.

A lot shown on an approved and recorded subdivision plat on the date on which this Code became applicable to the lot, or a parcel shown on the assessor’s records as a separate parcel on such date may be occupied and used although it may not conform in every respect with the dimensional requirements of this Code, subject to the provisions of this section.

A.    Vacant lot. If the lot or parcel was vacant on the date on which this Code became applicable to it, then the owner may use the property as permitted by the applicable zoning district, provided that the use shall comply with applicable dimensional requirements of this Code to the maximum extent practicable. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and one or more uses or intensities would comply with applicable setback requirements while others would not, then only the uses or intensities that would conform with the applicable setback requirements shall be permitted. Otherwise the owner may seek a variance from such requirements from the Board of Zoning Appeals.

B.    Lot with building or structure. If the lot or parcel contains a building or structure on the date on which this code becomes applicable to it, then the owner may continue the use of that building or structure and may reasonably expand the structure in any way that does not increase the degree of nonconformity. An increase in building size shall not be deemed to increase the degree of nonconformity unless it increases the encroachment on a required setback. Remodeling of a structure within the existing building footprint or expansion in compliance with this section shall not require a variance but shall be reviewed by the Planning and Zoning Administrator, City Inspector or his/her designee as though the lot were conforming.

C.    Lot merger. If the lot or parcel is smaller than would otherwise be required by this Code and such lot or parcel is at any time on or after the date on which this Code became applicable to such lot or parcel under common control with an adjacent lot or parcel, then the two shall be considered merged for purposes of this Code and shall in the future be considered together for purposes of determining compliance. If the merged lots or parcels contain sufficient area for the actual or proposed use, then they shall be deemed fully conforming. If the merged lots or parcels together do not contain sufficient area for the actual or proposed use, they shall nonetheless be considered together for purposes of reducing the degree of nonconformity. When a nonconforming lot or parcel shall not again be used as a separate lot or parcel, unless it is subdivided from the lot or parcel with which it has been merged; subdivision shall require full compliance with the requirement of this Code and the applicable subdivision regulations.

A.    Examples of other nonconformities. The types of other nonconformities to which this section applies include but are not limited to: fence height or location; lack of buffers or screening; lack of, or inadequate, landscaping; lack of, or inadequate, off-street parking; and other nonconformities not involving the basic design or structural aspects of the building, location of the building on the lot, lot dimensions or land or building use. However, a nonconformity other than those enumerated in Sections 601, 602 and 603 shall be brought into conformance upon the occurrence of any one of the following:

l.     Any increase on the premises of more than 30 percent floor area or 50 percent value;

2.    For a property in a commercial or industrial zone, any change in use to a more intensive use when a new certificate of occupancy is required.

B.    The requirement that nonconformities be brought into conformance shall be subject to variance by the Board of Zoning Appeals where it finds that such conformance would involve an unreasonable hardship.

C.    Policy. Because other nonconformities involve less investment and are more easily corrected than those involving lots, buildings and uses, it is generally the policy of the city to eliminate such other nonconformities as quickly as practicable.

D.    Increase prohibited. The extent of such other nonconformities shall not be increased, with or without a variance.

Nonconformities created by public action. When lot area or setbacks are reduced as a result of conveyance to a federal, state or local government for a public purpose and the remaining area is at least 75 percent of the required minimum standard for the district in which it is located, then that lot shall be deemed to be in compliance with the minimum lot size and setback standards of this Code without resort to the Board of Zoning Appeals.

A.    Nonconforming use. When a nonconforming use has been abandoned, such nonconforming use shall not be renewed. When a building containing a nonconforming use has been destroyed or damaged to an extent exceeding 50 percent of its fair market value, such nonconforming use shall terminate and shall not be renewed, and the building shall not be restored in a way that is designed primarily for a nonconforming use.

B.    When abandoned. A nonconforming use shall be presumed abandoned when any of the following has occurred:

l.     The owner has in writing or by public statement indicated intent to abandon the use;

2.    A less intensive use has replaced the original nonconforming use;

3.    The building or structure has been removed through the applicable procedures for the condemnation of unsafe structures;

4.    The owner has physically changed the building or structure or its permanent equipment in such a way as to indicate clearly a change in use or activity to something other than the nonconforming use; or

5.    The property, if a land use conducted primarily outside of a building, has been vacant or completely inactive for 12 months;

6.    The property, if a land use conducted primarily inside of a building, has been vacant or completely inactive for 24 months.

C.    Overcoming presumption of abandonment. A presumption of abandonment based solely on the length of time a land use has remained vacant or inactive may be rebutted within 90 days of such use being deemed abandoned upon a showing, to the satisfaction of the Board of Zoning Appeals, that during such period of vacancy or inactivity the owner of the land or structure:

1.    has been maintaining the land and structure in accordance with the all applicable building codes,; and

a.     has been actively and continuously marketing the land or structure for sale or lease based upon the existence of the nonconforming use; or

2.    has been engaged in other activities that would affirmatively prove that there was not an intent to abandon.

In all cases, the property owner shall have the burden of establishing that a nonconforming use or nonconforming structure lawfully exists under these regulations.

A.    Rights conditional. The rights given to those using or owning property involving nonconformity are specifically conditioned on the registration of the nonconformity with the Planning and Zoning Administrator, or his/her designee.

B.    Registration process. The Planning and Zoning Administrator, or his/her designee, shall establish a process for the registration of nonconformities and shall establish a system for keeping records of such nonconformities. The Zoning Administrator, or his/her designee, shall provide registration forms for this purpose.

C.    Registration deadlines. Property owners shall have one year from the date on which the nonconformity first became nonconforming to register it. Subject to the verification procedures established by the Planning and Zoning Administrator, or his/her designee, nonconformities so registered shall be deemed to be lawful nonconformities, to the extent documented on the registration form. All rights to continuance, maintenance, repair and other continuation of the nonconformity shall apply.

D.    Effect of not registering appeal. The Planning and Zoning Administrator or his/her designee shall refuse to permit the expansion, continuance, repair, maintenance or other continuation of nonconforming status for nonconformity not registered in accordance with this section. An aggrieved party may appeal such denial to the Board of Zoning Appeals, which may grant a late registration status to the nonconformity if it finds that:

1.    The failure to register the nonconformity occurred because the owner was unaware that the situation was nonconforming or from excusable neglect; and 2. The nonconformity was established lawfully in conformance with the then applicable Zoning Code, or is otherwise entitled to protection under a specific section of this Article.

E.    If the Board of Zoning Appeals grants late registration status to the nonconformity, the owner shall then be entitled to all of the rights accorded to the nonconformity as though it were registered in accordance with the requirements of this section.