901.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 these regulations, pursuant to K.S.A. 12-771. Such use, structure, lot or other current circumstances are considered nonconforming.
901.B. POLICY. It is the general policy of the City to allow nonconforming uses, structures or lots to continue to exist and be used productively, while working to bring as many aspects of such into conformance with the current zoning regulations as is reasonably practicable, and to terminate the right to carry out any nonconformity as soon as such nonconformity 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 these regulations but to control the expansion of the nonconformity and to control the re-establishment of abandoned uses and limit the re-establishment of buildings and structures that have been substantially damaged.
901.C. APPLICABILITY. This article shall apply only to any such use, structure, lot or other current circumstance that was legally established and/or permitted in conformance with the then applicable requirements of these regulations but that do not conform to all of the applicable requirements of these regulations today. Any such use, structure, lot or other certain circumstance that was not legally established and/or permitted shall be a violation of these regulations and shall be subject to the procedures established in ARTICLE 11 of these regulations.
902.A. DEFINITION. Nonconforming use means the use of any land, building or structure which does not comply with the use regulations of the zoning district in which such use is located but which complied with the use regulations in effect at the time the use was established, or as otherwise defined in SECTION 302 of these regulations.
902.B. MAINTENANCE, REPAIR AND MODIFICATION OF STRUCTURES. Any structure which is part of a nonconforming use may be maintained, repaired, or remodeled on the same terms as set forth under SECTION 903.B and SECTION 903.C of these regulations. Such structures shall not be expanded, modified or altered outside of their existing building footprint.
902.C. MAINTENANCE, REPAIR AND MODIFICATION OF PROPERTIES. Any property which is part of a nonconforming use may be repaired and maintained as needed to continue the nonconforming use. The property may not be altered or modified unless such alteration or modification will benefit the public health, safety, and morals. A benefit may include decreasing the degree of nonconformity. Such benefit shall be determined by the Zoning Administrator with an appeal to the Board of Zoning Appeals. Appeal procedures may be found in SECTION 1007.
902.D. CHANGE IN USE. A nonconforming use may not be changed to another nonconforming use. When a nonconforming use is abandoned or changed, the property owner may not again establish a use that is in any manner inconsistent with these regulations.
903.A. DEFINITION. Nonconforming structure means a structure lawfully existing at the time these regulations became effective, or as amended, which does not conform to the setback, height, or other dimensional or property development standards applicable to the zoning district in which the structure is located, or as otherwise defined in SECTION 302 of these regulations.
903.B. MAINTENANCE AND REPAIR. General maintenance, repair, and remodeling of a nonconforming structure within the existing building footprint shall be permitted without a variance, if in conformance with current building codes.
903.C. SUBSTANTIAL DAMAGE. Any nonconforming structure damaged to the extent of 50% 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% 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.
903.D. EXPANSION, ALTERATION OR MODIFICATION. Any expansion, modification or alteration of the nonconforming structure that increases the degree of nonconformance is prohibited. Expansions, modifications and alterations 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, modification or alteration increases the degree of nonconformity shall be made by the Zoning Administrator or his/her designee with an appeal to the Board of Zoning Appeals. Appeal procedures may be found in SECTION 1007.
903.E. RELOCATION. If a nonconforming structure is relocated within the area to which these regulations is applicable, it shall be placed only in a location in which it fully conforms to the requirements of these regulations.
903.F. 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 nonconforming structure shall be subject to all applicable housing, building, health and other life safety and health codes of the City.
904.A. DEFINITION. Nonconforming lot means a lot lawfully existing at the time these regulations became effective, or as amended, which does not conform to the setback, lot size or other dimensional or property development standards applicable to the zoning district in which the lot is located, or as otherwise defined in SECTION 302 of these regulations.
904.B. GENERAL POLICY. A lot shown on an approved and recorded subdivision plat on the date on which these regulations 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 these regulations, subject to the provisions of this section.
904.C. VACANT LOT. If the lot or parcel was vacant on the date on which these regulations became applicable to it, then the owner may use the property as permitted by the current applicable zoning district, provided that the use shall comply with the current applicable dimensional requirements of these regulations 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. Variance procedures may be found in SECTION 1005.
904.D. LOT WITH BUILDING OR STRUCTURE. If the lot or parcel contains a building or structure on the date on which these regulations 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 or other dimensional standard. Remodeling of a structure within the existing building footprint or expansion in compliance with the applicable dimensional standards and building code shall not require a variance but shall be reviewed by the Zoning Administrator, City Inspector or his/her designee as though the lot were conforming.
904.E. LOT MERGER. If the lot or parcel is smaller than would otherwise be required by these regulations and such lot or parcel is at any time on or after the date on which these regulations 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 these regulations 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. The merged nonconforming lots or parcels shall not again be used as a separate lots or parcels, unless they are subdivided from the lot or parcel with which it has been merged; subdivision shall require full compliance with the requirement of these regulations and the applicable subdivision regulations.
905.A. EXAMPLES OF OTHER NONCONFORMITIES. The types of other nonconformities to which this section applies include but are not limited to:
1. Fence height or location;
2. Lack of, or inadequate, buffers or screening;
3. Lack of, or inadequate, landscaping;
4. Lack of, or inadequate, off-street parking; and
5. 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.
905.B. REMOVAL OF OTHER NONCONFORMITIES. A nonconformity other than those enumerated in SECTIONS 902, 903 and 904 shall be brought into conformance upon the occurrence of any one of the following:
1. Any increase on the premises of more than 30 percent floor area or 50 percent value;
2. Any change in use.
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.
905.C. GENERAL 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.
905.D. INCREASE PROHIBITED. The extent of such other nonconformities shall not be increased, with or without a variance.
906.A. GENERAL. 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 these regulations without a variance from the Board of Zoning Appeals.
907.A. SUBSTANTIAL DAMAGE. When a nonconforming structure or a building containing a nonconforming use has been destroyed or damaged to an extent exceeding 50 percent of its fair market value, such nonconformity shall terminate and shall not be renewed, and the structure or building shall not be restored in a way that is designed primarily for such nonconforming use or in any way not in conformance with these regulations.
907.B. ABANDONMENT. When a nonconforming use has been abandoned, such nonconforming use shall not be renewed. A nonconforming use shall be presumed abandoned when any of the following has occurred:
1. The owner has in writing or by public statement indicated intent to abandon the use;
2. There has been a change in use;
3. The building or structure has been removed through the applicable procedures for the condemnation of unsafe structures; or
4. The owner has demolished the building or structure or removed the equipment necessary to perform the nonconforming use; or
5. The property has been vacant or completely inactive for 12 months;
907.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 Zoning Administrator, 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 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.
907.D. ZONING AMENDMENT. A nonconformity shall be considered discontinued if an amendment to these regulations renders the nonconformity once again in conformance with these regulations. Any limitations imposed on the property due to the nonconformity shall also be discontinued.
907.E. VARIANCE. A nonconformity shall be considered discontinued if a variance is granted that renders the nonconformity in compliance with these regulations. Variance procedures may be found in SECTION 1005. Any limitations imposed on the property due to the nonconformity shall be discontinued after the granting of the variance.
908.A. GENERAL. In all cases, the property owner shall have the burden of establishing that a nonconforming use, structure, lot, or other certain circumstance lawfully exists under these regulations.