§ 47-3.8. Termination of nonconforming status.

A.

The legal nonconforming status of a nonconforming building or structure or a nonconforming use shall be terminated and the nonconforming use of the building or structure shall no longer be permitted, except in accordance with the ULDR in effect at the time a use is resumed, upon the occurrence of one of the following:

1.

Fifty percent (50%) or more of the replacement value of a nonconforming building or structure is removed, damaged or destroyed or fifty percent (50%) or more of the total area of a building or structure is removed, damaged or destroyed.

2.

a.

If a nonconforming building or structure or nonconforming use is discontinued for a continuous period of one hundred and eighty (180) days in accordance with this section, there shall be a presumption of discontinuance of use if any one (1) or more of the following occurs for a continuous period of one hundred and eighty (180) days:

i.

The goods or services previously provided on the premises are no longer provided;

ii.

There is no water or electricity provided to the site and this is not due to natural causes;

iii.

A certificate of occupancy has not been issued for the structures located on the site;

iv.

Other evidence that the use has been discontinued.

b.

If the use has been discontinued for more than one hundred and eighty (180) days based on the criteria provided in this subsection A.2, the legal nonconforming status of the building, structure or use is terminated unless an application for continuation of a nonconforming status is approved as provided herein.

c.

A property owner may apply to the department for continuation of legal nonconforming status if the applicant shows that:

i.

Circumstances such as death of a property owner; revocation of a license necessary to operate the use or results in the discontinuance of the use and there is no determination by the entity which took action to cause the discontinuance that the owner acted wrongfully; foreclosure litigation; bankruptcy, or loss of a tenant; and

ii.

Continuous good faith efforts to resume the use have been shown. If discontinuance in use is due to the loss of a tenant, the owner must show that reasonable action to obtain a new tenant has continued such as listing the property with a real estate agent, receipt of good faith offers on a regular basis by interested persons, existence of a telephone number which is available to persons interested in the property and evidence of continuous active marketing efforts such as advertisements in appropriate media and current signage on the property.

d.

An application for an extension of nonconforming status shall be filed with the department and shall be reviewed in accordance with the process for site plan level I review in accordance with Sec. 47-24.2, Site Plan Review Development Permit. The application need not include the information in Sec. 47-24.1.F.10. If the department finds that the requirements provided in this section have been met, the application for extension may be granted for a period of time necessary to resume the use as determined by the department based on the information provided by the applicant, but in no case for a period exceeding two (2) years subject to such conditions necessary to ensure that the use is resumed. If the department finds that the criteria have not been met, then the application for continuation shall be denied and the termination of the legal nonconforming status is confirmed.

e.

The order granting the application for continuation of legal nonconforming status shall require the applicant to resume a nonconforming use as permitted by this section within the time provided in the order. If a nonconforming use is not resumed within the time provided in the order, the applicant must submit another application for another continuation prior to the expiration of the time limitation. The application shall be reviewed and an approval considered based on the same criteria as applied to the first application. If an application is not filed before the expiration of the time limitation, then the nonconforming status shall terminate. A property owner must continue to file applications and receive extensions of nonconforming status until such time as a nonconforming use of the property is resumed or the nonconforming status shall terminate. Use of the property shall be resumed when the conditions evidencing the discontinuance of the nonconforming operations associated with the use no longer exist.

f.

Commission request for review. The order granting an extension of nonconforming status shall not take effect nor shall a building permit be issued any sooner than thirty (30) days after approval and then only if no motion is adopted by the city commission seeking to review the application or no appeal is filed by the applicant as provided in Section 47-26B, Appeals.

g.

Appeal. A denial of an application for extension of nonconforming status may be appealed by the property owner to the planning and zoning board in accordance with Section 47-26B, Appeals.

3.

There is a change in use which is not approved in accordance with Sec. 47-3.5.

(Ord. No. C-97-19, § 1(47-3.7), 6-18-97)