§ 38-378. Nonconforming uses.

(a)

Intent. It is the intent of this section to permit the continuance of a lawful use of any building or land existing at the effective date of this section, although such use of land or structures may not conform with the provisions of this chapter.

There are two (2) types of nonconforming uses, Class A and Class B.

Class A nonconforming uses or structures are those which have been so designated by the zoning board of appeals, after application by the person having interest in the property or the zoning administrator. Where Class A nonconforming uses are identified, it is the intent of this section to provide for their continuance, so long as they fulfill the requirements in this section.

Class B nonconforming uses or structures are all nonconforming uses or structures not designated as Class A. It is the intent of this section not to encourage the survival of Class B nonconforming uses or structures. Class B nonconforming uses or structures shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other uses or structures prohibited elsewhere in the same district.

The continuance of all nonconforming uses and structures within the city shall be subject to the conditions and requirements set forth in this section.

(b)

Procedures for obtaining Class A designation. Any application for a Class A designation for a nonconforming use permit for any land or structural use permitted under this article shall be submitted and processed under the following procedures:

(1)

A written application shall be filed with the zoning board of appeals setting forth the name and address of the applicant, giving a legal description of the property to which the application pertains and including such other information as may be necessary to enable the board of appeals to make a determination of the matter.

(2)

The zoning board of appeals may require the furnishing of such additional information as it considers necessary.

(3)

A notice of hearing and subsequent hearing procedures shall be given in accordance with the procedures outlined in section 38-502(e).

Before an application for Class A designation for a nonconforming use can be processed, the zoning board of appeals shall review each application to ensure, beyond a reasonable doubt, that the following standards are met:

(4)

That the continuance of the use would not be contrary to the public health, safety or welfare or the spirit of this chapter.

(5)

That the use or structure does not and is not likely to significantly decrease the value of nearby properties.

(6)

That the use or structure was lawful at the time of its inception and that no useful purpose would be served by strict application of the provisions or requirements of this chapter with which the use or structure does not conform.

(c)

Approval of Class A designation. The zoning board of appeals shall approve Class A designation for nonconforming uses that comply with the standards and procedures of this section. The decision of the board of appeals shall be in writing and shall set forth the findings and reasons on which it is based. The board of appeals shall attach conditions, where necessary, to assure that the use or structure does not become contrary to the public health, safety or welfare or the spirit and purpose of this chapter. In addition, no vested interest shall arise out of a Class A designation.

(d)

Revocation of Class A designation. Any Class A designation shall be revoked, following the same procedure required for designation, upon a finding that as a result of any change of conditions or circumstances the use or structure no longer qualifies for Class A designation.

(e)

Regulations pertaining to Class A nonconforming uses and structures. A Class A nonconforming use or structure shall not be repaired, restored, extended, enlarged, moved or substituted for except in accord with the following requirements:

(1)

This chapter shall not prohibit the repair, improvement or modernization of a Class A nonconforming structure to correct deterioration, obsolescence, depreciation and wear, provided that such repair does not exceed an aggregate cost of fifty (50) percent of the structure's replacement cost. Repairs, improvements or modernization in excess of fifty (50) percent of the structure's replacement cost may be permitted by the zoning board of appeals, provided the structure will still meet the qualifications of a Class A nonconforming use or structure.

(2)

Any Class A nonconforming use or structure damaged by fire, explosion, flood, erosion or other means may be restored, rebuilt or repaired, provided that such restoration does not exceed fifty (50) percent of the structure's pre-catastrophe replacement cost as determined by a qualified appraiser. Restoration of a Class A nonconforming use or structure damaged in excess of fifty (50) percent of the structure's pre-catastrophe replacement cost may be permitted by the zoning board of appeals, provided the restored structure would still meet the qualifications of a Class A nonconforming use or structure. However, no Class A nonconforming structure damaged in a floodplain or other areas of recurring natural hazards in excess of fifty (50) percent of the structure's pre-catastrophe replacement shall be rebuilt except in full compliance with this chapter.

(3)

Structural changes, including enlargement or extension of a Class A nonconforming structure or use, may be permitted by the zoning board of appeals, except when such extension or enlargement would be incompatible with surrounding land uses or when the structural change would be inconsistent with the intent of this chapter. No extension or enlargement of a Class A nonconforming use or structure shall be approved if approval would result in violation of the setback, side yard or bulk requirements of this chapter.

(4)

A Class A nonconforming use may be substituted for a similar nonconforming use or structure when the zoning board of appeals determines that the substitution would improve the property, would not increase the structure's or use's nonconformity, or when the substitution would not be contrary to the intent of this chapter.

(f)

Regulations pertaining to Class B nonconforming uses and structures. It is a purpose of this chapter to eliminate Class B nonconforming uses and structures as rapidly as is permitted by law without payment of compensation. A Class B nonconforming use or structure shall not be repaired, restored, extended, enlarged or substituted for except in accord with the following requirements:

(1)

Minor repairs or maintenance of a Class B nonconforming use or structure in order to keep it structurally safe and sound are permitted. A Class B nonconforming use or structure shall not be repaired, improved or remodeled when such repair or improvement exceeds twenty-five (25) percent of the structure's replacement cost. The replacement cost shall be determined, prior to any repairs or improvements, by a qualified appraiser. If a Class B nonconforming use or structure is changed to conform with this chapter, the limitations on repairs or improvements shall not apply.

(2)

Any Class B nonconforming use or structure damaged by fire, explosion, flood, erosion or other means shall not be rebuilt, repaired or reconstructed if damaged in excess of fifty (50) percent of the structure's pre-catastrophe replacement cost, except when the use or structure would fully comply with the requirements of this chapter.

(3)

No Class B nonconforming use or structure shall be enlarged, extended or structurally altered, nor shall the nonconforming use be changed to a substantially different nonconforming use.

(4)

No such nonconforming use 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 to this chapter.

(5)

No Class B nonconforming use or structure shall be permitted to continue in existence if it was unlawful at the time it was established.

(6)

A Class B nonconforming structure or use may be substituted for by a conforming use or structure, or by a use or structure which meets the requirements of a Class A nonconforming use, when the zoning board of appeals determines that the substitution would not increase the nonconformity of the use or structure or be contrary to the public health, safety and welfare and the intent of this chapter.

(g)

Determination of replacement cost. The replacement cost of repairing, restoring or improving a Class A or B nonconforming use or structure, excluding contents, damaged by fire, explosion, flood, erosion or other means, shall be made on the basis of an appraisal by a qualified individual designated by the zoning board of appeals. The cost of such determination shall be borne by the zoning administrator after:

(1)

Receiving an estimate of the structural damage from the city fire chief;

(2)

Receiving a figure representing the difference between the pre-catastrophe market value of the structure and the post-catastrophe value, as determined by the assessing officer for the city;

(3)

Dividing the sum of the figures derived in subsection (1) from the fire chief and subsection (2) from the assessing officer by two (2).

(h)

Nonconforming lots of record. Any nonconforming lot of record or nonconforming lot described in a deed or land contract executed and delivered prior to the effective date of this chapter or an amendment thereto shall be used only for a use permitted in this chapter. If the use of a nonconforming lot requires a variation of the setback or yard requirements of this chapter in excess of fifteen (15) percent of the requirement, then such use shall be permitted after review of a site plan by the zoning board of appeals under the terms of this chapter. The board may amend the site plan to achieve an objective for reasonableness of the fit of the land use on the available land. The zoning board of appeals shall have the authority to amend structural dimensions and site layout to achieve this objective. The standards to be applied by the zoning board of appeals, in reviewing the site plan, shall be the applicable standards stated in section 38-504(3). The reduction by fifteen (15) percent or less of dimensional requirements for lawful nonconforming lots may be granted by the zoning administrator. When the minimum dimensional requirements of this chapter can be met by the combination of two (2) or more nonconforming contiguous lots owned by the same person, said lots may be combined for use and no variance is necessary.

(i)

Discontinuance or abandonment. Whenever a nonconforming use has been discontinued for twelve (12) consecutive months, or for eighteen (18) months during any three-year period, such discontinuance shall be considered conclusive evidence of an intention to abandonment; the nonconforming use shall not be reestablished, and any future use shall be in conformity with the provisions of this chapter.

(j)

Changing uses. If no structural alterations are made, the board of appeals may, upon an appeal, authorize a change from one (1) nonconforming use to another nonconforming use, provided the proposed use would be more suitable to the zoning district in which it is located than the nonconforming use which is being replaced. Whenever a nonconforming use has been changed to a more nearly conforming use or to a conforming use, such use shall not revert or be changed back to a nonconforming or less conforming use.

(k)

Termination of nonconforming land use. Class B nonconforming uses of land existing at the effective date of this chapter, where no building is located, may be continued, provided that the nonconforming land use shall be terminated and converted to conform with the provisions of this chapter within three (3) years after the effective date of this section, and provided further that the nonconforming land use shall not in any way be expanded or extended during this three-year interval, either on the same property or adjoining property.

(l)

Illegal nonconforming uses. Nonconforming uses of buildings or land existing at the effective date of this section established without a building permit, or those nonconforming uses which cannot be proved conclusively as existing prior to the effective date of this section shall be declared illegal nonconforming uses and shall be discontinued within a period of three (3) years following the effective date of this section, subject to the review and approval of the city council.

(m)

District changes. Whenever the boundaries of a district shall be changed so as to transfer an area from one (1) district to another district of another classification, the provision of this section shall also apply to any existing uses that become nonconforming as a result of the boundary changes.

(n)

Elimination of nonconforming uses. In accordance with Act 207, Public Acts of the State of Michigan of 1921, as amended, the city council may acquire properties on which nonconforming buildings or uses are located, by condemnation or other means, and may remove such uses or such uses may be used by the city for a public use. The net cost of such acquisition may be assessed against a benefiting district or may be paid from other sources of revenue.

(o)

Uses under exception provisions not nonconforming uses. Any use for which a special exception is permitted as provided in this chapter shall not be deemed a nonconforming use but shall, without further action, be deemed a conforming use in such district.

(p)

Change of tenancy or ownership. There may be a change of tenancy, ownership or management of any existing nonconforming uses of land, structures and land in combination.

(Code 1977, § 5.78; Ord. No. 459, § 1, 4-3-89; Ord. No. 619, § 1, 9-16-02)

State law reference

Nonconforming uses and structures, MCL 125.583a.