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23.324.040 Nonconforming Uses.
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A. Changes to Nonconforming Uses.

1. Table 23.324-1 shows permits required to change a lawful nonconforming use.

Table 23.324-1. PERMIT REQUIREMENTS FOR CHANGES TO NONCONFORMING USES

Change to Nonconforming Use

Permit Required

Changes to a use that is allowed by right, complies with floor area requirements, conforms to all applicable requirements of the Zoning Ordinance excluding parking requirements, and is in a conforming building

ZC

Any change to a nonconforming use that does not require a Zoning Certificate or Use Permit by this table

AUP

Any project that substantially expands or changes a nonconforming use

UP(PH) [1]

Notes:

[1]In the ES-R district the increase in the area, space, or volume occupied by or devoted to a lawful nonconforming use is not allowed.

2. Substantial expansions and changes to a nonconforming use, as used in Table 23.324-1, means:

(a) All changes to a use listed in 23.404.070.B (Permit Modification Required); and

(b) Extending the nonconforming use into an existing or expanded portion of a building which has not been previously occupied by that nonconforming use.

B. Abandoned Uses.

1. Termination.

(a) Subject to the exceptions in Paragraph 2 (Exceptions) below, the ZAB may declare a lawful nonconforming use to be terminated upon finding that:

i. The use has not occurred for at least one year; and

ii. The most recent prior user has not shown a good-faith intent to resume it.

(b) The ZAB may require any person claiming that the use should not be declared terminated to produce documentation to substantiate good faith intent to resume the use.

2. Exceptions.

(a) Residential Uses. No lawful residential use can lapse, regardless of the length of time of the non-use.

(b) Uses with Major Investments. Lawful nonconforming full or quick service restaurants with cooking or food preparation facilities, gas/auto fuel stations, theaters, manufacturing plants with specifically designed fixed facilities and other uses which represent a major investment in physical plant or facilities shall not be considered or declared terminated, regardless of the duration of non-use, unless:

i. Such fixed structures, equipment, or facilities are removed; or

ii. Other uses could not be established without major removal of or extensive remodeling or replacement of structures associated with the previous established use.

(c) Alcoholic Beverage Retail Sales. If a lawful nonconforming alcoholic beverage retail sale use is closed is more than 90 days, the Zoning Adjustments Board (ZAB) may not declare the use terminated if the use was closed due to:

i. Repair that does not change the nature of the license premises or increase the square footage of the business used for alcoholic beverages sales; or

ii. Restoration of premises made totally or partially unusable by an act of nature, fire, accident, or other involuntary cause where the restoration does not increase the square footage of the business used for alcoholic beverage sales. (Ord. 7787-NS § 2 (Exh. A), 2021)