§ 23.5-3. Nonconformities.

a)

Generally.

1.

Purpose. It is the intent of this section to permit the continuation of those buildings and structures, lots of record, uses of buildings and structures, and uses of land which were lawfully permitted when established or commenced, but which do not conform in whole or in part to the present terms of these LDRs or as they may be amended from time to time. The expansion or enlargement of nonconformities however is discouraged as herein provided.

2.

Reserved.

3.

A change in tenancy, ownership, or management of a nonconforming use, structure, or lot shall not be construed to create a nonconformity, provided the change in otherwise lawful and in compliance with these LDRs.

4.

The existence of a nonconformity shall not be used as a reason to add new uses or structures that are not allowed by these LDRs.

5.

The temporary or illegal use of property shall not be sufficient to establish the existence of a nonconformity or to create rights in the continuation of a nonconformity until it shall come into compliance with these LDRs.

6.

For nonconformity in use to be maintained an active Lake Worth Business License must be maintained. Should the business license lapse due to non renewal by the annual due date or expire for a period of six (6) months or not be transferred to a new owner or occupant within three (3) months, the nonconformity shall be lost and the use shall conform to all of the requirements of these LDRs.

b)

Nonconforming uses of land . A nonconforming use of land is an activity primarily occurring not within a building, but either on open realty or with the use of minor buildings, and which use was lawful and properly permitted by the city when commenced or undertaken, but which does not conform to the current provisions of these LDRs. The decision of the development review officer as to whether a nonconforming use is a nonconforming use of land or a nonconforming use of a building or structure, as each is described in this section, shall be final unless reversed by the planning and zoning board or historic resources preservation board, as applicable. A nonconforming use of land, such as storage or junk yard operation, may be continued, subject to the following provisions:

1.

No such nonconforming use shall be enlarged, increased, or extended to occupy a greater area of land regardless of ownership or tenancy than was occupied on the effective date of the provision of these LDRs giving rise to the nonconformity.

2.

No nonconforming building or structure as defined and provided herein shall be erected in connection with a nonconforming use of land.

3.

If any nonconforming use of land ceases for any reason for a period of three (3) months or more, any subsequent use of such land shall be in compliance with the requirements of these LDRs.

c)

Nonconforming lots of record . A nonconforming lot of record is a platted lot which by width, depth, area, dimension or location does not meet current standards set forth in these LDRs. In any zoning district in which single-family dwelling units are permitted, notwithstanding limitations imposed by other provisions of these LDRs, a single-family dwelling unit and customary accessory buildings may be erected on any single nonconforming lot of record so platted on or before January 5, 1976. For lots in the College Park and Worthmore Park subdivisions, if two (2) or more such lots, or combination of lots or portions of lots, with continuous frontage in single ownership were of record on January 5, 1976, the lands involved shall be considered to be an individual parcel or building site for the purpose of these LDRs and shall be no less than fifty (50) feet in width. No portion of said parcel shall be used or sold in a manner which prevents compliance with lot width and area requirements established by these LDRs. For lots created after January 5, 1976, no division of any parcel shall be made which creates a lot width or area below the requirements stated in these LDRs.

d)

Nonconforming buildings and structures . A nonconforming building or structure is a building or structure properly constructed according to the law existing at the time of permit but which does not presently conform to the property development regulations of these LDRs for minimum site area or dimensions, minimum setback requirements, maximum building or structure height, maximum lot coverage, minimum floor area, parking or loading or for other characteristics of buildings or structures regulated in these LDRs, or for its location on the lot. A nonconforming building or structure may continue to exist in a nonconforming state so long as it otherwise conforms to law, subject to the following provisions:

1.

Nonconforming buildings and structures may be enlarged, expanded or extended subject to these LDRs, including minimum site area and dimensions of the district in which the building or structure is located. No such building or structure, however, shall be enlarged or altered in any way so as to increase its nonconformity. Such building or structure, or portion thereof, may be altered to decrease its nonconformity, except as hereafter provided.

2.

Should the structure or building be deteriorated or destroyed by any means to an extent of more than fifty (50) percent of the assessed value of the structure or building as determined by the building official, it shall not be reconstructed except in conformity with the provisions of these LDRs.

3.

Should the structure or building be deteriorated or destroyed by any means to an extent of less than fifty (50) percent but more than thirty-three (33) percent of its assessed value as determined by the building official, it may be restored only upon issuance of a variance pursuant to section 23.2-26 for the particular building or structure nonconformity. A variance shall not supersede a condemnation order of the building official and such variance shall not obviate the necessity of obtaining other needed waivers or variances from the city.

4.

Should such building or structure be moved to a new site, or to a new location on the same lot or site, it shall conform to the current land development regulations relevant at the time of the relocation.

e)

Nonconforming uses of buildings and structures . A nonconforming use of a major building or structure is an activity primarily occurring within such building or structure, but which may also include the use of surrounding premises including land or nearby minor buildings. Such activity shall have been lawfully permitted at the time of its inception. The decision of the development review officer as to whether a nonconforming use is a nonconforming use of land or a nonconforming use of a building or structure, as each is described in this section, shall be final unless reversed by the planning and zoning board or historic resources preservation board, as applicable. Such nonconforming use may be continued so long as it remains otherwise lawful, subject to the following provisions:

1.

No existing building or structure devoted to a use not permitted by these LDRs may be extended, enlarged, reconstructed, moved, or structurally altered except as necessary to change the use of the building or structure to a use permitted by these LDRs or except to change the building or structure to a conforming building or structure.

2.

No nonconforming use of a structure may be extended to any portion of a building or structure not previously put to such use prior to the adoption of the regulation giving rise to the nonconformity. Further, such use shall not be extended to occupy any land outside such building or structure.

3.

In the event a nonconforming use of a building or structure is discontinued for any period however brief and replaced by a permitted use, the nonconforming use shall not be resumed.

4.

When a nonconforming use of a structure or building ceases for six (6) consecutive months, or for eighteen (18) months during any three-year period, and is not replaced by a permitted use, the structure or building shall not thereafter be used except in conformance with the regulations of the district in which it is located. The issuance or existence of a required license, permit or other governmental authorization to conduct such nonconforming use shall not mean that the use has not ceased, but the lack of such license, permit or authority shall create a rebuttable presumption that the use has ceased. Actions or activities of the owner of a property attempting to lease or rent the property shall not be considered a use of the property in determining whether a nonconforming use of a structure or building has ceased.

5.

Where nonconforming use status applies to a building or structure, removal or destruction of the building or structure shall eliminate the nonconforming use, including any and all related activities on the surrounding premises including land or nearby minor buildings. Destruction for the purpose of this section is defined as damage to an extent of more than fifty (50) percent of the current replacement value of the building or structure, as determined by the building official.

f)

Certificate of conformity .

1.

Application. The provisions of this section shall apply to any real property which has been or will be rendered nonconforming because of the institution of eminent domain proceedings by a governmental agency. Any nonconforming parcel so created shall be deemed a conforming parcel upon the issuance of a certificate of conformity as provided in this section.

2.

Procedure. The condemnor or condemnee in an eminent domain proceeding may submit an application to the development review officer for a certificate of conformity relative to the remainder parcel which has been or will be created as a result of the eminent domain proceedings. The application shall include the following:

A.

The legal description of the remainder parcel which has or will become nonconforming.

B.

The name and address of the owner of the remainder parcel.

C.

The name and address of the condemnor including the name and address of the condemnor's representative.

D.

Evidence of the institution of eminent domain proceedings.

E.

A recent certified survey of the remainder parcel or of a sufficient portion thereof as will enable the director of the department for community sustainability to determine the extent of the acquisition and the location and nature of all affected structures located on the remainder parcel.

F.

A site plan of the property subject to the eminent domain proceeding or sold under the threat of an eminent domain proceeding at a scale of not less than one (1) inch equals twenty (20) feet, showing the location of all structures and improvements on the property and the extent of the condemnor's acquisition.

G.

A statement of justification in support of the issuance of the certificate of conformity.

H.

Evidence that both the condemnor and condemnee in the eminent domain proceedings are aware of the application for certificate of conformity.

I.

Any other information reasonably requested by the development review officer which is relevant to the application.

3.

Review of completed application. The development review officer shall review a complete application for a certificate of conformity and shall render a decision based upon the standards set forth below to issue or deny the certificate within thirty (30) days of the application. The applicant may appeal a denial to the planning and zoning board or historic resources preservation board, as applicable. The board may reverse the denial of the development review officer upon a finding that the application meets the standards of this section.

4.

Standards. The development review officer shall issue a certificate of conformity if the following standards are met:

A.

Severance or business damages relative to the remainder parcel would be reduced by the issuance of the certificate of conformity.

B.

A site plan for the remainder parcel has been prepared which minimizes the nonconformities caused by the eminent domain proceedings, and is otherwise consistent with all requirements of the LDRs.

C.

The remainder parcel can reasonably and safely function if redeveloped in accordance with the site plan described above.

5.

Landscape. All parcels subject to eminent domain proceedings must provide perimeter landscaping adjacent to public rights-of-way to screen vehicular parking and service and storage areas to the extent physically possible and deemed feasible by the site plan review staff. Landscaping shall be provided in areas of non-pedestrian or non-vehicular use.

6.

Duration. A certificate of conformity issued pursuant to this section shall automatically expire twenty-four (24) months from the date of issuance unless redevelopment of the remainder parcel in accordance with the site plan has been completed within said twenty-four-month period. However, an application for an extension of time in letter form may be submitted to the development review officer under circumstances such as (1) substantial completion of the landscaping per the site plan has been achieved, or (2) the delay in compliance with the approved site plan has been through no fault of the owner of the remainder parcel. Under no circumstances shall the extension of time exceed twelve (12) months. The decision of the development review officer shall be rendered within thirty (30) days of receipt of the letter requesting an extension of time. The decision may be appealed to the planning and zoning board or historic resources preservation board, as applicable. For purposes of these appeals, no application fee shall be charged. The board may reverse the denial for an extension of time and impose a new completion date upon a finding that the remainder parcel owner's failure to complete the project is through no fault of his/her own. Any subsequent, additional request for an extension of time shall be submitted directly to the board. The board shall determine whether an additional extension of time will be granted, using the criteria above to determine whether an additional extension of time will be granted.

7.

Enforcement. Noncompliance with the provisions set forth pursuant to the issuance of the certificate of conformity shall constitute a violation and is subject to those procedures set forth in Chapter 2, Article VI and Chapter 2, Article X of the City of Lake Worth Code of Ordinances.

g)

Repairs and maintenance . Except as otherwise provided herein, a nonconforming building or structure may be structurally repaired and maintained in the discretion of the owner. Any building or structure, or portion thereof, occupied by a nonconforming use may be structurally repaired and maintained but only to the extent required by law. Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or structure or any part thereof declared to be unsafe by any official charged with protection of the public safety, upon order of such official, provided that the amount of damage to the nonconforming structure does not exceed the provisions of subsection d) above.

h)

In the event of a natural disaster, explosion, fire, act of God or the public enemy, the development review officer may permit the reconstruction of any nonconforming legally permitted structure to the same or decreased nonconformity as existed immediately prior to the disaster, upon proof satisfactory to the development review officer of the configuration of the prior structure, and only in compliance with the Florida Building Code. An application for reconstruction of the structure shall be filed within twelve (12) months of the event of its destruction, unless the city commission authorizes the development review officer to extend the twelve-month time period city-wide.

(Ord. No. 2014-22, § 20(Exh. S), 9-9-14; Ord. No. 2014-31, § 2(Exh. D), 11-4-14)