Chapter 1 General Provisions Part 3 Nonconformance

1.3.1 Use

1. A nonconforming use is an established activity which lawfully existed at the time of the enactment of any zoning regulation which would not permit such activity.
2. A nonconforming use may be continued until it is abandoned notwithstanding the sale of the land parcel on which the nonconforming use exists; but a nonconforming use shall not be enlarged, expanded or changed except as expressly permitted by KRS 100.253 and by Chapter 1 Part 3.
3. There shall be no increase in the floor area or the land area devoted to a nonconforming use or other enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation that made the use nonconforming was adopted.
4. Subject to the limitations and restrictions imposed by items A through C of Chapter 1 Part 3, the Board of Zoning Adjustment may permit a change in the nonconforming use to another nonconforming use only if the new nonconforming use is in the same or more restrictive classification and upon finding that the new nonconforming use will be no more odious or offensive to surrounding properties than the first nonconforming use. When the Board of Zoning Adjustment permits a change from one nonconforming use to another nonconforming use pursuant to this paragraph, it may impose such conditions upon such new nonconforming use as it finds are necessary to preserve the character of the neighborhood, to minimize nuisances to surrounding properties, and to protect the value of surrounding properties.
5. Notwithstanding any provision in Chapter 1, Part 3 to the contrary, a residential structure located in an industrial district may be expanded if (1) the expansion does not increase the number of dwelling units on the subject property and (2) the expansion would be permitted if the existing structure were located in an R-5 Residential district.
6. ABANDONMENT. The abandonment of a nonconforming use terminates the nonconforming use status. The burden of proof in a hearing before the appropriate Board of Zoning Adjustment on whether a nonconforming use has been abandoned shall be on the party asserting that the nonconforming use has been abandoned. However, a showing that the subject property has not been regularly used for the purposes for which the nonconforming use status is claimed for a period of one year shall create a presumption of such abandonment, and thereupon the burden of proof shall shift to the party asserting that the nonconforming use has not been abandoned. The Board may accept any substantial evidence sufficient to show that the nonconforming use has been discontinued for a period of one year or more. To rebut the presumption, the property owner must show by clear and convincing evidence that:
   1. the property owner has undertaken to reinstate the discontinued nonconforming use on the property by such acts as would be undertaken by a reasonable person with the intent to reinstate said nonconforming use; and
   2. there is a reasonable prospect that the nonconforming use will be reinstated in the foreseeable future.

1.3.2 Structures

A nonconforming structure is a building or structure the size, dimension, design, or location of which was lawful prior to the adoption, revision, or amendment of the zoning regulations, but which fails to conform to the requirements of the zoning regulations applicable to the property by reasons of such adoption, revision, or amendment.

There shall be no change of a nonconforming building or structure that would create nonconformance with regulations beyond that existing at the time the nonconformity began. A nonconforming structure may be expanded only as allowed by the following:

A nonconforming structure, which is designed for and devoted solely to uses permitted by the district in which it is located, may be expanded in a manner which does not increase the nonconforming aspect of such structure.

Existing nonconforming structures in the floodway shall not be expanded but may be otherwise modified, altered or repaired, providing such measures incorporate flood-proofing devices and comply with the provisions of all applicable statutes, ordinances, and regulations pertaining to floodplain management.

A nonconforming structure may be altered to the extent necessary to comply with a lawful order of governmental officials.

1.3.3 Lot

A nonconforming lot is a lot that was lawfully created prior to the adoption of the zoning regulations and being of a smaller minimum lot area or width than required by the regulations for the district in which the lot is located. A nonconforming lot may be used in accordance with the other applicable restrictions of this Land Development Code, but changes to the lot that create greater nonconformity with the minimum lot area are permissible only in accordance with the provisions of Section 7.1.85.

1.3.4 Parking

Parking facilities that were legally in existence prior to the adoption or amendment of motor vehicle parking regulations, but which do not conform to current motor vehicle parking requirements of this Land Development Code, shall not be reduced below the minimum number of spaces required or increased above the maximum number of spaces allowed by applicable motor vehicle parking regulations. A use or structure that is legally nonconforming due to inadequate parking spaces may be altered if the additional parking spaces required by this Land Development Code are provided.

1.3.5 Signs

Any sign legally in existence on the effective date of any zoning regulation that does not permit such signs may continue in existence as a matter of right. Such nonconforming sign may be maintained and repaired on the same property so long as the size, including the area and height, is not increased beyond the existing size. A nonconforming sign cannot be altered in any way so as to make it less in compliance with existing regulations, such as by adding moving parts or illumination.

At such time as any structural element of a nonconforming sign is replaced, the sign must be brought into compliance with the requirements of current regulations except that a nonconforming business sign may be replaced by another nonconforming sign, provided that all nonconformance in area, height, and size that is to be changed is reduced by fifty percent (50%) of the difference between the existing nonconforming sign and what the regulation allows. Replacement of structural elements in this context means the disassembly and subsequent reassembly or the substantial alteration of the pole, base, or frame.

1.3.6 Removal

Voluntary demolition of a nonconforming structure, other than a nonconforming business sign, or a structure housing a nonconforming use nullifies the nonconforming rights to such use or structure. A nonconforming structure or a structure housing a nonconforming use that has been involuntarily removed or destroyed retains its nonconforming rights for a period of one year. Failure to re-establish the use or structure within one year nullifies nonconforming rights to such use or structure. Re-establish, as used in Chapter 1 Part 3, shall mean that necessary permits and approvals have been obtained or have been applied for and that binding contracts for the construction of the main building or other improvement have been let; or in absence of contracts that the main building or other improvement is under construction to a substantial degree, or that prerequisite conditions involving substantial investment are under contract, in development, or completed. When construction is not a Part of the use, re-established shall mean that the use is in operation.