§ 40 — NONCONFORMITIES

NONCONFORMITIES

NONCONFORMITIES SECTION 40 40.01 INTRODUCTION AND PURPOSE. It is the intent of this ordinance to require the discontinuance or removal of Nonconformities within specified time periods unless the city has determined to allow the nonconformity to continue only under limited circumstances in accordance with this section. To avoid undue hardship, nothing in this Ordinance shall be deemed to require a change of plans, construction, or designated use of any building for which a Building Permit has been issued and is still active and currently open prior to February 4, 2014 and for which actual construction has been initiated within six (6) months of the effective date of this ordinance and has carried on diligently to completion thereafter. “Actual construction” includes placing construction materials in permanent position and fastened in a permanent manner, and includes excavation or demolition or removal of existing Structures initiated preparatory to rebuilding, provided that construction of a Structure begins promptly thereafter and is part of a continuous construction process diligently pursued to completion. 40.02 TYPES OF NONCONFORMITIES. For purposes of orderly regulation, four types of Nonconformities are recognized under this ordinance: A. Nonconforming Lot of Record: A Lot of Record lawfully existing on February 4, 2014 the dimensions of which, subsequently do not meet the area or width requirements, or both, of this ordinance. B. Nonconforming Structure: Any Structure lawfully existing on February 4, 2014 but which subsequently does not comply with the bulk, placement and dimensional requirements of this ordinance. C. Nonconforming Use. The use of any land, lot, building, structure, or parts thereof, which lawfully existed on February 4, 2014 but which subsequently does not comply with all or some part of the use requirements of this ordinance. D. Nonconforming Occupancy. The presence or any structure, use, fixture, modification, or improvement to raw land that does not comply with the requirements of this or other municipal ordinances such as the size and configuration of parking and loading spaces, landscaping, signage, property maintenance, fire protection requirements, and the like. E. Nonconforming Apartment Complex. Any land, lot, building, structure, or parts thereof with an Apartment Complex use as regulated by this Ordinance, lawfully existed on February 4, 2014, and was built prior to October 1, 2016 but which does not meet density, area, bulk, placement, dimensional, size, configuration, parking, loading, landscaping, signage, property maintenance, fire protection, or other regulations as required in the Official Zoning Ordinance of the City of Ridgeland.

40.03 ADMINISTRATIVE CLASSES OF NONCONFORMITIES. For procedural and enforcement purposes, Nonconformities of any type shall be assigned to one of three administrative classes described in this subsection. Any Accessory Structure or Use shall automatically be assigned the nonconformity class of the main building or dominant use to which it pertains. A. Class A Nonconformities. Class A Nonconformities are those that do not conform to the strict application of this ordinance, but which, if allowed to continue, would not be contrary to the public health, safety or welfare of the city, and that are not likely to significantly depress the value of nearby properties. To minimize the burden of enforcing nonconformity regulations, this ordinance provides for three sub-classes of Class A Nonconformities: • Categorical Class A Nonconformities: nonconformities whose characteristics can reasonably be identified on a collective basis and whose impacts can be considered and determined to be acceptable without the need for site-specific evaluation. • Administrative Class A Nonconformities: these are similar to Categorical Class A Nonconformities, but require site-specific evaluation of minor potential impacts before they can be determined to be acceptable nonconformities through a simple administrative process. • Designated Class A Nonconformities: nonconformities where site- specific characteristics and impacts need to be considered through a public notice and hearing process. B. Categorical Class A Nonconformities: The following nonconformities shall be deemed Class A without the need for any review or approval process, unless changed under the reclassification procedure in Section 40.07. 1. Nonconforming Lots of Record. In any district in which single- family dwellings are permitted, Categorical Class A Nonconformity status shall apply to single-family dwellings and customary accessory buildings on any single nonconforming Lot of Record, notwithstanding limitations imposed by other provisions of this Ordinance. Such lots must be in separate ownership and not of continuous frontage with other lots in the same ownership. Categorical Class A Nonconformity status shall likewise apply to single-family Lots of Record with continuous frontage in single ownership prior to the enactment of this Ordinance and which remain in the same ownership (or if the lots are conveyed by inheritance or as a gift among family members) following enactment of this Ordinance. Such lots shall continue to be considered divided parcels; and the owner of such lots may erect single-family dwellings on each lot in districts where single-family dwellings are permitted. However, further division of such nonconforming lots of record shall

be prohibited, and the nonconforming status shall be lost if such lots change ownership except by inheritance or gift between or among family members. These foregoing provisions shall apply even though such single lot of record fails to meet the requirements for area or width that are generally applicable in the district, provided that the required front, rear, and side yard dimensions and other requirements of the proposed single-family residential use conform to the regulations in the district in which such single nonconforming lot of record is located. If a nonconforming Lot of Record is too narrow or too small to build a house and yet provide the required yards specified for a particular district, a Variance under Section 600.08 of this Ordinance is required. Categorical Class A Nonconformity status shall not apply to adjacent Lots of Record with continuous frontage that come into single ownership after the time of enactment of this Ordinance. Such lots shall be considered together as a single undivided parcel for the purposes of this Ordinance; and no portion of the combined parcel shall be used in a manner which diminishes compliance with the dimensional and yard requirements of this Ordinance, nor shall any division of any parcel be made that does not comply with this Ordinance. 2. Existing Class A Nonconformities. Unless changed by the procedures set forth herein, any Class A Nonconformity existing prior to February 6, 2001 under the zoning ordinance then in effect shall have a Categorical Class A Nonconformity status. 3. Existing Nonconforming Restricted Uses. The registration deadline for existing nonconforming Restricted Uses shall be extended to February 4, 2026, and the Class C conformity deadline for nonconforming Restricted Uses shall be extended to August 4, 2026. Failure to maintain a current Privilege License, operate in a legal manner, maintain all required permits, and maintain the facility in the manner and means required by the Property Maintenance Code of the City of Ridgeland shall result in immediate termination of the use. If the use/business closes or does not operate for any reason for a period of 30 days or longer, the use shall be terminated immediately. Existing nonconforming Restricted Uses shall also be subject to Section 40.09 Rules for Class B Nonconformities. 4. Nonconforming Apartment Complexes as defined in 40.02.E. C. Administrative Class A Nonconformities. The Director of Community Development may grant Administrative Class A Nonconformity status for

lots or structures under the same conditions and using the same procedures established for Variances that may be granted under Section 600.08.D, “Variances Granted by Director of Community Development or His Designee.” D. Designated Class A Nonconformities. Class A Nonconformities may be designated by the Mayor and Board of Aldermen, after application by any interested person or the Director of Community Development or his designee, upon findings that continuance thereof would not be contrary to the public health, safety or welfare, or the spirit of this Ordinance, that the use or structure does not and is not likely to significantly depress the value of nearby properties, 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 Ordinance with which the use or structure does not conform. 40.04 CLASS A DESIGNATION PROCEDURE; CONDITIONS: A written application shall be filed with the Director of Community Development or his designee 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 Mayor and Board of Aldermen to make a determination of the matter. The Mayor and Board of Aldermen may require the furnishing of such additional information as it considers necessary. The notice and hearing procedure before the Mayor and Board of Aldermen shall be the same as in the case of an application for a variance. The decision shall be in writing and shall set forth the findings and reasons on which it is based. Conditions shall be attached, including any time limit, 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 Ordinance. In considering an application for Designated Class A Nonconformity status or an application to revoke a previously assigned Class A status, the Mayor and Board of Aldermen may determine that the nonconformity should be assigned a Class B Nonconformity status and assigned an appropriate amortization period. Assignment to a Class B status shall be made if the Mayor and Board of Aldermen determines that the impacts of the nonconformity are more detrimental than those allowed for Class A Nonconformities, but that relegating the nonconformity to a Class C status would deprive the owner or occupants of the property of any reasonable use of the property, would violate the law, or would deprive the owner or occupants of a constitutionally protected right. 40.05 CLASS B NONCONFORMITIES. Any registered nonconformity not classified as Class A shall be classified as a Class B Nonconformity, and shall be subject to the amortization provisions of Section 40.12. 40.06 CLASS C NONCONFORMITIES. Any nonconformity that is not a Class A or Class B Nonconformity shall be deemed to be a Class C Nonconformity. This provision is self-effectuating without further action by the city.

40.07 CLASS A REVOCATION OR RECLASSIFICATION PROCEDURE. Any Class A status may 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. Any interested party may petition the city to revoke a Class A status by filing a request with the Director of Community Development or his designee. Such a request shall be processed through the public notice, hearing, decision-making, and appeal procedures in the same manner as an application for a Class A designation. Before revoking a Class A status, the Mayor and Board of Aldermen shall adopt written findings describing its reasons for revocation. 40.08 RULES FOR CLASS A NONCONFORMITIES. A. No Class A Nonconforming Use or Nonconforming Apartment Complex shall be resumed if it has been discontinued for a continuous period of at least 6 months or if it has been changed to a Conforming Use or conforming Apartment Complex for any period. No Nonconforming Use or Nonconforming Apartment Complex shall be changed to a different Nonconforming Use or enlarged so as to make use of more land area than used at the time of becoming nonconforming. No Class A Nonconformity which has been discontinued for a continuous period of at least 6 months shall be allowed to resume its use until the structure conforms to all of the City of Ridgeland’s Ordinances. B. No Class A Nonconforming Structure or Nonconforming Apartment Complex shall be reconstructed if damaged by fire or other casualty to the extent that the cost of reconstruction or repair exceeds 50 percent of the assessed valuation of such structure or building in a complex. Provided, however, in such an event, the Nonconforming Apartment Complex shall be allowed to reconstruct or repair so long as it is in full compliance with the regulations of this Ordinance, including but not limited to density, area, bulk, placement, dimensional, size, configuration, parking, loading, landscaping, signage, property maintenance, and fire protection and the adopted Building Code, the Property Maintenance Code, and other related Ordinances. C. No Class A Nonconforming Structure, Nonconforming Use, or Nonconforming Apartment Complex shall be used, altered, or enlarged in a way which increases its nonconformity. 40.09 RULES FOR CLASS B NONCONFORMITIES. Class B Nonconformities shall be subject to all of the rules as Class A Nonconformities (set out in Section 40.08), and in addition to those rules, shall be subject to the following: No Change or Enlargement. No Class B nonconforming use shall be changed to a substantially different nonconforming use, nor enlarged so as to make use of more land area than used at the time of becoming nonconforming.

Repairs and Maintenance. On any nonconforming structure and/or a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on wiring, or plumbing, to an extent not exceeding 10 percent of the current assessed value of the nonconforming structure and/or such structure containing a nonconforming use, provided that the cubic content existing when it became nonconforming shall not be increased. Unsafe Conditions. If a nonconforming structure and/or a structure containing a nonconforming use having a Class B designation becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located. This provision is intended to reinforce the currently adopted Building Code and Property Maintenance Code of the City of Ridgeland. 40.10 RULES FOR CLASS C NONFONFORMITIES. Within one year of February 4, 2014, all Class C Nonconforming Uses shall cease operation and be brought into compliance with this ordinance or removed. Further, any structure previously occupied or utilized as a Nonconforming Use in whole or in part shall either be converted to a conforming use, or shall be demolished. All Class C Nonconforming Structures and Occupancies shall cease any condition, operation, or occupancy that makes it a nonconformity within one year from the Notice issued by the City of Ridgeland during which time the Applicant may seek a Class A or B Designation or other remedies that may be available subject to the requirements thereof. 40.11 REGISTRATION OF NONCONFORMITIES. Except for Categorical Class A Nonconformities, all nonconformities, regardless of type, shall register by completing and submitting an original and one (1) copy of the “Application Packet For Registration of Nonconforming Use or Structures” to the Community Development Department of the City of Ridgeland, MS. If the Application Packet is mailed to the City, then there must be included one original and one copy, together with a self-addressed stamped envelope addressed to the Owner. The registrant shall provide such supporting information as the city may reasonably require as part of that registration. The Community Development Department shall date and sign the original and the copy, which shall be conclusive proof that the Application Packet was accepted for filing and the use or structure registered in accordance with the requirements of this Ordinance. Registration shall be effective upon filing the specified form with the Community Development Department, which shall not refuse to accept a proffered form on the basis that it is incomplete as long as the form identifies the owner of the property upon which the nonconformity is located and the property itself with sufficient particularity to determine the location and boundaries of the specific parcel(s) involved. A separate form shall be submitted for each lot of record, provided that where adjacent lots of record form a contiguous parcel for which a common registration is sought for a logically common development, a single form may be submitted.

The Community Development Department shall examine each registration for completeness, and shall notify the registrant either that the registration is complete, or that additional information is required to process the registration. Where additional information is required, the Community Development Department shall identify with particularity what information is required. The registrant shall have 60 days from the notice to supply the additional information. The registration shall state which nonconformity class status the registrant is seeking, and the registration shall serve as an application for a determination of such status. The Community Development Department shall evaluate all completed registrations, and shall advise the registrant of its determination that the nonconformity will be treated as one of the following: • Categorical Class A Nonconformity • Administrative Class A Nonconformity • Class B Nonconformity • Class C Nonconformity Any person (whether the registrant or a non-registrant interested party) may contest the determination of the Community Development Department, and such contest shall be considered under the same procedures established for considering Designated Class A Nonconformities. Any Nonconforming Use required to register under this ordinance that fails to do so within six (6) months of becoming a nonconformity shall be deemed to be a Class C nonconformity, and thereafter shall not be entitled to any benefits of Class A or Class B status unless expressly granted by the procedures established by this ordinance. Any Nonconforming Structure or Occupancy required to register under this ordinance that fails to do so within six (6) months of being given Notice from the City of Ridgeland of the nonconforming status shall be deemed to be a Class C nonconformity, and thereafter shall not be entitled to any benefits of Class A or Class B status unless expressly granted by the procedures established by this ordinance. Nonconforming Apartment Complexes as defined in 40.02.E are not required to register or re-register under this ordinance. Failure or neglect of the Owner to identify or register uses or structures which are non-conforming as defined in this Ordinance, or subsequent amendments thereto, shall not exempt such use or structures from the applications of this Ordinance and shall not toll or extend the time period for the termination of such use or structure.

40.12 AMORTIZATION OF CLASS B NONCONFORMITIES. A. All Class B Nonconformities shall cease or shall be brought into compliance with this ordinance upon the expiration of the period of time required to amortize the remaining economic life of such nonconformity calculated in accordance with the formula set forth in this Section 40.12, unless modified on appeal under Section 40.13. Further, any structure previously occupied or utilized as a nonconforming Use in whole or in part shall either be converted to a conforming use or demolished upon the expiration of the amortization period. B. Definitions for Amortization Formula The words, phrases and letters used in the Formula have the following meanings: “B” means the Base Unrecoverable Cost “AV” means the Assessed Valuation according to the Tax Rolls of the Madison County Tax Collector upon the effective date of this Ordinance “F-” (the capital letter “F” followed by the arithmetic minus sign “-“) means the Factors that Decrease Unrecoverable Costs, which shall include at a minimum the sum of the value of the raw land underlying the property and depreciation of improvements on the subject property utilizing straight-line depreciation. “F+” (the capital letter “F” followed by the arithmetic plus sign “+“) means the Factors that Increase Unrecoverable Costs, which shall include at a minimum the sum of the following factors: • The costs of Demolition and Restoration of the property; and • Value of any Improvements made to the property after the date of the last assessment for tax rolls and before the effective date of this Ordinance. “I” means Net Income after Expenses but before Income Taxes, averaged over three years “Y1” means the Preliminary Amortization Period “YAdj” means the Inflation Adjusted Amortization Amount “Y2” means the Final Amortization Period C. Statement of Amortization Formula Step 1 Calculate Base Unrecoverable Cost (B) B = AV – F- + F+ Step 2: Determine Net Income (I)

I =Net Income after Expenses but before Income Taxes Step 3: Calculate Preliminary Amortization Period (Y) Y1 = B/I Step 4: Calculate Inflation Adjusted Amortization Amount (YAdj) YAdj = B x (1 + (1.5% x Y1)) Step 5: Divide Inflation Adjusted Amortization Amount by Net Income to get Final Amortization Period Y2 = YAdj/I D. Example of Formula Applied to Values for Illustration: Step 1: Calculate Base Unrecoverable Cost: B = AV – F- + F+ In this example, for the Step 1 calculation of Base Unrecoverable Value, assume the following values: AV = $1,000,000 F- = $500,000 F+ = $100,000 Applying this to Step 1 of the Formula, Base Unrecoverable Value is calculated as follows: B = $1,000,000 – $500,000 + 100,000 B = $600,000 Base Unrecoverable Value = $600,000. Step 2: Determine Net Income: I = Net Income After Expenses but Before Taxes Net Income (I) can be determined by an analysis based upon publicly-available data for similar business operations in the geographic area, or by presentation by the Owner of audited financials of the actual property in question. In this example, for the Step 2 calculation of Annualized Income, assume the following values: Carry forward Base Unrecoverable Value from Step 1 Applying this to Step 2 of the Formula, Annualized Income is calculated as follows: I = $600,000 (10%) I = $60,000

Step 3: Calculate Preliminary Amortization Period: Y = B/I In this example, for the Step 3 calculation of Preliminary Amortization Period, use the values determined in Steps 1 and 2, as follows: Y1 = $600,000/$60,000 Y1 = 10 years Step 4: Calculate Inflation Adjusted Amortization Amount: YAdj = B x (1 + (1.5% x Y1)) YAdj = $600,000 x (1 + (1.5% x 10)) YAdj = $690,000 Step 5: Divide Inflation Adjusted Amortization by Income to get Final Amortization Y2 = $690,000/$60,000 Y2 = 11.5 years 40.13 APPEAL OF AMORTIZATION FORMULA. Any owner or occupant aggrieved by the application of the amortization formula or of the factors used in the formula’s calculation may appeal to the Mayor and Board of Aldermen on the basis of any one or more of the following grounds: • The formula fails to consider factors unique to specific use or property involved such that the calculated remaining economic life unreasonably understates the true remaining economic life of the nonconformity. • The data used for calculating the formula are inaccurate as applied to the nonconformity. • Financial conditions unique to the specific use or property involved make it unreasonable to apply the formula to the nonconformity. The burden of proof and persuasion for the appeal shall be on the appealing owner or occupant. In addition to showing the grounds described above, the appealing owner or occupant must demonstrate the specific different or additional factors that should be considered, the accurate date that should be used, or a different amortization methodology to calculate the remaining economic life of the nonconformity. The procedure for appealing the amortization formula shall be the same as used for considering a Variance, including the notice and hearing provisions.

40.14 EXISTING NONCONFORMITIES ARE NOT ENHANCED. A nonconformity existing at the time of the enactment or amendment of this ordinance shall not enjoy any greater right to continue its nonconforming status than it had prior to the enactment or amendment. It is the intent of this ordinance for preexisting nonconformities to be brought into compliance with the ordinance at least as quickly and as completely as they would have in the absence of an amendment. 40.15 RESERVED. 40.16 NONCONFORMING SIGNS. See Sign Ordinance of the City of Ridgeland for regulations concerning nonconforming signs. 40.17 REGULATIONS CONCERNING NONCONFORMING ACCESSORY USES AND/OR ACCESSORY STRUCTURES. The most restrictive regulation of the following regulations shall apply to nonconforming accessory uses and/or accessory structures: A. No nonconforming accessory use or accessory structure, or other structures incidental to a nonconforming use in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered. B. No nonconforming accessory use or accessory structure shall continue after the principal use or structure is terminated by discontinuance, damage, or destruction unless, such accessory use or accessory structure thereafter is made to conform to the standards for the zoning district in which it is located. C. Any part of a nonconforming accessory use or accessory structure which is destroyed by fire or other casualty to the extent that the cost of reconstruction or repair exceeds 50% of the assessed value (per the Madison County Tax Assessor) prior to the casualty of such structure shall not be restored. 40.18 REPAIRS AND MAINTENANCE OF NONCONFORMING ACCESSORY USES, ACCESSORY STRUCTURES, AND/OR OTHER STRUCTURES. On any nonconforming accessory use, nonconforming accessory structure, or other structures incidental to a nonconforming use work may be done in any period of 12 consecutive months on ordinary repairs, or on wiring, or plumbing, to an extent not exceeding 10 percent of the assessed value (per the Madison County Tax Assessor) of the nonconforming accessory use, nonconforming accessory structure, or other structures incidental to a nonconforming use provided that the cubic content or assessed value existing when it became nonconforming shall not be increased.

40.19 ACCELERATED REMOVAL OF NONCONFORMITIES. The city may, by ordinance, designate specific nonconformities which, by their nature or location, are so detrimental to the public health, safety or welfare of the city, or are so likely to significantly depress the value of nearby properties, that their removal or discontinuance should be accelerated earlier than otherwise provided in this ordinance. Such nonconformities may be designated on a site-specific basis or by specific characteristics applicable to multiple sites or uses. The accelerated removal or discontinuance of such nonconformities shall be under the schedule and conditions provided in the ordinance designating them. 40.20 SUBORDINATION OF NONCONFORMING USE REGULATIONS FOR CONDITIONAL USES AND VARIANCES. A. Where a Use or Structure has been permitted as a Conditional Use or has been granted a Variance, the provisions of the Conditional Use or Variance shall control over the nonconforming use regulations in this ordinance to the extent of any conflict between or among them. B. Where a Use lawfully existed as of February 4, 2014, and is allowed by Conditional Use, but which lacks a Conditional Use Permit issued by the Mayor and Board of Aldermen, such shall not be deemed a nonconforming use, but rather shall be considered to exist as a permitted use. C. Government agency property acquisitions. If a structure or occupancy does not comply with the requirements of this Ordinance solely as a result of an acquisition of land by a government agency for a public purpose, then such structure or occupancy on land not acquired by the government shall be deemed conforming. 40.21 NO VESTED RIGHT IN NONCONFORMING STATUS. Nothing in this ordinance shall be construed to grant any owner or occupant a vested right to a nonconforming status, regardless of the type or class assigned to the nonconformity. The benefits granted to a nonconformity in this ordinance shall be construed as exceptions to the general provisions of the ordinance. Such exceptions are made as a reasonable accommodation to property owners and occupants to avoid unnecessary adverse impacts on them without significantly diminishing the long term public benefit of the full enforcement of this ordinance. Such exceptions are made with the expectation that the property, structure, use, or occupancy involved will be ultimately brought into compliance with the general provisions of this ordinance.