§ 3.06. Nonconformance.

3.06.01. Purpose: Within the districts established by this Ordinance or amendments thereto, there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this Ordinance was enacted, amended or otherwise made applicable to such lots, structures or uses, but which do not conform to the regulations of the district in which they are located. it is the intent of this Section of the Ordinance to permit such nonconformance to continue, under regulations herein contained, until the same are removed, but not to encourage their survival.

3.06.02. Nonconformance Incompatible: Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.

3.06.03. Enlargement Prohibited: It is further the intent of this Ordinance that nonconforming uses shall not be enlarged upon, expanded, or extended, nor be used as a basis for adding other structures or uses prohibited elsewhere in the same district. Except as herein provided, no nonconforming use of land or buildings nor any nonconforming structure shall be enlarged, changed, altered, or repaired except in conformity with the regulations contained in this Article.

3.06.04. Nonconformance Status: Any use or structure which does not conform with the regulations contained in the zoning district in which it is located is deemed to be a legal nonconforming use when:

A.

The use or structure was in existence and lawfully operating at the time of the passage of this Ordinance, and has since been in regular and continuous use; or

B.

The use or structure was lawfully being used at the time of the adoption of any amendment to this Ordinance and by such amendment was placed in a district where it is not otherwise permitted; or

C.

The use or structure was in existence at the time of annexation to the City of Santa Fe and has since been in regular and continuous use.

3.06.05. Continuing Lawful Use of Property:

a.

The lawful use of land existing at the time of the passage of this Ordinance, although it does not conform to the provisions herein, may be continued until termination is required in accordance with the provisions of this Article. During the period between designation as a nonconforming land use activity and notification of a prescribed termination date, if discontinuance occurs, any future use of the premises must be in conformity with the general provisions of this Ordinance.

B.

A legal nonconforming use, when discontinued or abandoned, cannot be resumed. Prima facie evidence of continuance or abandonment is as follows:

1.

When land associated with a legal nonconforming use ceases to be used in such a manner for a period of ninety (90) days.

2.

When a structure associated with a nonconforming use ceases to be used in such a manner for a period of ninety (90) days.

C.

Abandonment of a nonconforming use shall be determined by the Board of Adjustment and may include a consideration of the following factors in addition to the prima facie evidence of abandonment cited in Subsection B., above:

1.

The intent of the user or owner; or

2.

The apparent act of discontinuance as supported by evidence submitted to the Board of Adjustment.

3.06.06. Development of Nonconforming Lots: Nonconforming lots which do not meet the minimum area, width, or depth requirements for the district in which they are located may be used for any lawful purpose permitted within the zoning district in which they are located. However, the use of such a lot shall be subject to a determination by the Zoning Officer that a good faith effort has been made to follow all rules and regulations associated with this Ordinance.

3.06.07. Proof of Legal Nonconformance: It shall be the responsibility of the owner, operator, or occupant to provide proof that a nonconforming structure or use of land or building existed prior to the enactment of this Ordinance.

3.06.08. Restoration of Damaged Property: Nothing in this Article shall prevent the restoration of a building destroyed to the extent of not more than fifty (50) percent of its reasonable value by fire, explosion, or other casualty or Act of God, or a public enemy, nor the continued occupancy or use of such a building or part which existed at the time of such destruction. However, the preceding allowance for the restoration of damaged nonconforming property has no bearing on an approved amortization schedule for the termination of nonconformance as described in this Article.

3.06.09. Substitution of Nonconforming Uses or Structures Prohibited: No nonconforming use or structure may be substituted for any other nonconforming use or structure. Only uses permitted by right and approved Conditional Uses may be substituted for nonconforming uses or structures.

3.06.10. Enlargement of Nonconformance Prohibited: No nonconforming use or structure may be extended or enlarged, and no nonconforming use of land may be enlarged or increased, to occupy a greater area of land than was occupied at the time the site achieved nonconforming status.

3.06.11. Survey and Certification: The Zoning Officer is responsible for the production of an annual survey and report on the status of zoning nonconformance in Santa Fe. The Officer's report shall be sent to the Planning and Zoning Commission at its first regular meeting of the official municipal year. The Commissioner shall review the report and shall approve or reject the certification of each site that the Officer has identified as being nonconforming. Once certified by the Commissioner as nonconforming, a site shall be given an alpha-numeric designation for future reference. Upon receipt of the approved certified report from the Commissioner, the Officer shall notify each tenant and property owner of such nonconforming status.

3.06.12. Termination of Nonconformance: The right to use a parcel of land or a structure in a nonconforming manner shall terminate under any of the following circumstances:

A.

When the use is abandoned. (See 3.06.05 "Continuing Lawful Use of Property")

B.

When any provision of this or any other Ordinance of the City of Santa Fe is violated.

C.

When a nonconforming use is changed to a conforming use by means of an amendment to the zoning text or map.

D.

When the structure in which a nonconforming use is housed, operated, or maintained is damaged to the extent of more than fifty (50) percent of its value.

E.

When the right to maintain or operate a nonconforming use has been terminated in accordance with an amortization schedule established by the Board of Adjustment as described in this Article.

3.06.13. Amortization of Nonconformance:

A.

Responsibility of the Board of Adjustment: It shall be the responsibility of the Board of Adjustment to provide a program for the orderly and fair termination of all nonconforming land uses and structures in Santa Fe. The board shall cooperate with the Zoning Officer in reviewing the status of certified nonconforming uses and structures for amortization scheduling and termination.

B.

Public Hearing Required: Prior to the establishment of an amortization schedule for a nonconforming land use or structure, the Board of Adjustment shall hold a public hearing. Notice of the hearing shall be given in written form to the tenant and owner of the certified nonconforming use or structure and shall be published in a newspaper of general circulation in Santa Fe. The notice shall state the time and the place of the hearing. The notice shall appear in said newspaper at least fifteen (15) days prior to the date set for the public hearing.

C.

Factors to be Used by the Board of Adjustment in Amortization Scheduling: In determining the amortization schedule for the termination of a certified nonconforming land use or structure, the Board of Adjustment shall consider the following factors:

1.

The length of time required for the user or owner of the property to amortize his/her capital investment.

2.

The general condition of the site and the facilities.

3.

The length of time that the property has been used or owned.

4.

Conforming land use activities that would be permitted on the site.

5.

The land use activities surrounding the site in question.

6.

The Comprehensive City Plan of the City of Santa Fe and the impact that such existing nonconformance has on plan implementation.

E.

Notification and Recordation: The Board of Adjustment shall send a copy of all approved amortization schedules for the termination of nonconformance to the owners and lessees of affected sites. The termination date and the reasons for the schedule term shall be clearly described in the notification. The Zoning Officer shall keep a permanent record of all amortization schedules for the City.

F.

Violation of an Amortization Schedule: The failure of an owner or a tenant of a certified nonconforming land use or structure to comply with the termination date of a recorded amortization schedule shall constitute a violation of this Ordinance and shall be punishable in accordance with the terms of Article 13, of this Ordinance.

3.06.14. Small, Undersized, or Oddly Shaped Lots: A small, undersized, or oddly shaped lot which was platted or otherwise legally recorded prior to the adoption of this Ordinance may be used for any lawful purpose permitted within the zoning district in which it is located. However, the design, layout, and use of such a lot shall be subject to a de-termination by the Zoning Officer that a good faith effort has been made to follow the rules and regulations associated with this Ordinance as closely as possible.