14-2-406 DETERMINATION OF NONCONFORMING STATUS

Burden of Proof. In all cases, the property owner shall have the burden of proving by a preponderance of evidence that a lot, structure, use or other circumstance which does not conform to the provisions of this Title was legally established. A. A preponderance of evidence is evidence which is more credible and convincing than evidence offered in opposition to it. B. Evidence offered to prove a lot, structure, use, or other circumstance was legally established may include, but is not limited to: a. The date when the circumstance was created; b. Copies of applicable zoning, building, or other code provisions in effect at the time of creation; c. Documents showing the nonconforming circumstance was authorized, such as building permits, letters, and meeting minutes of governmental bodies where the circumstance was discussed and/or authorized; d. Property inspection reports which indicate the degree that the nonconforming circumstance complies with applicable codes in effect at the time of creation; and e. Affidavits of persons with personal knowledge of the circumstances of creation. C. If a previously existing land use code is applied to a claimed nonconforming circumstance, and no provision of such code would have allowed such circumstance, it shall be prima facie evidence that the nonconforming circumstance was not legally established. D. If when established, a lot, structure, use, or other circumstance did not conform to the provisions of applicable land use code provisions, the fact that it has been occupied, used, or existed for a considerable period of time shall not be a factor in determining whether the circumstance should be deemed legally established. E. Abatement or Compliance. If a property owner is unable to demonstrate that a nonconformity was legally established, it shall be deemed illegal and shall be abated or brought into conformance with applicable provisions of this Title. Abatement or compliance shall be achieved within thirty (30) days, unless the work which must be undertaken to achieve compliance cannot be accomplished in that time period. In such case the owner of the property shall enter into a legally binding agreement wherein the owner agrees to a schedule to achieve conformity as soon as reasonably practicable, so long as compliance is achieved within six (6) months.