(A)

Noncomplying structure means any building or structure that existed prior to the effective date of any change in the zoning regulations or restrictions, but which thereafter, by reason of such change, is not in compliance with the zoning regulations or restrictions then in effect.

(B)

A building on a lot that does not meet the current zoning requirements for residential use, that was originally constructed or principally used prior to June 24, 1992 as a residence, may be reverted from commercial use to a residential use and shall be a noncomplying structure provided that:

(1)

The proposed residential use is permitted in the zone or is located in a building which faces the north side of the 1400 or 1500 block of King Street, or the south side of the 1600 block of King Street, which is setback from the front property line and has a first floor at least three feet above grade at the front building wall;

(2)

The proposed residential use contains a number of dwelling units equal to or less than previously existed on the property;

(3)

Since the most recent conversion to a commercial use, or since June 24, 1992, whichever is more recent, there has been no expansion to the structure and no changes to the lot of record that increase the degree of noncompliance for a residential use; and

(4)

Since the building was last a residential use, the number of parking spaces has not been reduced notwithstanding the requirements to provide parking in section 8-200.

(C)

The term noncomplying structure does not include a structure that was grandfathered under prior law.

(D)

In the event a nonconforming use is located in a noncomplying structure, the provisions of sections 12-204, 12-205, 12-207, 12-208, and 12-209 shall apply.

(E)

A structure located on a parcel that is reduced in size by virtue of the exercise of eminent domain shall be considered a noncomplying structure if the reduction in parcel size is the cause of such noncompliance and the structure preexisted the reduction in size.

Noncomplying structures shall be permitted to continue indefinitely and shall be considered legal structures, but subject to the following restrictions:

(A)

Expansion. No noncomplying structure may be physically enlarged or expanded unless such enlargement or expansion complies with the regulations for the zone in which it is located.

(B)

Reconstruction. If a noncomplying structure is destroyed, demolished or otherwise removed, it may be reconstructed provided that there is no increase in the floor area ratio, density, height or degree of noncompliance which existed prior to such destruction.

(C)

Repairs and maintenance. A noncomplying building may be remodeled, renovated, maintained, repaired and altered so long as such work complies with section 12-102.

(D)

Residential reuse. A building which faces the unit through 1400 block of King Street and which is a noncomplying structure because it exceeds the floor area ratio of the KR zone, may be converted from nonresidential to same residential use, notwithstanding any requirement of the KR zone applicable to residential uses, provided that a special use permit is approved to allow such conversion.

(Ord. No. 4273, § 1, 10-19-02; Ord. No. 5222, § 1, 4-13-19; Ord. No. 5300, §§ 20, 21, 10-17-20; Ord. No. 5447, § 4, 7-5-22)

(A)

Nonconforming use means any use that lawfully existed prior to any change in the zoning regulations or restrictions, but which thereafter, by reason of such change, is not in conformity with the zoning regulations or restrictions then in effect.

(B)

The provisions of this section 12-200 apply only to nonconforming uses, not to structures or to noncompliance that arises from a failure to conform to the provisions of this ordinance relating to height, floor area ratio, density, yard, setback or open space.

(C)

The term nonconforming use does not include a use that does not comply with the zoning regulations or restrictions by reason of the changes in such regulations or restrictions enacted on June 24, 1992 (see section 12-300, below) nor to one that was grandfathered under prior law.

Any nonconforming use, lawfully existing at the time of the passage of a zoning ordinance, may be continued as such subject to the provisions of this section 12-200, it being the intent of the city to provide for the eventual elimination of all nonconforming uses.

In case a nonconforming use shall be abandoned for 12 months, then such nonconforming use shall terminate and the use of the property shall revert to a conforming use of the zone in which it is located. This section 12-203 shall not apply where the nonconformance is occasioned only by variation in off-street parking requirements.

In the event that a structure containing a nonconforming use is damaged to the extent of more than 60 percent of its reasonable replacement value, then such nonconforming use shall terminate and the use of the property shall revert to a conforming use of the zone in which it is located. In the event that there is a dispute as to whether the property has been damaged to the extent of more than 60 percent of its reasonable replacement value, the extent of the damage shall be determined by the average of the estimates of damage and based upon the cost of restoration as furnished by three independent qualified contractors, one of whom shall be selected by the owner, one of whom shall be selected by the city, and a third to be selected by the first two mentioned contractors.

This section 12-204 shall not apply where the nonconformance is occasioned only by variation in off-street parking requirements.

Whenever a nonconforming use is contained in two or more buildings or structures all under single ownership and operation and on one tract of land at the time at which any such use first became nonconforming, the uses in all such buildings and structures shall in the application of the provisions of this section 12-205, be treated as a single nonconforming use, so long as they remain under single ownership.

(A)

When special use permit required. Except as provided in section 12-206(B), a nonconforming use may be changed with a special use permit to another use in the same zone classification that applied to the nonconforming use immediately prior to the time such use first became a nonconforming use. Such special use permit may be approved by the council after it has determined whether or not the desired use in each instance would be in the best interests of the health, safety and general welfare of the public. A nonconforming use may be continued in the form of a different trade, business or activity provided such trade, business or activity is within the scope of the use as listed in the ordinance existing immediately prior to the time the nonconforming use first became a nonconforming use.

(B)

Change back to less restricted use. Whenever a nonconforming use has been changed to a more restricted or conforming use, such use shall not thereafter be changed to a less restricted use. In the application of this provision, a use requiring a special use permit by the city council shall be considered to be a more restricted use than uses allowed in the same zone without such permit.

No nonconforming use shall be extended, enlarged or added to unless such use is changed to conform to the use regulations prescribed for the zone in which it is situated.

(A)

In all residential zones, every nonconforming commercial or industrial use shall be removed or converted and the building, structure or land thereafter used only for such uses as are permitted in the zone in which the building or structure is located, within 40 years of December 28, 1951, or within 40 years of the date on which such building becomes nonconforming.

(B)

Notwithstanding the provisions of section 12-210(A), any nonconforming commercial use in a building or structure zoned for residential use may continue following December 28, 1991, subject to the following provisions:

(1)

The owner or operator of such nonconforming commercial use may apply for a special use permit to continue such use, pursuant to section 11-500 and this section 12-210(B).

(2)

The granting of such special use permit shall constitute authority for the applicant and any other persons expressly authorized therein to continue the commercial use beyond December 28, 1991, subject to such terms and conditions as council may provide in granting the special use permit; provided, that no such permit may authorize any increase in the size or intensity of the commercial use greater than that which existed on June 27, 1989, or any change to a less restrictive use than that which existed on June 27, 1989, or excuse compliance with the provisions of section 12-303.

(3)

When an application for a special use permit under this section 12-210(B) is considered, the following criteria shall apply in addition to those set forth in section 11-504:

(a)

The degree to which the commercial use serves the nearby neighborhood;

(b)

The degree to which the commercial use is compatible with existing uses in the nearby neighborhood; and

(c)

The degree to which the commercial use enhances the nearby neighborhood.

(4)

City council may grant a special use permit under this section 12-210(B) if it determines that the commercial use serves the nearby neighborhood, is compatible with existing uses in the nearby neighborhood, enhances the nearby neighborhood, and complies with the standards for approval set forth in section 11-504.

(C)

Any nonconforming commercial use for which a special use permit has been approved pursuant to section 12-210(B) may be changed to another commercial use authorized, by right or with a special use permit, in the zone classification in which such nonconforming commercial use is first permitted (i.e., in the most restrictive zone classification in which such use is a permitted use) in the zoning code in effect at the time such use first became a nonconforming use, or to a more restrictive use, only if, city council, after making the determinations required by section 12-210(B)(4), grants a special use permit authorizing the changed use.

(D)

To the extent that any other provisions of this section 12-200 are inconsistent with the provisions of this section 12-210 or with the terms and conditions of any special use permit granted hereunder, the provisions of this section 12-210 or the terms and conditions of such permit, as the case may be, shall be controlling.

(E)

Notwithstanding the provisions of sections 12-201 through 12-209, any multi-unit dwelling, which is classified as a nonconforming use as defined in section 12-201 may be reclassified as a noncomplying use, subject to the provisions of this section 12-210(E):

(1)

The owner or operator of such a nonconforming use may apply for a special use permit to reclassify such use as provided in section 11-500 and this section 12-210(E).

(2)

The granting of such special use permit shall constitute the reclassification of such multi-unit dwelling from nonconforming use to noncomplying use status, subject to such terms and conditions as council may provide in granting the special use permit, and subject to section 12-300, to the extent adopted by city council in approving the special use permit; provided that no such permit may authorize any increase in the size or intensity of such multi-unit dwelling greater than that which existed on June 24, 1992, or any change to a less restrictive use than that which existed on June 24, 1992.

(3)

When an application for a special use permit under this section 12-210(E) is considered, the following criteria shall apply in addition to those set forth in section 11-500:

(a)

The degree to which the multi-unit dwelling is compatible with existing uses in the nearby neighborhood; and

(b)

The degree to which the multi-unit dwelling provides diversity in the housing stock available within the city; and

(c)

The degree to which the reclassification of such multi-unit dwelling will serve to promote the retention of a use compatible with existing uses in the nearby neighborhood and the provision of diversity in the housing stock available within the city.

(4)

City council may grant a special use permit under this section 12-210(E) if it determines that the multi-unit dwelling is compatible with the existing uses in the nearby neighborhood; provides diversity in the housing stock available in the city; promotes the retention of a use compatible with existing uses in the nearby neighborhood and the provision of diversity in the housing stock available within the city; and complies with the requirements of section 11-500.

(5)

To the extent that any other provisions of this section 12-200 are inconsistent with the provisions of this section 12-210(E) or with the terms and conditions of any special use permit granted hereunder, the provisions of this section 12-210(E) or the terms and conditions of such permit, as the case may be, shall be controlling.

The nonconforming use of land, not involving a main building, shall be discontinued within two years of the date on which such use became nonconforming.

(A)

Promptly upon becoming aware of the existence of a nonconforming use, the director shall notify the property owner and, if different, the property operator of the nonconforming status of such use. The nonconforming use shall be discontinued on or before the expiration of a period of seven years from the date of such notice, unless, prior to the expiration of such period, a special use permit which authorizes the continuation of the nonconforming use has been approved, or the seven-year period has been extended by the city council, pursuant to the following:

(1)

The owner or operator of the nonconforming use may apply for a special use permit to continue such use, pursuant to section 11-500 and this section 12-214.

(2)

The granting of a special use permit under this section 12-214 shall constitute authority for the applicant and any other persons expressly authorized therein to continue the use beyond the expiration of the seven-year period, subject to such terms and conditions as council may provide in granting the special use permit; provided, that no such permit may authorize a change to a different nonconforming use than that which existed on the date of notification, or any increase in the size or intensity of the use greater than that which existed on the date of notification, or excuse compliance with the provisions of section 12-303.

(3)

When an application for a special use permit under this section 12-214 is considered, the following criteria shall apply in addition to those set forth in section 11-504:

(a)

The degree to which the use serves the nearby neighborhood; and

(b)

The degree to which the use is compatible with the uses in the nearby neighborhood.

(4)

In the case of a conflict between the general nonconforming use provisions of section 12-200, the more specific provisions of this section 12-214, or the terms and conditions of a special use permit granted under section 12-214(A), the special use permit shall prevail over the provisions of section 12-200 and section 12-214(B), and the provisions of section 12-214 shall prevail over those of section 12-200.

(5)

No later than the expiration of the seven-year period established pursuant to this subsection, the owner or operator of a nonconforming use may seek from city council an extension of the date by which it must come into conformity with this section 12-214 by filing with the director a petition which sets forth in detail the reasons why a fair and reasonable return on the investment in such nonconforming use, made by the petitioner prior to the date of notification, cannot be obtained prior to the expiration of the seven-year period. Following a public hearing, council may extend the seven-year period only if it finds that a strict application of the expiration date will deny the petitioner the opportunity to realize a fair and reasonable return on the investment in the nonconforming use made by the petitioner prior to the date of notification, in which case council shall extend the expiration date by the minimum time which it determines will provide such opportunity to the petitioner.

(B)

Any nonconforming use existing on (May 16, 1998) shall comply with the following rules regarding repairs, improvements and alterations to the building and the use, unless a special use permit has been granted pursuant to section 12-214(A) which provides otherwise:

(1)

No alteration to a building which directly prolongs the life of a nonconforming use shall be permitted.

(2)

Trade fixtures, such as refrigerator cases, kitchen equipment and other fixtures used in the business, may not be replaced or upgraded, although ordinary repairs and maintenance to trade fixtures is permitted.

(3)

Building components, such as HVAC equipment, electrical service, siding, shingles and roofing, may be repaired, replaced or upgraded.

(C)

In the absence of any contrary provision in a text or map amendment, the provisions of this section 12-214 shall also apply to any nonconforming use created after (May 16, 1998).

(D)

Reserved.

 Any day labor agency in existence on October 7, 2003, in a zone in which such use is neither a permitted or special use permit use, or in a zone in which such use is a special use permit use but for which a special use permit has not been granted, shall be deemed a nonconforming use and shall be discontinued on or before a date 12 months from the date on which the use was first notified of its nonconforming status, unless it obtains a special use permit which authorizes its continuation subject to the following:

(A)

Promptly upon learning of the existence of a day labor agency categorized as a nonconforming use under this section, the director shall notify the property owner and, if different, the owner or operator of the nonconforming status of the use and that the use must cease operations, or if permitted by the applicable regulations of this ordinance, obtain a special use permit approval prior to the expiration of 12 months from the date of the notice.

(B)

No later than the expiration of the applicable 12-month time period, the property owner or owner or operator of any such nonconforming day labor agency may seek from city council an extension of the date by which it must come into conformity with this section 12-215 by filing with the director a petition which sets forth in detail the reasons why a fair and reasonable return on the investment in such day labor agency made by the petitioner prior to October 7, 2003, cannot be obtained prior to the expiration of the 12-month period.

(C)

Council shall conduct a public hearing on any such petition, prior to which the director shall provide notice in accordance with the provisions of section 11-300 of this ordinance.

(D)

Following the hearing, council may extend the 12-month period only if it finds that a strict application of that time period will deny the petitioner the opportunity to realize a fair and reasonable return on the investment in the nonconforming day labor agency made by petitioner prior to October 7, 2003, in which case council shall extend the date to a time which it determines will provide such opportunity to the petitioner.

(A)

Notwithstanding any contrary provision of this ordinance, any electrical power generating plant in existence on December 18, 2004, which produces power through the combustion of coal, and is located in a zone in which such use is neither a permitted or special use permit use, or in a zone in which such use is a special use permit use but for which a special use permit for the entire use, including power generation, has not been granted, shall be deemed a nonconforming use, and shall be subject to abatement as provided in section 12-214(A) of this ordinance.

(B)

Any nonconforming use subject to this section 12-216 shall comply with the following rules regarding repairs, improvements and alterations to the building and the use, unless a special use permit has been granted pursuant to Section 12-214(A), which provides otherwise:

(1)

No alteration to a building which directly prolongs the life of the nonconforming use shall be permitted.

(2)

Fixtures used in connection with the generation of power, such as turbines, generators, boilers, smokestacks, fuel or ash receiving or handling facilities, control systems and pollution control equipment, may not be installed, replaced or upgraded, although ordinary repairs and maintenance to such fixtures as existed on December 18, 2004, is permitted; provided, however, that the installation, replacement or upgrade of pollution control equipment may be permitted if approval therefor is obtained by special use permit issued pursuant to the section 11-500 of this ordinance.

(3)

Ordinary repairs and maintenance to building components, such as HVAC equipment, electrical service, siding, shingles and roofing, are permitted.

(Ord. No. 3621, § 1, 4-17-93; Ord. No. 4001, §§ 1—3, 5-16-98; Ord. No. 4049, §§ 4, 5, 5-15-99; Ord. No. 4078, § 2, 10-16-99; Ord. No. 4328, § 5, 1-24-04; Ord. No. 4337, § 1, 2-21-04; Ord. No. 4366, §§ 1, 2, 12-18-04; Ord. No. 5303, § 9, 10-17-20; Ord. No. 5447, § 4, 7-5-22; Ord. No. 5515, § 11, 12-16-23)

(A)

Noncomplying use means the use of any building, structure or land that was lawfully existing immediately prior to June 24, 1992 but which is not in compliance with the zoning regulations or restrictions adopted on June 24, 1992. It is the express intent of this section 12-300 that no use shall be deemed a nonconforming use if its lack of compliance is occasioned solely by the zoning regulations adopted on June 24, 1992.

(B)

The term noncomplying use does not include:

(1)

A use which existed as a lawful nonconforming use (see section 12-200, above) or as a grandfathered use immediately prior to June 24, 1992; or

(2)

A complying use located in a building or structure that does not comply with the provisions of this ordinance relating to height, floor area ratio, density, yard, setback or open space.

Noncomplying uses shall be permitted to continue indefinitely and shall be considered legal uses but subject to the following restrictions:

(A)

Expansion. A special use permit is required for the physical expansion, enlargement, or intensification of a noncomplying use.

(B)

Continuation or change in use. A noncomplying use may be continued or changed as follows:

(1)

A noncomplying use may be continued in the form of a different trade, business or activity provided such trade, business or activity is within the scope of the use as listed in this ordinance, including any definition thereof.

(2)

A noncomplying use may be changed, with a special use permit, to any use allowed in the zone in which such noncomplying use is first listed in this ordinance.

(3)

A noncomplying use may be changed to a use allowed in the zone in which such noncomplying use is located, provided that if such other use is listed in such zone as a special use, a special use permit is required. The use of the property shall thereafter conform to the use regulations of the zone in which it is located.

(C)

Reconstruction. If the building in which a noncomplying use is located is destroyed, demolished or otherwise removed, the use may be continued in a building reconstructed pursuant to section 12-102(B) or in compliance with the present zone regulations.

(D)

Abandonment. In case a noncomplying use shall be abandoned for 12 months, then such noncomplying use shall terminate and the use of the property shall thereafter conform to the use regulations of the zone in which it is located.

(E)

Home occupations. A noncomplying home occupation, including one whose noncomplying status arises by virtue of its customers or signage, may continue its operations only so long as maintained by the owner of the business on June 24, 1992.

(F)

Special uses.

(1)

A use which was a legally existing permitted use prior to June 24, 1992 but is allowed only as a special use after June 24, 1992 is considered a noncomplying use subject to section 12-302(A) through (E).

(2)

A use which was a legally existing special use prior to June 24, 1992 but which is not allowed as either a permitted or special use after June 24, 1992 shall be considered a noncomplying use and subject to section 12-302(A) through (E) and the terms and limitations of the special use permit governing such use. In the case of a conflict between the terms of section 12-302(A) through (E) and the special use permit, the special use permit shall control.

(3)

The holder of a special use permit may apply for an extension of that permit even though the use allowed by the permit is no longer permitted in the zone in which the use is located and the permit was originally granted with a specially set expiration date. An application under this paragraph must be filed prior to the expiration of the permit for which an extension is sought.

(G)

Any public building existing on January 24, 1998, and categorized immediately prior to such date as a nonconforming use, whether the use operates pursuant to a special use permit or not, shall not be deemed a nonconforming use. From and after January 24, 1998, such use shall be categorized as a noncomplying use and may continue indefinitely. Such use may be expanded without special use permit approval regardless of subsection 12-302(A), above.

(H)

Any use existing in the W-1 or WPR zone on January 24, 1998, and categorized immediately prior to such date as a nonconforming use, shall not be deemed nonconforming. From and after January 24, 1998, such use shall be categorized as a noncomplying use, and may continue indefinitely subject to the requirements of this section 12-300; provided, that such use shall not be changed except to a use that is permitted, or that is allowed with an approved special use permit, in the zone in which it is located.

(I)

Any fraternal or private club existing on August 5, 1940, at the time of the adoption of the Alexandria City Code of 1940, that has existed continuously since that date, and that has been categorized immediately prior to January 24, 1998, as a nonconforming use, shall not be deemed nonconforming. From and after January 24, 1998, such use shall be categorized as a noncomplying use, and may continue indefinitely subject to the requirements of this section 12-300; provided, that only those specific fraternal or private clubs in existence on January 24, 1998, shall be deemed noncomplying, and that any change in use, management, ownership or operation of such use shall require approval by special use permit.

(J)

Any general auto repair use permitted as an accessory use to a franchised automobile dealership pursuant to section 2-118, which is subsequently not permitted because the franchised dealership ceases to operate, or the repair use ceases to be accessory to such dealership, may, with the approval of a special use permit, be allowed to continue as a noncomplying use.

If the characteristics of a noncomplying use, such as signs, off-street parking and loading, lighting or other features pertaining to the use of land, structures and premises are inconsistent with the zoning regulations adopted on June 24, 1992, no change in such feature (to include in the case of off-street parking or loading a change in the use served) shall be made which increases the inconsistency or lack of compliance with the new zone or other applicable regulation but change may be made which decreases such inconsistency.

(Ord. No. 3697, § 7, 1-22-94; Ord. No. 3973, § 1, 1-24-98; Ord. No. 4022, § 1, 10-17-98; Ord. No. 5580, § 8, 4-26-25)

The following regulations apply to substandard residential lots where the lack of conformity existed prior to June 24, 1992.

Any lot in the R-20, R-12, R-8, R-5, or R-2-5 residence zones, which lot was of record on December 28, 1951, and continuously thereafter, but which lot has less area or Jess width at the front lot line or front building line than the minimum required for use in the zone where it is situated (referred to hereafter in this section as a substandard lot), may be developed only with a residential use in compliance with the zone where it is situated, subject to the following provisions:

(A)

No person has at any time from and after May 14, 1974, contemporaneously held any present or future freehold estate, except as trustee only, or an equitable interest of like quantum, in the substandard lot and in any contiguous land; and

(B)

A special use permit is granted under the provisions of section 11-500; and

(C)

City council, upon consideration of the special use permit, finds that the proposed development will not unreasonably impair an adequate supply of light and air to adjacent property, will not diminish or impair the established property values in the surrounding areas, and will be compatible with the existing neighborhood character.

Notwithstanding the provisions of section 12-401, a substandard lot which complied with the provisions of this ordinance or other prior law in effect on the date such lot was recorded, and which has continuously been of record since such date, may be developed only with a residential use in compliance with the zone where it is situated, subject to the following provisions:

(A)

No person has, at any time from and after September 16, 1988, held any present or future freehold estate, except as trustee only, or any equitable interest of like quantum, or held any interest as contract purchaser, in the substandard lot and in any contiguous undeveloped or unimproved lot of record; and

(1)

The substandard lot contains at least the lot area, and has at least the lot width at both the front lot line and front building line, as exhibited by more than 50 percent of the developed lots on the block face in which the substandard lot is located; or

(2)

The substandard lot contains at least 90 percent of the minimum lot area, and 90 percent of the required lot width at both the front lot line and front building line, as required by the zone in which the substandard lot is located; and

(B)

A special use permit is granted under the provisions of section 11-500; and

(C)

City council, upon consideration of the special use permit, finds that the proposed development will not unreasonably impair an adequate supply of light and air to adjacent property, will not diminish or impair the established property value in the surrounding areas, and will be compatible with the existing neighborhood character.

(D)

Where the location of a substandard lot is such that the minimum number of lots or the minimum length of street frontage herein specified for a block face as defined in this ordinance is not present, the director may designate an appropriate block face for such substandard lot, if any there be, without regard to intersecting streets, subject to city council approval as part of the special use permit granted pursuant to this section 12-402. Where the street frontage, on either side of a street, within a block face contains more than 30 lots or is greater than 1,200 feet in length, as measured along the front lot lines, the director shall designate an appropriate block face comprised of the closest and most appropriate 30 lots or 1,200 feet lot frontage, whichever is less, on each side of the street, subject to city council approval as part of the special use permit granted pursuant to this section 12-402.

Nothing in this section 12-400 shall be deemed to authorize city council to approve a special use permit under the provisions of this section for a development which would exceed the maximum floor area ratio, density or height regulations of the zone or zones in which such development is located, or the maximum floor area ratio, density or height regulations otherwise provided in this ordinance.

In approving a special use permit under this section for a substandard lot meeting the requirements of section 12-401 or 12-402, city council may modify the minimum yard, coverage or other minimum requirements imposed by this ordinance, for the zone or zones in which the lot is located, or otherwise applicable to the lot or the development thereof, if the council determines that such a modification is necessary or desirable to develop the lot in conformity with the approved special use permit, and that such modification will not be detrimental to the public health, safety and general welfare.

From and after September 16, 1989, the remedy and procedure provided in this section 12-400 shall be exclusive remedy and procedure for the use and development of substandard lots in the zones herein designated, and any use or development of such lots in a manner not herein provided for and authorized shall be conclusively presumed to be contrary to the public interest and contrary to the intended spirit and purpose of this ordinance.

(Ord. No. 5515, § 11, 12-16-23)

Any use, building or structure which was grandfathered under the provisions of prior law shall not be subject to the provisions of this Article XII, but shall continue to be subject to such grandfathering provisions.

(A)

Rules generally not applicable. The rules in this Article XII for nonconforming uses and noncomplying uses and structures shall not apply to Community Unit Plan, Planned Unit Development, Cluster Special Use Permit and CO Planned Residential/Commercial Development for which a development plan has been approved by special use permit or ordinance and has not expired prior to June 24, 1992. Such developments shall be governed by the approval documents therefor and the provisions of this section 12-600, and shall not be considered nonconforming or noncomplying development. In the case of a conflict between the specific approval documents and the provisions of sections 12-600(B)(2) and 12-600(B)(3), the provisions of such sections shall control.

(B)

CO Planned Residential/Commercial Development. Notwithstanding any contrary provision of this ordinance, a CO planned residential/commercial development described in section 12-600(A) may proceed pursuant to the following rules.

(1)

SUP process for amendment. An approved CO planned residential/commercial development is a special use permit use. Any amendment to such an approved development may be approved pursuant to the procedures for amending special use permits in section 11-500 of this ordinance.

(2)

Recording requirement removed. An approved CO planned residential/commercial development, the approval of which was required to be and was recorded as a contract between the City and the special use permit permittee (SUP permittee) in the official land records on or before December 12, 1997, is hereby relieved of the requirement that amendments to that contract approved on or after December 13, 1997, be recorded; provided, that a notice approved by the city attorney is recorded in the land records stating that:

(a)

the development is bound and governed by the special use permit by which it was originally approved and any subsequently approved amendments;

(b)

all amendments approved on or before December 12, 1997, have been recorded and may be reviewed in the public land records; and

(c)

all amendments approved on or after December 13, 1997, are maintained and may be reviewed at the Department of Planning and Zoning.

(3)

No contract required. No contract amendment between the SUP permittee, applicant, landowners and the city is required for any amendment to an approved CO planned residential/commercial development which amendment was approved on or after December 13, 1997.

(4)

Prior amendments. Any amendment to an approved CO planned residential/commercial development which amendment was approved and recorded on or before December 12, 1997, is valid.

(5)

Permitted amendments.

(a)

A change to a CO planned residential/ commercial development or a portion thereof which, as of January 24, 1998, has been fully constructed, and for which an as-built site plan has been required, is permitted by an amendment to the special use permit authorizing the development; provided, that the change is consistent with the regulations applicable to the zone in which the development is situated.

(b)

A change to a CO planned residential/ commercial development or a portion thereof which, as of January 24, 1998, has not been fully constructed, and for which an as-built site plan has not been required, is permitted by an amendment to the special use permit authorizing the development that is in effect on January 24, 1998; provided, that the change:

(i)

does not cause the maximum floor area of the development to exceed the floor area authorized in the permit in effect on January 24, 1998;

(ii)

does not cause the development to contain any uses that are (a) not approved by the permit in effect on January 24, 1998, or (b) not permitted uses or special uses under the regulations applicable to the zone in which the development is situated; and

(iii)

otherwise does not cause the development to be noncompliant or inconsistent with the regulations applicable to the zone in which the development is situated, which regulations, in the case of a development located in a coordinated development district, shall be the CDD special use permit provisions in section 5-602(A) of this ordinance, except that the requirement for compliance with such zone regulations may be modified pursuant to clauses (i) and (ii) above.

(6)

Amendment applicant. The applicant for an amendment to an approved CO planned residential/commercial development shall be the owner or owners of each lot or parcel which is the subject of the proposed amendment, with the written consent of either of the following:

(a)

the SUP permittee, or a successor to the permittee, if such permittee or successor to the permittee is in control of the association or corporation of all owners of land within the development, formed pursuant to the Virginia Property Owners' Association Act, § 55-508, et seq., Code of Virginia; or

(b)

the association or corporation of all owners of land within the development, formed pursuant to the Virginia Property Owners' Association Act, § 55-508, et seq., Code of Virginia, if such association or corporation is not under the control of the SUP permittee or a successor to the permittee.

(A)

Rules generally not applicable. The rules in this Article XII for nonconforming and noncomplying uses shall not apply to retail shopping establishments larger than 20,000 gross square feet, which (1) are lawfully in existence on October 19, 2002, and for which no special use permit for the use has been approved prior to such date, or (2) for which a preliminary site plan, but no special use permit for the use, has been approved prior to October 19, 2002, and has not expired. Such uses shall be categorized as grandfathered uses, and shall be governed by the provisions of this Section 12-601. In case of conflict between the provisions of this section and any other provision of this ordinance, the provisions of this section shall control.

(B)

Expansion. Physical expansion or enlargement of the use in the amount of 20,000 gross square feet or less is permitted without special use permit approval.

(C)

Intensification. Intensification of the use not involving physical expansion or enlargement is permitted without special use permit approval.

(D)

Continuation or change in use. The use may be continued by successive owners, and may be changed to a different retail use, without approval of a special use permit. The use may be changed to any other use permitted in the zone in which it is located; provided, however, that if a special use permit is required for such other use by the regulations of such zone, then a special use permit shall be required for such change in use.

(E)

Repair and reconstruction.

(1)

The building in which the use is located may be repaired, remodeled, upgraded and maintained, except as provided in paragraph (3).

(2)

If the building in which the use is located is damaged or destroyed as the result of a casualty loss, the use may be continued in a building reconstructed to the gross square footage which existed at the time of such loss, plus an additional amount not to exceed 20,000 gross square feet, without special use permit approval.

(3)

If the building in which the use is located is demolished or removed to the top of the foundation or below, other than as the result of a casualty loss, the property shall thereafter conform to the regulations of the zone in which it is located, and other applicable regulations of this ordinance.

(F)

Signs, parking and use characteristics. Notwithstanding any other provision of this section, if the characteristics of the use, such as signs, off-street parking and loading, lighting or other features pertaining to the use of land, structures and premises are inconsistent with the regulations of the zone in which the use is located or other applicable regulations of this ordinance, no change to the use or such feature (to include in the case of off-street parking or loading a change or increase in the use served) shall be made which increases the inconsistency or lack of compliance with the zone or other applicable regulations, but a change may be made which decreases such inconsistency, or which complies with the zone and other applicable regulations.

(G)

Other changes. Any change to the use other than as expressly permitted in subsections (B) through (F) of this section, and which is otherwise permitted by this ordinance, shall require special use permit approval for the entire use.

(H)

Abandonment. In the event that, after October 19, 2002, the use ceases actual retail operation for a period of five consecutive years or more, the grandfathered status of the use shall terminate, and the use of the property shall thereafter conform to the use regulations of the zone in which it is located.

(I)

FAR, height, etc. not affected. Nothing in this section shall be deemed to permit any increase in floor area ratio, height or other regulation expressed as a maximum, nor to permit any reduction in required parking, setbacks, open space or other regulation expressed as a minimum, otherwise applicable to the use under this ordinance.

(J)

Site plan required. Nothing in this section shall be deemed to excuse the requirement for a site plan pursuant to Section 11-400 of this ordinance.

(K)

Conforming uses. Retail shopping establishments larger than 20,000 gross square feet, which (1) are lawfully in existence on October 19, 2002, and for which a special use permit for the use has been approved prior to such date, or (2) for which a special use permit for the use has been approved prior to October 19, 2002, and has not expired shall be categorized as conforming uses; shall not be subject to the provisions of this section, and shall be subject to the terms and conditions of the special use permit.

(Ord. No. 3974, § 1, 1-24-98; Ord. No. 4129, § 1, 4-15-00; Ord. No. 4280, § 6, 11-16-02)

(A)

In the case of land that became a part of the city through an exchange with Arlington County, effective 12:00 midnight December 31, 1965, which land had been developed prior to such date and which is zoned RA residential by the city, but does not meet all of the regulations and requirements of the RA zone; such land shall be allowed to be maintained, altered, repaired or reconstructed in use without the restrictions that normally accompany a nonconforming status, so long as the nonconforming elements of such land are not changed in such a way as to make them more nonconforming than on the date they were zoned RA.

(B)

Notwithstanding any other provisions of this Article XII in conflict herewith, a residential building which is located in a zone where residential uses are not permitted may be repaired, structurally altered, extended and enlarged subject to the provisions of Article III if such nonconforming residential building is situated in an area designated for residential use in the master plan.

The burden of establishing that any use or structure is lawfully existing based on its nonconforming or noncomplying status under this Article XII shall, in all cases, be upon the owner of such use or structure and not upon the city.

To assist a landowner in meeting the burden provided under section 12-801, each use or structure lawfully existing based on its nonconforming or noncomplying status under this Article XII may, within three years of June 24, 1992, register with the department of planning and zoning by supplying such information as the director may require to determine the status of use or structure.

(Ord. No. 3774, § 2, 1-21-95)

A residential dwelling on a lot in the R-20, R-12, R-8, R-5, or R-2-5, which lot has less lot area, lot width, or lot frontage than the minimum required for use in the zone where it is situated (referred to hereafter in this section as a substandard lot), is subject to the following requirements.

(A)

Addition. An expansion of a residential dwelling on a substandard lot is permitted subject to the following standards.

(1)

Construction complies with the requirements of section 12-102(A);

(2)

At least 50 percent of the existing first floor exterior walls in their entirety (measured in linear feet) must remain as adjoining exterior walls. The determination of first floor exterior walls is that the walls must have its finished floor surface entirely above grade.

(B)

Replacement. Demolition and replacement of a same-size residential dwelling on a substandard lot is permitted subject to the following standards, regardless of the provisions of section 12-102(B):

(1)

Construction shall not exceed the pre-existing gross floor area by more than ten percent, with gross floor area defined as the floor area of section 2-145(A) without any exclusions; and

(2)

Construction shall not exceed the height of the pre-existing dwelling.

(C)

Redevelopment. A residential dwelling not meeting the standards of section 12-901(A) or (B) above is subject to the following provisions:

(1)

A special use permit is granted under the provisions of section 11-500; and

(2)

City council, upon consideration of the special use permit, finds that the proposed development will be compatible with the existing neighborhood character in terms of bulk, height and design.

(Ord. No. 4556, § 1, 6-24-08; Ord. No. 5515, § 11, 12-16-23)

Any lot of record prior to December 16, 2023 in the RA, RB, RM, CL, CSL, CD, CD-X, OC, OCM(50), OCM(100), OCH, CRMU/L, CRMU/H, or CRMU/X zone which exceeds the maximum density permitted or has less lot area, width, or frontage than the minimum required for the use in the zone where it is situated, may be developed with a single-unit, two-unit, or townhouse dwelling and its accessory structures subject to the following requirements:

(A)

Bulk and open space requirements. The dwelling shall comply with the bulk and open space regulations of the zone in which it is situated except that, regardless of the maximum height and floor area ratio otherwise established, the maximum permitted height and floor area ratio shall be 35 feet and 1.50, respectively.

(B)

Off street parking. The provisions of Article VIII of this ordinance shall apply.

(Ord. No. 5515, § 11, 12-16-23)