Within the zoning districts established by Chapter 425 of the Bethany Beach Town Code or amendments that may later be adopted, there exist lots, structures, uses of land and structures and characteristics of use which were lawful before this chapter was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendment. Such nonconformities may be categorized as: a nonconforming parcel of land (i.e., does not meet the width, frontage, or minimum area requirements); a nonconforming building or structure (i.e., does not meet the dimensional requirements, such as yard setbacks, height, minimum or maximum lot coverage); or a nonconforming use (which could involve a use of the land itself or of the building or structure on the land). Oftentimes, there may be two or more overlapping nonconformities pertaining to one parcel of land. It is the intent of this chapter to permit these nonconformities to continue until they are removed. Regarding Category A and C, the Town does not encourage survival; regarding Category B, the Town neither encourages or discourages their survival. Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the zoning districts involved. It is further the intent of this chapter that nonconformities shall not be used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district.

To avoid undue hardship, nothing in this chapter shall require any changes in the plans, construction or designated use of any building or part thereof, in which the excavation, demolition, removal of an existing building, or construction of which, shall be lawfully in progress at the time of passage of this chapter or for which a building permit shall have been issued pursuant to law, provided that construction shall be promptly and diligently pursued and completed within 18 months of the issuing of the building permit.

Such lot was held in single and separate ownership as of the time of the passage or amendment of this chapter; or

As of the time of the passage or amendment of this chapter, such lot and any contiguous lot not held in a single and separate ownership have characteristics or features which significantly preclude their being "merged" to meet the lot area or street frontage requirements of this chapter. By way of illustration and not in limitation, the following are examples of characteristics or features which would permit contiguous nonconforming lots held by the same identical owner to be treated as separate nonconforming lots: a valid enforceable easement in favor of a third party separating the two existing lots; existing detached buildings containing dwelling units or commercial uses on each of the contiguous nonconforming lots; significant differences in natural features; elevations or contours such that such contiguous nonconforming lots could not, as a practical matter, be merged and utilized as one lot.

The applicant shall demonstrate that the nonconforming use cannot be reasonably changed to a conforming use.

The applicant shall demonstrate that the proposed change will be no more objectionable in external effects than the existing nonconforming use, or will be more appropriate than the existing nonconforming use with regard (but not limited) to:

A structure or building containing a nonconforming use may be repaired, improved, altered or enlarged; provided that the repair, improvements, alteration or enlargement conforms to the requirements of this and other codes and does not increase the part of the structure or building comprising the use nonconformity.

In the case of a building containing apartments and/or commercial lodging rooms in an R-1, R-1A or R-2 District, the size and location of individual apartments may be changed; provided that the total floor area comprising the nonconforming use is not increased and the number of apartments or commercial lodging rooms remains the same or is reduced.[1]

Any building or structure containing a nonconforming use may be repaired or have its non-load-bearing walls, fixtures, wiring, or plumbing replaced, provided that: such repairs or replacements do not, in any twelve-month period, exceed 25% of the reasonably estimated current replacement cost of the entire building or structure; and the cubic content of that portion of the building or structure containing the nonconforming use is not increased; provided, however, anything herein to the contrary notwithstanding, nonconforming multifamily residential structures that are located in single-family zoning districts may increase cubic content as long as any proposed alterations and/or expansions do not increase and/or create any additional dimensional nonconformities.

If a building or structure or portion thereof containing a nonconforming use 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.

Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety upon order of such official.

A structure or building which is nonconforming as to dimensions or lot density may be repaired, improved, altered or enlarged, provided that the repair, improvement, alteration or enlargement conforms to the requirements of this and other codes and does not increase any existing nonconformity of dimension or density, and further provided, that whenever nonconformity exists because the number of principal buildings exceeds the maximum number of principal buildings permitted on a lot in that district, no repair, alteration or improvement shall be permitted which would increase the size (i.e., height, width, length) or intensify the use (e.g., create a two apartment buildings out of a single-unit guesthouse) of any secondary principal building. For purposes hereof, "secondary principal building" shall mean any principal building on a lot containing two or more principal buildings which, because of its size location, amenities, nature and frequency of use or other factors cannot be considered the primary principal building. By way of example, but not in limitation, secondary principal buildings would include garage apartments, guest houses and cottages occupied or used less frequently than other principal buildings on the lot.

Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

No existing building or structure, nonconforming in use, dimension or density, which is razed, demolished, removed, destroyed or damaged by voluntary act of the owner (or any person acting with the permission or at the direction of the owner) shall be restored or reconstructed except in compliance with the use, height, yard setbacks and lot coverage requirements of this ordinance, except as permitted in the R1-A Zoning District. For the purpose of this subsection, the gradual replacement of 50% or more of the structural members of a building or structure within any 24 consecutive months shall be prohibited unless in compliance with the height, yard setbacks and lot coverage requirements of this chapter.

An existing building or structure nonconforming in use, dimension or density which is wholly or substantially damaged or destroyed by fire, explosion, flood, windstorm or other Acts of God (to the point where it is not economically feasible to repair) may be rebuilt or replaced in the same location and dimensions as the building or structure existed just previous to its destruction, provided that reconstruction shall be commenced within six months from the date of destruction and carried on without interruption to completion within in one year of commencement.

Where an existing building or structure under this section is destroyed or significantly damaged, or parts of the building or structure are damaged or destroyed to the point that they will not be used in restoring or repairing the structure, such building or structure or the damaged parts thereof shall be removed from the property within three months of the date of damage. Any replacement of a building or structure nonconforming in use or dimensions shall: