A nonconformance is a building, structure, sign or parcel of land, or use thereof, which was lawfully existing at the time of the adoption or amendment of this chapter, and not in conformity with the provisions of this chapter or amendment.

A building, structure, sign or parcel of land, or use thereof, was lawfully existing or lawfully established if it was in existence prior to June 28, 1961, or was established in conformance with the zoning regulations in effect at the time the use was first established. For the purposes of this chapter, the placement or use of a sign, with or without any other structure or use, is considered a use of land. A lot was lawfully existing or lawfully established if it was of record or shown on a recorded plat prior to June 28, 1961 and was separately owned. Any building, structure, sign or parcel of land, or use thereof, that was not lawfully existing or established at the time of the adoption or amendment of this chapter, is not protected by this article.

A lawfully established use of land, building or structure which is not a permitted use in the zoning district in which it is located, as set forth in section 28-82, is nonconforming by use.

A lawfully established building, structure or parcel of land not in compliance with the dimensional regulations of this chapter is nonconforming by dimension. Dimensional regulations include all regulations of this chapter, other than those pertaining to the permitted uses. A lawfully established building, structure, parcel of land or use thereof, not in compliance with the parking regulations of this chapter, as set forth in article VIII of this chapter, is also nonconforming by dimension. A lawfully existing or lawfully established lot that is not in compliance with the dimensional regulations of this chapter, including, but not limited to those regulations for minimum lot size, lot width and lot frontage, (also known as a substandard lot of record) is also nonconforming by dimension.

A building or structure containing more dwelling units than are permitted by the use regulations of this chapter shall be nonconforming by use. A building or structure containing a permitted number of dwelling units by the use regulations of this chapter, but not meeting the lot area per dwelling unit regulations, shall be nonconforming by dimension.

A building, structure or parcel of land nonconforming by more than one factor, such as by use, dimension, area or parking, shall comply with all regulations of this article. Where the regulations conflict, the most restrictive regulations shall apply.

A nonconforming building, structure, sign or parcel of land or the use thereof, which exists by virtue of a variance or a special use permit (or a special use) granted by the board, shall not be considered a nonconformance for the purposes of this article, and shall not acquire the rights of this article. Rather, such building, structure, sign, parcel of land or use thereof, shall be considered a use by variance or a use by special use permit and any moving, addition, enlargement, expansion, intensification or change of such building, structure, sign, parcel of land or use thereof, to any use other than a permitted use or other than in complete conformance with this chapter, shall require a further variance or special use permit from the board. Provided, however, that a special use permit need not be obtained in connection with a duly-authorized temporary expansion of a restaurant service area as provided for in section 25-16.

(Ord. No. 2020-04, 7-1-20)

Nonconforming uses are incompatible with and detrimental to permitted uses in the zoning districts in which they are located. Nonconforming uses cause disruption of the comprehensive land use pattern of the town, inhibit present and future development of nearby properties and confer upon their owners a position of unfair advantage. It is intended that existing nonconforming uses shall not justify further departures from this chapter for themselves or for any other properties.

(1)

Treatment in residential zones. Nonconforming uses in residential zones are to be treated in a stricter fashion than nonconforming uses located in nonresidential zones. Due to the disruption which nonconforming uses cause to the peace and tranquility of a residential zone, nonconforming uses therein should be eventually abolished or reduced to total conformity over time.

(2)

Continuance of use. Nothing in this chapter shall prevent or be construed to prevent the continuance of a nonconforming use of any building or structure for any purpose to which such building or structure was lawfully established.

(3)

Maintenance and repair. A building or structure containing a nonconforming use may be maintained and repaired except as otherwise provided in this article.

(4)

Moving. A building or structure containing a nonconforming use shall not be moved in whole or in part either on or off the lot on which it is located unless the use contained within such building or structure is made to conform to the use regulations of the zone in which it is relocated.

(5)

Addition and enlargement. A building or structure containing a nonconforming use shall not be added to or enlarged in any manner, including any addition or enlargement of floor area or volume, unless the use contained within such building or structure, including such addition and enlargement, is made to conform to the use regulations of the zone in which it is located.

(6)

Expansion. A nonconforming use of a building or structure shall not be expanded into any other portion of the building or structure which contains a conforming use or which is unoccupied or unused.

(7)

Intensification. A nonconforming use of a building, structure or land shall not be intensified in any manner. Intensification shall include, but not be limited to, increasing hours of operation, increasing the number of dwelling units or increasing the seating capacity of a place of assembly.

(8)

Change of use.

a.

Residential zones. Within any residential zone, a nonconforming use may be changed to a permitted use or to a use in the same use code listed under article III. A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use. A nonconforming use may also be changed, by special use permit, to a use that is determined by the zoning board to be more in conformity to the permitted uses in the zoning district for which the property is located.

b.

Nonresidential zones. Within any nonresidential zone, a nonconforming use may be changed to a permitted use, to the same use code listed under article III, or may be changed to a different nonconforming use by special use permit in accordance with section 28-409. A nonconforming use, if changed to a permitted use, may not be changed back to a nonconforming use.

(9)

Abandonment. If a nonconforming use is abandoned, it may not be reestablished. Abandonment of a nonconforming use shall consist of some overt act, or failure to act, which would lead one to believe that the owner of the nonconforming use neither claims nor retains any interest in continuing the nonconforming use unless the owner can demonstrate an intent not to abandon the use. An involuntary interruption of nonconforming use, such as by fire and natural catastrophe, does not establish the intent to abandon the nonconforming use. However, if any nonconforming use is halted for a period of one year or more, the owner of the nonconforming use will be presumed to have abandoned the nonconforming use, unless that presumption is rebutted by the presentation of sufficient evidence of intent not to abandon the use.

Buildings or structures that are nonconforming by dimension are likely to cause overcrowding and congestion in the neighborhoods, contribute to unhealthy conditions and are contrary to the purposes of this chapter. Buildings or structures that are nonconforming by dimension cause disruption of the overall land use pattern of the town, inhibit present and future development of nearby properties and confer upon their owners a position of unfair advantage. It is intended that existing buildings or structures that are nonconforming by dimension shall not justify further departures from this chapter for themselves or for any other property in the neighborhood.

(1)

Continuance. Nothing in this chapter shall prevent or be construed to prevent the continuance of the use of any building or structure nonconforming by dimension for any purpose to which such building or structure was lawfully established.

(2)

Maintenance and repair. A building or structure nonconforming by dimension may be maintained and repaired except as otherwise provided in this section.

(3)

Moving. A building or structure which is nonconforming by dimension shall not be moved in whole or in part to any other location on the lot on which it is located unless every portion of such building or structure is made to conform to all of the dimensional requirements of the zone in which it is located.

(4)

Addition and enlargement. A building or structure nonconforming by dimension shall not be added to or enlarged in any manner, unless such addition or enlargement conforms to all of the dimensional regulations of the zone in which the building or structure is located; provided however, that in the R-80, R-40, R-20, R-15, and R-10 zones, where 50 percent of the structures on the same side of the street within the block or within 200 feet, whichever is greater, on each side of the structure in question have less than the required minimum front yard setback, then such structure may be added to or enlarged so as to bring the front yard setback to the average distance of the front yards of such neighboring structures, but shall in no case be less than 15 feet. In the R-6 zone, the setback shall be the average setback of the residential block. (See Table B, Dimensional Table, section 28-211.)

(5)

Expansion. A conforming use within a building or structure which is nonconforming by dimension (other than by lot area per dwelling unit) may be expanded into any other portion of the building or structure which is unoccupied or unused.

(6)

Intensification. A conforming use within a building or structure which is nonconforming by dimension may be intensified, provided that such intensification is in conformance with the use and lot area per dwelling unit regulations, if applicable, for the zone in which it is located.

(7)

Change in use. A conforming use within a building or structure which is nonconforming by dimension may be changed to any other conforming use.

(8)

Demolition. A building or structure nonconforming by dimension, if voluntarily demolished, shall not be reconstructed, unless it conforms with the dimensional regulations of the zone in which it is located. Such voluntary demolition shall be considered an abandonment of the use as set forth in subsection 28-218(9). If such building or structure is involuntarily demolished, destroyed or damaged, it may be repaired or rebuilt to the same size and dimension as previously existed.

(a)

Continuance. The lawfully established nonconforming use of land, where no building is involved, may be continued, provided that no such nonconforming use of land shall in any way be expanded or intensified either on the same or adjoining property.

(b)

Change of use. The nonconforming use of land shall not be changed to a different use, unless such use conforms to the use regulations of the zone in which it is located.

(a)

Single lots of record.

(1)

In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot which was of record on June 28, 1961.

(2)

Notwithstanding limitations imposed by other provisions of this chapter, such lot must be in separate ownership and not adjoining any other lots in common ownership which would result in a merger under subsection 28-221(c) below and must not have been merged by use. This provision shall apply:

a.

Even though such lot fails to meet the requirements for total lot area or width, or both, that are generally applicable in the district as set forth in article V of this chapter; and

b.

Notwithstanding the failure of a single substandard lot of record or contiguous lots of record to meet the dimensional and/or quantitative requirements of this zoning ordinance, and/or road frontage or other access requirements applicable to the district as stated in the ordinance, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. For any structure proposed under this section on a substandard lot of record, the following dimensional regulations shall apply:

1.

Minimum building setbacks, lot frontage, and lot width requirements for a lot that is nonconforming in area shall be reduced by applying the building setback, lot frontage, and lot width requirements from another zoning district in the municipality in which the subject lot would be conforming as to lot area. If the subject lot is not conforming as to lot area in any zoning district in the municipality, the setbacks, lot frontage, and lot width shall be reduced by the same proportion that the area of such substandard lot meets the minimum lot area of the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets 40 percent of the minimum lot area required in the district in which it is located, the setbacks, frontage, and width shall each be reduced to 40 percent of the requirements for those dimensional standards in the same district.

2.

Maximum lot building coverage for lots that are nonconforming in area shall be increased by the inverse proportion that the area of such substandard lot meets the minimum area requirements in the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets 40 percent of the required minimum lot area, the maximum lot building coverage is allowed to increase by 60 percent over the maximum permitted lot building coverage in that district.

All proposals exceeding such reduced requirement shall proceed with a modification request or a dimensional variance request, whichever is applicable.

c.

Provided that appropriate landscaping, including, but not limited to, trees, hedges or fences shall be installed pursuant to the direction of the director to minimize any impact on adjacent property.

d.

Merger prohibited for certain lots. The merger of lots shall not be required when the substandard lot of record has an area equal to or greater than the area of 50 percent of the lots within 200 feet of the subject lot, as confirmed by the zoning enforcement officer.

(b)

Merger of multiple nonconforming lots of record in nonresidential zones. Adjacent lawfully established lots in the same ownership in the LB, D, W, GB, MMU and M zones which have less than the minimum area or frontage requirements shall not be merged together, and may be separately developed; provided, however, that such lots must be served by both public sewer and public water and that any such development must meet all dimensional requirements (other than minimum lot area and frontage) and density requirements of this chapter. If such lots are not served by both public sewer and water, then they shall be deemed to be merged into one lot and shall not be divided except in conformance with all requirements of this chapter.

(c)

Merger of multiple nonconforming lots of record in residential zones. The merger of multiple nonconforming lots of record in residential zones shall be as follows:

(1)

Adjacent lawfully established undeveloped lots, or adjacent lawfully established developed and undeveloped lots, in the same ownership in the R-80, R-40, R-20 and R-20SP zones which have less than the minimum area or frontage requirements shall be deemed to be merged together as one lot by operation of this chapter. Any such merged lot shall not be divided, except as follows:

a.

Any such division shall be deemed to be a subdivision and subject to all requirements of the subdivision regulations of the town, including without limitation, the requirement for planning board approval; and

b.

All such resulting lots must be served by both public sewer and public water; and

c.

All such resulting lots must meet all dimensional requirements of this chapter, except those as to minimum area and frontage requirements; and the minimum frontage and lot width be reduced to 50 percent of that otherwise required for the zone in which the lot is located, and the lot area may be reduced as follows:

1.

In the R-80 zone, if after subdivision into as many 80,000 square foot lots as possible, there remains a lot of 40,000 square feet or more, it may be created.

2.

In the R-40 zone, if after subdivision into as many as 40,000 square foot lots as possible, there remains a lot of 30,000 square feet or more, it may be created.

3.

In the R-20 and R-20SP zones, if after subdivision into as many 20,000 square foot lots as possible, there remains a lot of 15,000 square feet or more, it may be created.

Provided however, that the planning board shall have the authority to require the subdivider to divide the merged lot into the same number of lots as would be allowed by this subsection, but with the available lot area averaged over all such lots. For example, in the R-20 zone, if someone owns three lawfully existing adjacent nonconforming lots of 12,000 square feet each, these would be merged into one lot of 36,000 square feet. Under the provisions of this subsection, such lot could be subdivided into one 20,000 square foot lot and one 16,000 square foot lot; provided, however, that the planning board could instead require two 18,000 square foot lots.

d.

In cases where the above standards cannot be met, then a dimensional variance must be obtained from the Zoning Board of Review in order to proceed with a subdivision application. The Zoning Board may grant a dimensional variance for previously merged lots from the requirements of this merger provision wherein the zoning board may make a specific finding of fact that lots, as unmerged, will be of a size generally in conformance with the area of developed lots in the surrounding vicinity. Such lots shall further have the minimum width requirement of lots in that zone generally or at the very least shall have a lot width of not less than 80% of the lot width required for the underlying zone.

(2)

Adjacent lawfully established undeveloped lots, or adjacent lawfully established developed and undeveloped lots, in the same ownership in the OS, EI, R-15, R-10, R-10SW, R-8 and R-6 zones which have less than the minimum area or frontage requirements shall be deemed to be merged together as one lot by operation of this chapter. Any such merged lot shall not be divided except as follows:

a.

Any such division shall be deemed to be a subdivision and subject to all requirements of the subdivision regulations of the town, including without limitation the requirement for planning board approval; and

b.

All resulting lots must meet all dimensional requirements of this chapter, including without limitation, the minimum lot area and frontage requirements, or obtain a dimensional variance from the zoning board of review. The zoning board may grant a dimensional variance for previously merged lots from the requirements of this merger provision wherein the zoning board may make a specific finding of fact that lots, as unmerged, will be of a size generally in conformance with the area of developed lots in the surrounding vicinity. Such lots shall further have the minimum width requirement of lots in that zone generally or at the very least shall have a lot width of not less than 80 percent of the lot width required for the underlying zone.

(d)

Exemption from merger provision in residential zones. In any residential zone, if 70 percent of the block, on the same side of street, (block not to exceed 500 linear feet in either direction of the subject lot), or on both sides of the street if fewer than three lots, is developed and built on lots with less than the minimum area which is required in the zone in which it is located, then the remaining multiple nonconforming lots of record may be divided and developed at the same average lot area. Any such merged lot shall not be divided, except as follows:

(1)

Any such division shall be deemed a subdivision and subject to all requirements of the subdivision regulations of the town, including without limitation the requirement for planning board approval; and

(2)

All resulting lots must have sewer and water; and

(3)

All resulting lots must meet the following dimensional requirements: The minimum frontage and lot width may be reduced to no less than 50 percent of that otherwise required for the zone in which the lot is located.

(e)

Notwithstanding any of the foregoing provisions of this section, the merger of lots shall not be required when the substandard lot of record has an area equal to or greater than the area of 50 percent of the lots within 200 feet of the subject lot, as confirmed by the zoning enforcement officer.

(Ord. No. 2017-16, 11-8-17; Amend. of 1-27-21; Ord. No. 2023-23, 12-6-23; Ord. No. 2025-07, Att., 5-28-25)

A building or structure is considered nonconforming by parking if the lawfully established use of the building or structure does not meet the parking requirements of article VIII of this chapter.

(1)

Addition, enlargement, expansion and intensification of nonresidential uses. A nonresidential building or structure, or use of land, nonconforming by parking may be added to, enlarged, expanded or intensified provided additional parking space is supplied to meet the requirements of article VIII of this chapter for such addition, enlargement, expansion or intensification. (See exception for the D zone in section 28-252.)

(2)

Addition, enlargement, expansion and intensification of residential uses. Any residential building or structure nonconforming by parking may not be added to, enlarged, expanded or intensified, unless brought into full compliance with the parking requirements of article VIII of this chapter, such that sufficient parking is provided for the entire structure including the original portion and the addition, enlargement, expansion or intensification. (See exception for the D zone in section 28-252.)

(3)

Change of use. A building or structure nonconforming by parking, may be changed to a different use, pursuant to all other provisions of this chapter, provided that such new use meets the following parking requirements. The number of additional parking spaces required shall be the difference between the number of spaces required for the proposed use and the number of spaces required for the previous use. In the event that the new use requires less parking spaces than the previous use, no additional parking spaces need be supplied. However, none of the existing parking spaces shall be eliminated unless the total number of spaces required by this chapter for the new use are provided. (See exception for the D zone in section 28-252.)

The location of a structure in violation of the set back requirements shall be considered a legal nonconforming structure by dimension provided that all the following conditions are met:

(1)

The use is a single residential dwelling unit only;

(2)

The nonconformance of the building or structure does not exceed 25 percent of the required side, front, and/or rear yard setbacks;

(3)

A building permit and/or certificate of occupancy was issued for the location of the structure prior to the effective date of the adoption of this section of the ordinance (September 20, 2001);

(4)

A period of seven years has expired since the improper location of the structure; and,

(5)

No notice of violation. Zoning board of appeal action, or court action is pending in regard to the improper location of the structure.