The purpose of this article is to encourage the discontinuance of nonconforming uses, and to provide for the transition of nonconforming uses to conforming or more conforming uses.

(a)

Types of Nonconformity. The intent of this article is to regulate changes in lawfully existing uses, structures and lots which do not conform with the present regulations of this ordinance. A single property may exhibit one or more types of nonconformity. It is the intent of this ordinance that each type of nonconformity be treated distinctly where more than one aspect of nonconformity occurs on a given property. This Article establishes provisions for three classes of nonconformities relating to:

(1)

Lots: The size, frontage, or other dimensions associated with a lot;

(2)

Uses: Principal and accessory uses of a lot or within the buildings thereon; and

(3)

Structures: The location and extent of buildings and structures on a lot, with respect to the required yards, density limitations, lot coverage, or other dimensional standards.

(b)

Applicability Within the Shoreland Protection (SP) District. Nonconforming lots of record and nonconforming structures that are subject to the provisions of Section 28-3-3, Shoreland Protection (SP) District, of this ordinance, and which are also protected under the provisions of RSA 483-B, Comprehensive Shoreland Protection Act, shall also be governed by the provisions of RSA 483-B:10 and 11, Nonconforming Lots of Record, and Nonconforming Structures, respectively. In the event of a conflict between applicable standards, the more restrictive shall apply.

(c)

Public Acquisition and Nonconforming Status. Where a structure or the lot on which it is located fails to meet the dimensional standards of this ordinance as a consequence of government acquisition of a portion of the property, such structure or lot shall be regarded as nonconforming, and shall be used, modified, and maintained in accordance with provisions of this article.

(d)

Signs. This article shall not apply to signs. Provisions for nonconforming signs are contained in Section 28-6-10, Status of Nonconforming Signs, of this ordinance.

(a)

Evidence of Nonconformity. In reviewing an application for a building permit, or other application for land use change or structural alteration involving a nonconforming use, building or lot, the Deputy City Manager for Development, or their designee, shall make a determination as to the existence of a nonconformity. The applicant bears the burden of presenting evidence sufficient to allow the Deputy City Manager for Development, or their designee, to make findings required to support the determination of the existence of a nonconformity. The applicant, or his agent, shall produce acceptable evidence attesting to said legal nonconforming status. Such evidence shall include, but is not restricted to, such documents as rent receipts, affidavits, documentation of utility services, or other information as may be deemed to be necessary in a particular case.

(b)

Nonconforming Use Status Limited to Permanent Lawful Uses. The temporary or illegal use of land or structures, or land and structures in combination, shall not be sufficient to establish the existence of a nonconforming use or to create rights in the continuance of such use.

(c)

Status of Uses Authorized by Special Exception or Conditional Use Permit. Any use in lawful existence at the time of passage or amendment of this ordinance which would thereafter require a Special Exception or Conditional Use Permit under its terms shall without further action be deemed a conforming use. Any enlargement or alteration of such use, within buildings, or on a lot, shall require a Special Exception or Conditional Use Permit as indicated in Section 28-2-4(k), Table of Principal Uses, of this ordinance, as though it were a new use.

(d)

Status of Uses or Dimensions Established by Variance. Where the use or dimensions of a lot or structure, not otherwise allowed under the provisions of this ordinance, have been or are established by the granting of a variance by the Zoning Board of Adjustment pursuant to Section 28-9-3, Decisions by the Zoning Board of Adjustment (ZBA), of this ordinance, said use or dimensions of a lot or structure shall not be considered to be a nonconformity under the provisions of this Article. Any modification of a use or dimensions established by variance shall require a new application for a variance to be submitted to the ZBA for consideration.

(e)

Restoration of Merged Lots.

(1)

"Involuntary merger" and "involuntarily merged" mean lots merged by municipal action for zoning, assessing, or taxation purposes without the consent of the owner.

(2)

"Owner" means the person or entity that holds legal title to the lots in question, even if such person or entity did not hold legal title at the time of the involuntary merger.

(3)

"Voluntary merger" and "voluntarily merged" mean a merger under RSA 674:39a, or any overt action or conduct that indicates an owner regarded said lots as merged such as, but not limited to, abandoning a lot line.

(4)

Lots or parcels that were involuntarily merged prior to September 18, 2010 by a city, town, county, village district, or any other municipality, shall at the request of the owner, be restored to their premerger status and all zoning and tax maps shall be updated to identify the premerger boundaries of said lots or parcels as recorded at the appropriate registry of deeds.

(5)

Lots or parcels that were voluntarily merged prior to January 1, 1995 by any owner in the chain of title, and where no evidence of voluntary merger exists on the lots or parcels since January 1, 1995, may, at the request of the owner, be restored to their premerger status, and all zoning and tax maps updated to identify the premerger boundaries of said lots or parcels as recorded at the appropriate registry of deeds, provided:

a.

No owner in the chain of title voluntarily merged his or her lots on or after January 1, 1995. In that case, all subsequent owners shall be estopped from requesting restoration. The municipality shall have the burden of proof to show that any previous owner voluntarily merged his or her lots; and

b.

The merged lot does not have any unpaid real estate taxes or a real estate tax lien thereon.

(6)

If there is any mortgage on any lot to be unmerged, the property owner shall give written notice to each mortgage holder prior to submission of the request to unmerge the lots. The written consent of each mortgage holder shall be required prior to submission of the request to unmerge the lots, and shall be recorded with the notice of the restoration of the lots. The City of Concord shall not be liable for any deficiency in the notice to mortgage holders.

(7)

All decisions of the governing body may be appealed in accordance with the provisions of RSA 676.

(8)

Any unmerged lot under this ordinance shall not gain the right of a nonconforming lot. Nonconforming status relief must be obtained through the zoning board of adjustment.

(Ord. No. 2975, § I, 3-13-17; Ord. No. 3166, § XVII, 7-8-24; Ord. No. 3184, § I, II, 8-11-25)

(a)

Evidence of Nonconforming Lot. A nonconforming lot shall be deemed to exist where the Deputy City Manager for Development, or their designee, determines, based on information submitted by the property owner or by the public record, that all of the following conditions are true:

(1)

The lot was created prior to the effective date of this ordinance, or prior to the effective date of relevant amendments affecting the conformity of the lot, and no further division has occurred since that date;

(2)

The lot met the minimum size, frontage and area standards which were in effect when the lot was created; and

(3)

The lot does not conform with present size, frontage, or other dimensional standards of the zoning district, and the present owner does not own, and has no contract, option or other enforceable legal right to acquire any adjoining property to the extent necessary to make the lot conforming with present standards, or is prevented by law from doing so.

(b)

Date Lot Was Created. The date of creation of a lot shall be considered established by its most recent change in configuration by parcel area reduction, consolidation, land division, or other official action if such was required.

(c)

Use of a Nonconforming Lot. A nonconforming lot may be developed for the purposes and uses permitted within the district in which it is located under the following conditions:

(1)

Lots of Substandard Size. When a nonconforming lot can be used in conformity with all applicable regulations except for minimum lot size, then the lot may be developed for a permitted use in accordance with Section 28-2-4(h), Table of Principal Uses, of this ordinance. However, no use is permissible on a nonconforming lot where the lot size requirements for such use pursuant to Articles 28-4, Development Design Standards, or 28-5, Supplemental Standards, of this ordinance, would necessitate a lot of a size greater than the established minimum lot area as specified in Section 28-4-1(h), Table of Dimensional Regulations, of this ordinance;

(2)

Conditions for Development of Nonconforming Lot. In any residential district, a one-family detached dwelling may be constructed on a nonconforming lot, and in any nonresidential district, a permitted use in accordance with Section 28-2-4(h), Table of Principal Uses, of this ordinance may be developed on a nonconforming lot, provided that the following conditions are met:

a.

The lot has at least twenty-two (22) feet of frontage on an accepted City street;

b.

All yard, setback, parking and other requirements of this ordinance can be met;

c.

Such lot, at the effective date of this ordinance or an applicable amendment thereto, was held under separate ownership from the adjoining lots or has been made nonconforming since that time through public acquisition;

d.

Where development is proposed on a nonconforming lot abutting another lot or lots in the same ownership, these lots shall be consolidated as necessary to eliminate nonconformity to the maximum extent possible, and proof of that consolidation shall be filed with any application for a permit for development of the lot. After that time, the consolidated lot, if still nonconforming, shall continue to have the same rights of use as other nonconforming lots as provided in this article. Where, prior to the adoption or amendment of this ordinance, abutting nonconforming lots in the same ownership were developed with structures housing separate principal uses, said lots shall be exempt from the requirement for consolidation unless a structure is or has been abandoned or destroyed pursuant to the provisions of this article; and

e.

Where the municipal sewer system is not available to serve the lot, an approval has been received from the New Hampshire Department of Environmental Services Water Division (NHDES-WD), for an on-site subsurface disposal system to serve the proposed use to be located on the nonconforming lot.

(Ord. No. 3166, § XVIII, 7-8-24)

(a)

Continuation of a Nonconforming Use or Nonconforming Characteristics of a Use. Where a nonconforming use, or where nonconforming characteristics of a use such as off-street parking and loading, lighting, landscaping, or similar features exist, such nonconforming uses or characteristics of a use may continue so long as it remains otherwise lawful, provided that:

(1)

No such nonconforming use or nonconforming characteristics of a use shall be enlarged or increased nor extended to occupy a greater area of land than was occupied at the effective date or amendment of this ordinance except in accordance with the provisions of Section 28-8-4(c), Expansion of a Nonconforming Use, but any nonconforming use or nonconforming characteristics of a use may be altered to reduce its nonconformity in accordance with the provisions of this ordinance;

(2)

No such nonconforming use or nonconforming characteristics of a use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this ordinance;

(3)

No additional structure not conforming to the requirements of this ordinance shall be erected in connection with such nonconforming use of land;

(4)

The use has not been destroyed, abandoned, or terminated subject to the criteria established by this Article;

(5)

An existing use is replaced by a use permitted in the respective district, and

a.

There is no net increase in the number of off-street parking spaces required under Article 28-7-2, Off-street Parking Requirements, and

b.

Any nonconforming characteristics relating to Article 28-7, Access, Circulation, Parking and Loading, are reduced to the greatest extent possible.

(b)

Change From One Nonconforming Use to Another by Special Exception. A nonconforming use of a structure, or a structure and premises in combination, may as a Special Exception be changed to another nonconforming use provided that the Zoning Board of Adjustment (ZBA) shall find that the change in use will be equally or more appropriate to the district and the neighborhood than the existing nonconforming use. In making these determinations, the ZBA must find that, in addition to the general requisite findings for all Special Exceptions pursuant to Section 28-9-3(b), Special Exceptions, of this ordinance, all of the following conditions will be satisfied:

(1)

The proposed change would not result in an increase in noise, vibration, dust, odor, fumes, glare or smoke detectable at the property line;

(2)

The numbers and kinds of vehicular trips to the site will be comparable to, or lower than, those associated with the existing use;

(3)

The use will not place increased demand on the amount and nature of outside storage or loading requirements, and there will be no net loss in the number of existing off-street parking spaces serving the existing use;

(4)

The visual appearance of the site and structure, including landscaping and screening will either remain unchanged or will be improved;

(5)

The proposed hours of operation for the use will result in an equal or lesser impact on the neighborhood;

(6)

Nonconforming characteristics of the existing use including loading, lighting, and landscaping, or residential density on the lot will remain unchanged or will be brought into greater conformance with the requirements of this ordinance; and

(7)

The area of the lot occupied by a nonconforming use will not be increased.

(c)

Expansion of a Nonconforming Use.

(1)

No nonconforming use of a structure shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered so that its area of lot coverage is increased except in changing the use of the structure to a permitted use or upon the authorization of a special exception by the Zoning Board of Adjustment (ZBA) in accordance with Section 28-8-4(c)(2).

(2)

A nonconforming use may, as a special exception, be enlarged or extended, so as to occupy an additional floor area that is no more than ten (10) percent of the total floor area occupied by the nonconforming use at the time it became nonconforming.

(3)

Any nonconforming use may be extended only to those parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance.

(4)

Any structure, land, or structure and land in combination, in or on which a nonconforming use is replaced by a permitted use, shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed.

(Ord. No. 2697, § II, 3-10-08)

(a)

Repairs and Maintenance. On any nonconforming structure or portion of a structure containing a nonconforming use, ordinary repairs and maintenance on such structures may be conducted, provided that:

(1)

Structural alterations of a nonconforming building or structure may be made only if the building is being altered to conform to the requirements of the district in which it is located, or to the extent authorized by the provisions of this article; and

(2)

Where the condition of a building constitutes abandonment or destruction under the criteria established by this article, the building may not be restored or rebuilt except in conformity with the regulations of the district in which it is located.

(3)

Existing external nonconforming features of a structure such as balconies, porches, attached decks, steps, stoops, eaves, chimneys and fire escapes may be removed and replaced. All reconstruction will be architecturally consistent with the primary structure. Minimum enlargement or alteration may be permitted when necessitated by the City's Building, Housing, Fire, or Life Safety Codes.

(b)

Continuation of Nonconforming Structures. Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restrictions on lot area, lot coverage, height, required yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long at it remains otherwise lawful, subject to the following provisions:

(1)

The structure shall not be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity;

(2)

Should the structure be moved for any reason for any distance whatsoever, it shall thereafter be more conforming to the regulations for the district in which it is located after it is moved; and

(3)

Where nonconforming use status applies to a structure and premises in combination, the removal or destruction of the structure shall eliminate the nonconforming status of the use of the land, except where the destruction is involuntary and due to natural causes, the nonconforming structure may be replaced pursuant to the provisions of this article.

(c)

Replacement of Nonconforming Structures That Have Been Destroyed. In districts other than the floodway within the Flood Hazard (FH) District, nonconforming structures that have been destroyed, due to natural causes or other involuntary reason, may be replaced in their prior nonconformity provided that the replacement commences within one year of the date of destruction. Reconstruction or restoration or replacement of the structure may be accomplished in a more conforming manner.

(d)

Removal and Replacement of Certain Nonconforming Residential Structures. In Downtown Residential (RD) and Urban Transitional (UT) Districts, certain nonconforming residential structures, constructed prior to 1945, and containing two (2) to six (6) dwelling units, may be removed and replaced as a Special Exception. The residential structures may be nonconforming with respect to the dimensional standards in Section 28-4-1(h), Table of Dimensional Regulations, of this ordinance, or to the supplemental standards in Section 28-5-4, Conversion of a Residential Building, of this ordinance. Should a Special Exception for the replacement of a residential structure pursuant to this Section be granted by the Zoning Board of Adjustment (ZBA), then the proposed replacement structure and related site redevelopment shall be subject to approval by the Planning Board in accordance with Section 28-9-4(f), Architectural Design Review, of this ordinance. The removal and replacement of a residential structure is allowed where the ZBA finds, in addition to the general requisite findings for all Special Exceptions pursuant to Section 28-9-3(b), Special Exceptions, of this ordinance, that the removal and replacement of the structure complies with the following provisions:

(1)

The existing structure is in violation of the City's Building, Housing, Fire, or Life Safety Codes, and the violations involve pervasive structural deficiencies, fire damage, or other damage which have substantially impaired the practicability of rehabilitation of the structure;

(2)

The existing structure is a blighting influence on the neighborhood;

(3)

The existing structure lacks historic value, or the historic value has been substantially diminished or eliminated through prior alterations. An advisory opinion from the Heritage Commission shall be required to assist the ZBA in making this finding;

(4)

The proposed replacement structure is more conforming with the provisions of this ordinance than the one that is proposed for removal;

(5)

The proposed replacement structure will comply with the City's Building, Fire, Housing, and Life Safety Codes;

(6)

The proposed dwelling units within the proposed replacement structure will meet the dwelling unit floor area standards contained in Section 28-5-3(b)(4), Minimum Size of Dwelling Units, of this ordinance;

(7)

The proposed replacement of the structure is consistent with the City's Housing and Community Development Plan and Program; and

(8)

The site redevelopment proposed in conjunction with the replacement of the structure shall comply to the greatest extent possible with all requirements and provisions of Article 28-7, Access, Circulation, Parking And Loading Requirements, of this ordinance, but under no circumstance shall less than one parking space be provided for each dwelling unit.

(Ord. No. 2834, § I, 7-11-11)

Except as provided in this article, the abandonment or destruction of a nonconforming use under the criteria established herein shall result in the termination of the nonconforming status of that use or structure. The property shall thereafter conform to the regulations of the district and the nonconforming use may not be resumed.

(a)

Destruction. A nonconforming structure shall not be reconstructed except in conformity with the provision of this ordinance. The destruction of a nonconforming structure shall be deemed to have occurred where any of the following conditions are met:

(1)

The cost to repair damage to the structure is more than seventy-five (75) percent of the replacement cost of the structure; or

(2)

The nonconforming structure has been found to be unsafe and unlawful by reason of physical condition due to a lack of repairs and maintenance, and has been so declared by any duly authorized public official.

(b)

Abandonment of a Nonconforming Use. The term "abandonment" as used herein shall mean the intentional or implicit discontinuance of a nonconforming use for a specified period of time. The normal, seasonal cessation of a use, or a temporary discontinuance for purposes of maintenance, rebuilding after damage or destruction or maintenance or improvements permitted under this article shall not be included in calculating the period of discontinuance. Any one of the following shall constitute evidence of the abandonment of a nonconforming use:

(1)

In the case of a structure or of a structure and land in combination, the visible or otherwise apparent discontinuance of the use of a building, other structure or premises, resulting from an owner's overt act or failure to act including but not limited to the removal of characteristic equipment or furnishings used in the performance of the use without its replacement by similar equipment or furnishings within a period of twelve (12) months;

(2)

In the case of nonconforming use of land, the cessation of such use for more than twelve (12) consecutive months or for twenty-four (24) months within any three-year period; or

(3)

In the case of a nonconforming structure which is destroyed due to natural causes, the failure to commence restoration within one year as required under Section 28-8-5(c) shall result in the termination of its nonconforming status.

(c)

Termination. Except as provided in Section 28-8-5(c), Replacement of Nonconforming Structures That Have Been Destroyed, of this ordinance, the abandonment or destruction of a nonconforming structure, building or use shall result in the termination of its nonconforming status.

(Ord. No. 2845, § I, 9-12-11)