Frederick County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE IX
Nonconformities
§ 165-901.01 Intent.
Pursuant to Code of Virginia, § 15.2-2307, any lot, use, structure, or sign which subsequently becomes nonconforming as a result of adoption or amendments to this chapter may continue as it was at the time of the adoption or amendment, as long as it remains otherwise lawful. Such nonconforming lots, uses, structures, and signs shall conform to all laws in effect at the time when the use, structure, or sign was established.
§ 165-901.02 General.
If any change of ownership, possession, or lease of any legally nonconforming use, structure, or sign occurs, the use, structure, or sign may continue according to the requirements of this article unless otherwise provided in a Conditional Use Permit (CUP), proffer, or variance related to the property.
§ 165-902.01 Nonconforming uses.
A.
Any legally established use which does not conform to the requirements of this chapter at 12:01 a.m. on May 14, 2026, may be continued so long as it remains otherwise lawful. Seasonal legally nonconforming uses or uses that are, by their nature, used on a regularly recurring but not constant basis, that have been in continuous operation for a period of two years or more prior to the adoption of this chapter may be continued.
B.
Whenever a nonconforming use is changed to another use, it shall only be changed to a use that is of equal or less nonconformity in terms of the type or intensity of the use.
C.
A nonconforming use may not be moved on the same lot or to any other lot which is not properly zoned to permit such use.
D.
In accordance with Code of Virginia, § 15.2-2307(C), if a use does not conform to the zoning prescribed for the district in which such use is situated, the owner, lessee, or contract purchaser of such building, structure, or use may apply for a rezoning or CUP without charge by the County or any agency thereof for fees associated with such filing, provided that:
(1)
A business license was issued by the County for such use;
(2)
The holder of such business license has operated continuously in the same location for at least 15 years; and
(3)
All relevant local, state, and federal taxes or delinquent charges related to such use have been paid.
E.
If any legally nonconforming use or sign is discontinued for a period exceeding two years after the enactment of this chapter, it shall be deemed abandoned, and any use or sign thereafter shall conform to the requirements of this chapter.
F.
Pursuant to Code of Virginia, § 15.2-2307(D), the illegal use of land or buildings shall not be sufficient to establish the existence of a nonconforming use, and the existence of a nonconforming use on a part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract.
§ 165-902.02 Nonconforming lots of record.
A.
Any lot of record at the time of the adoption or amendment of this chapter, which has less area or frontage than required by this chapter, may be used for uses allowed by this chapter when the dimensional requirements of the underlying zoning district are satisfied.
B.
The current setbacks for the particular Zoning District in question are to be applied for all lots, unless the most recent legally approved and recorded plat of the property clearly depicts all appropriate terminology and numeric information for different setbacks.
§ 165-902.03 Nonconforming structures, buildings, and improvements.
A.
Structures and land may continue to be used as they were on the effective date of this chapter so long as they remain otherwise lawful.
B.
A nonconforming structure or building may not be moved or expanded on the same lot or to any other lot which is not properly zoned to permit such use.
C.
The Board of Supervisors may allow the expansion of legally nonconforming structures and the construction of new structures with the same setback as the existing legally nonconforming structure, provided that all other conditions of this chapter are met.
D.
Pursuant to Code of Virginia, § 15.2-2307(D), a nonconforming building, structure, or improvement shall include those circumstances where:
(1)
A building permit or other permit authorizing construction has been issued, and the building or structure was constructed in accordance with the building permit, and upon completion, a Certificate of Occupancy was issued;
(2)
A property owner, relying in good faith on the issuance of a building permit, incurs extensive obligations or substantial expenses in diligent pursuit or a building project in conformance with the issued Building Permit and the Uniform Statewide Building Code; or
(3)
The owner of the building or structure has paid real estate taxes to the County for such building or structure for a period of more than the previous 15 years.
§ 165-902.04 Expansion of nonconforming uses and structures.
A.
Legally nonconforming uses and structures may expand in accordance with the provisions of this section. Measurements shall be based on gross floor area for structures and total land area for uses.
B.
Legally nonconforming uses, structures, and signs listed below may not expand. These uses and structures may be modified if the result decreases the degree of nonconformity.
(1)
Landfills.
(2)
Junkyards.
(3)
Signs.
C.
Legally nonconforming uses listed below may be expanded or modified one time if the expansion or modification does not increase the degree of nonconformity and does not expand the area of the structure more than 3,500 square feet or 50% of the area covered by the structure prior to the expansion or modification, whichever is less.
(1)
Parking lots.
(2)
Loading areas.
(3)
Outdoor storage and processing areas.
(4)
Outdoor display areas.
D.
All legally nonconforming uses and structures not specified in Subsection B or C, above, may be expanded or modified one time if the expansion or modification does not increase the degree of nonconformity and:
(1)
Does not result in an overall expansion of the areas of the structure by more than 2,000 square feet or 50% of the area covered by the structure prior to the expansion or modification; and
(2)
Meets all conditions established in § 165-503.16 of this chapter, if the use or structure is located within the floodplain districts.
E.
The size of legally nonconforming residential structures may be expanded beyond 2,000 square feet or 50% of the area covered by the structure prior to the expansion, whichever is less, if the expansion or modification does not increase the degree of nonconformity.
§ 165-902.05 Repairs and maintenance.
A.
All legally nonconforming signs that are destroyed or damaged in any manner may be repaired or restored only if all work is completed within six months from the date the legally nonconforming sign was destroyed or damaged.
B.
In accordance with Code of Virginia, § 15.2-2307(E), if 50% or more of a nonconforming residential or commercial building or structure is damaged or destroyed by accidental fire, natural disaster, or other Act of God, such building or structure may be repaired, rebuilt, or replaced without need of a variance, if:
(1)
The nonconforming features are eliminated or reduced to the extent possible;
(2)
The owner applies for a building permit and any work done to repair, rebuild or replace such building or structure complies with the provisions of the Uniform Statewide Building Code;
(3)
All applicable requirements of the Floodplain Overlay District of this chapter are met; and
(4)
The work is done within two years, unless the building is in an area under a federal disaster declaration and was damaged or destroyed as a direct result of the disaster, in which case the time period shall be extended up to two additional years, not to exceed four years total.
C.
Owners of property damaged by an accidental fire have the same rights to rebuild such property as if it were damaged by an Act of God. Nothing herein shall be construed to enable the property owner to commit arson and obtain vested rights under this section.
D.
For purposes of this section, "Act of God" shall include any natural disaster or phenomena including a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, or fire caused by lightning or wildfire.
E.
Pursuant to Code of Virginia, § 15.2-2307(F), a property owner may replace an existing on-site sewage system for any existing building in the same general location on the property, even if a new on-site sewage system would not otherwise be permitted in that location, unless access to a public sanitary sewer is available to the property, subject to the following conditions:
(1)
If access to a sanitary sewer system is available, then connection to such system is required.
(2)
Any new on-site system shall be installed in compliance with applicable regulations of the Virginia Department of Health in effect at the time of the installation.
F.
Pursuant to Code of Virginia, § 15.2-2307(H), if a nonconforming manufactured home is removed other than by natural disaster or public action, it may not be replaced except as provided below, unless it complies with regulations within the chapter. Any such replacement home shall retain the valid nonconforming status of the prior home.
(1)
Nothing in this article shall be construed to prevent the landowner or homeowner from removing a lawfully nonconforming manufactured home from a mobile or manufactured home park and replacing that home with another comparable manufactured home that meets the current HUD manufactured housing code. In such mobile or manufactured home park, a single-section home may replace a single-section home and a multi-section home may replace a multi-section home.
(2)
The owner of a lawfully nonconforming mobile or manufactured home not located in a mobile or manufactured home park may replace that home with a newer manufactured home, either single- or multi-section, that meets the current HUD manufactured housing code.
