The purpose of this section is to regulate nonconforming uses, lots, and structures in a manner consistent with sound planning and zoning principles. The general intent is that over time nonconforming uses, lots and structures will be discontinued in favor of uses, lots and structures conforming to this chapter and the zoning map. However, it is also recognized that nonconforming uses, lots, and structures need not be entirely static, and that under certain circumstances, nonconforming uses, lots and structures may change, according to law and the provisions of this chapter.

(Ord. No. 2021-002, 11-23-2021)

(a)

Nonconforming use: Any use that was lawful on the date of enactment of this chapter, or amendment thereto, which has been continued although otherwise rendered unlawful by such enactment or amendment. Any use that was unlawful on the date of enactment of this chapter, or amendment thereto, shall remain unlawful and shall not be a "nonconforming use".

(b)

Nonconforming lot: Any lot that was lawful on the date of enactment of this chapter, or amendment thereto, which has been continued in existence although otherwise rendered unlawful by such enactment or amendment thereto, or as a result of public action. Any lot that was unlawful on the date of enactment of this chapter, or amendment thereto, shall remain unlawful and shall not be a "nonconforming lot". A lot is nonconforming if one or more of the following standards are not met as a result of enactment or amendment of this chapter:

Lot area.

Lot width.

Lot frontage.

(c)

Nonconforming structure: Any structure, except signs, that was lawful on the date of enactment of this chapter, or amendment thereto, which has been continued in existence although otherwise rendered unlawful by such enactment or amendment thereto or as a result of public action. Any structure that was unlawful on the date of enactment of this chapter, or amendment thereto, shall remain unlawful and shall not be a "nonconforming lot". A structure is nonconforming if one or more of the following standards are not met as a result of enactment or amendment of this chapter or by virtue of public action:

Setbacks

Yards

Buffers

Chesapeake Bay

Stormwater management

Open space

Lot coverage

Tree canopy

Height

FAR

SUP

(Ord. No. 2021-002, 11-23-2021)

The nonconforming status of any nonconforming use, lot or structure shall adhere solely to the use of the land, and not to the owner, tenant, or other holder of any legal title to the property or the right to make use thereof.

(Ord. No. 2021-002, 11-23-2021)

(a)

If on September 19, 1983, any legal activity is being pursued, or any lot or structure is being legally utilized in a manner or for a purpose which does not conform to the provisions of this chapter, such manner of use or purpose may be continued as provided in this article.

(b)

A nonconforming use, lot or structure may continue as it existed when it became nonconforming. A nonconforming use, lot or structure shall not be changed, altered, repaired, restored, replaced, relocated, or expanded in any manner, including the addition of new accessory, ancillary, secondary or incidental uses, except as provided for in sections 58-18.6, et seq., of this chapter.

(c)

If any change in title of possession or renewal of any such lot or structure occurs, the use existing may be continued.

(d)

If any nonconforming use (structure or activity) is discontinued for a period exceeding two years after the enactment of this chapter or any amendments to this chapter, it shall lose its nonconforming status, and any further use shall conform to the provisions of this chapter.

(e)

Temporary seasonal nonconforming uses that have been in continual operation for a period of two years or more prior to the effective date of this chapter are excluded.

(f)

For the purposes of this section, cessation of a nonconforming use for the aforesaid period shall be conclusively presumed to establish discontinuance.

(g)

Any nonconforming use which is intentionally abandoned, without regard to the length of time which shall have passed, shall be terminated, and any further use shall conform to this chapter.

(h)

Operation of only an accessory, ancillary, secondary or incidental use to the principal nonconforming use during the two-year period shall not operate to continue the principal nonconforming use.

(i)

If a building permit has been issued, the building or structure was thereafter constructed in accordance with the building permit, and upon completion of construction, a certificate of occupancy or a use permit for the building or structure was issued, or (ii) the owner of the building or structure has paid taxes to the locality for such building or structure for a period in excess of 15 years, the building or structure shall be deemed nonconforming. Notwithstanding the above, the building official may require the building or structure to be brought into conformity with the Uniform Statewide Building Code.

(Ord. No. 2021-002, 11-23-2021)

(a)

A use that is accessory, ancillary, secondary or incidental to a permitted principal use cannot be made the basis for a nonconforming principal use.

(b)

No use accessory, ancillary, secondary or incidental to a principal nonconforming use shall be continued after nonconforming status is lost, except as may be approved under section 58-18.7 of this chapter.

(Ord. No. 2021-002, 11-23-2021)

A nonconforming use may be changed, altered, repaired, restored, replaced, relocated, or expanded only in accordance with the provisions of this section, and subject to the appropriate approvals (including, among others, verification of the nonconforming use, site plan approval, building permit approval and zoning approval otherwise required by law.

(1)

A nonconforming use may change to a conforming use.

(2)

A nonconforming use may change to a more restricted nonconforming use, as set forth in section 58-18.7 of this chapter.

(3)

A nonconforming use may be expanded throughout any part of a structure originally arranged or designed for such activity.

(4)

A lawful nonconforming structure may remain lawfully nonconforming when any of the development standards associated with the structure is reduced by virtue of public action.

(5)

A nonconforming structure may be repaired, provided such repair constitutes only routine maintenance necessary to keep the structure in the same general condition it was in when it originally became nonconforming, and subject to applicable Chesapeake Bay regulations.

(6)

A nonconforming structure damaged by casualty (as distinguished from ordinary wear and tear) may be restored in accordance with the provisions of section 58-18.8 of this chapter.

(7)

Minor alterations, cosmetic modifications, interior renovations, and similar changes for nonconforming structures may be permitted provided that such changes shall not increase the land area occupied by any portion of the nonconforming structure and shall not increase the gross floor area of any nonconforming structure, unless approved as an expansion pursuant to section 58-18.8.

(8)

Except for signs, nonconforming structures other than buildings (such as, but not limited to, underground storage tanks, private sewage disposal systems, and parking lots) may be restored or replaced when such structures become unsafe or unsound. A relocation on the same lot may be approved by the zoning administrator provided the new location is less nonconforming than the original location, and further provided that the new location shall not cause a greater detrimental impact on conforming uses in the neighborhood. Nonconforming signs may be repaired or replaced in accordance with the provisions of section 58-18.9 of this chapter

(9)

No structure used as a part of a nonconforming use shall be moved to any other lot unless such lot is properly zoned to permit the use, nor shall such a structure be moved within the lot on which it exists, unless the relocation is specifically provided for in section 58-18.8(5).

(10)

Prior to the approval of expansion of a nonconforming use under this section, nonconforming status shall be verified as set forth in section 58-18.11 of this chapter.

(Ord. No. 2021-002, 11-23-2021)

(a)

Nonconforming use may change as a matter of right to a more restricted nonconforming use, upon issuance by the zoning administrator of an approval for such a change. The zoning administrator's approval, which shall not be given until the nonconforming status of the use has been verified in accordance with section 58-18.11 of this chapter, shall include a determination in writing that the proposed use is "more restricted" than the existing nonconforming use, and a copy of such determination shall be forwarded to the planning commission and the Haymarket Town Council. If the zoning administrator determines the proposed use is not "more restricted" than the existing nonconforming use, the application for a change to a more restricted nonconforming use shall be denied. An appeal from such a determination shall be to the board of zoning appeals.

(b)

In determining whether a proposed use is a "more restricted" nonconforming use, the following factors, among others, shall be considered:

(1)

Whether the proposed use will change the size and scope of the existing use, and the magnitude of such change; and,

(2)

Whether the proposed use will increase the intensity of the nonconforming use, including hours of operation, traffic, noise, and similar impacts; and,

(3)

Whether the proposed use will have a more or less detrimental effect on conforming uses in the neighborhood; and,

(4)

How the quantum effect of the factors evaluated in preceding subsections (1), (2) and (3) above relate to the purpose, policies, and objectives of this chapter.

(c)

Upon the issuance of an approval to change to a more restricted nonconforming use, site plan approval, shall be required.

(Ord. No. 2021-002, 11-23-2021)

(a)

A nonconforming residential or commercial building that is damaged by any casualty may be restored to its condition prior to the casualty, provide such restoration is begun within one year of the date of the casualty and completed within two years of the date of the casualty.

(b)

Such restoration may include minor alterations, cosmetic modifications, interior renovations, or similar changes under the provisions of subsection 58-18.6(6) of this chapter, but such restoration shall not include any expansion unless approved under the provisions of section 58-18.6(6) of this chapter. Such restoration may include changes that make the building less nonconforming than it was prior to the casualty. Restoration to reduce or eliminate the nonconforming features to the extent possible shall not require a granting of a variance.

(c)

Prior to any restoration permitted by this section, the nonconforming status of the building shall be verified as set forth in section 32-601.60 of this chapter.

(d)

For all buildings except a one-family dwelling, restoration of a nonconforming building shall require site plan approval chapter.

(Ord. No. 2021-002, 11-23-2021)

Nonconforming signs shall be governed by the regulations set forth in this part, except where such regulations conflict with the following provisions:

(1)

Nonconforming signs shall not be expanded.

(2)

Nonconforming signs may be changed to reduce any nonconformity as to the number of signs permitted on a lot, sign height, sign size and sign type.

(3)

Signs that are nonconforming as to location may be relocated to be less nonconforming, provided such relocation shall not cause a greater detrimental impact on conforming uses in the neighborhood.

(4)

The face, message, or copy on a nonconforming sign may be changed, provided such change does not alter the sign type, unless the new sign type would be a conforming sign in all respects.

(5)

Whenever land is acquired due to the widening, construction, or reconstruction of any highway as defined in Code of Virginia, § 33.1-351 by purchase or by use of the power of eminent domain and upon such land is situated a lawfully nonconforming billboards sign as defined in Code of Virginia, § 33.1-351, such billboard sign may be relocated, if such sign meets all requirements under the provision of Code of Virginia, §§ 33.1-351 and 4.1-113.1 in the case of outdoor alcoholic beverage advertising, but is considered a nonconforming sign; such billboard sign may be relocated by the owner of the billboard sign, at the owner's sole cost and expense, to another location as close as practicable on the same property, adjusting the height or angle of the billboard sign to a height or angle that restores the visibility of the billboard sign to the same or comparable visibility as before the taking, provided the new location also meets all the requirements of Code of Virginia, § 33.1-95.2 and regulations adopted pursuant thereto. The owner of such billboard sign shall not be allowed to increase the size of the sign face, and a relocated billboard shall continue to be nonconforming in its new location. Maintenance of such nonconforming billboard signs shall be governed by the provisions of Code of Virginia, § 33.1-370.2.

(6)

A sign permit shall be required for any changes.

(7)

Whenever the provisions of this part require all nonconforming signs on a lot to be made conforming, such provision shall apply instead of the provisions of this section.

(Ord. No. 2021-002, 11-23-2021)

(a)

Any unimproved lot or record, located in any zoning district, that is nonconforming as to the lot area, lot width or lot frontage, or combination thereof, required in the zoning district in which the lot is located may be used for any use permitted by right or with a special use permit in such zoning district, provided all other standards of the zoning district are met.

(b)

Nonconforming lots may change as follows:

(1)

A nonconforming lot may become a conforming lot by meeting the current minimum lot size, lot width, and lot frontage requirements of the zoning district in which the lot is located through one of the following actions:

a.

A boundary adjustment between two contiguous nonconforming lots, or among three or more such nonconforming lots located in the same zoning district.

b.

A boundary adjustment between two contiguous lots, one being nonconforming and the other being conforming, provided such adjustment does not make the conforming lot nonconforming.

c.

Subdivision of any nonconforming lot under the provisions of article XXII of the Town of Haymarket Code (subdivision).

d.

Rezoning to a different zoning district to meet the development standards of that district.

(2)

A lawful nonconforming lot may remain lawfully nonconforming when the lot size, lot width and/or lot frontage are reduced by virtue of public action.

(3)

The boundaries of a nonconforming lot(s) may be adjusted along with the boundaries of a contiguous nonconforming or conforming lot(s), provided such adjustment does not result in an additional nonconforming lot being created; does not make the conforming lot(s) nonconforming, does not result in further reduction of lot frontage or lot width to less than that required at the front setback line, of any of the nonconforming lots that existed prior to the boundary adjustment.

(4)

When a building or structure to be constructed or expanded is located on more than one nonconforming lot, a boundary adjustment shall be required to consolidate the lots.

(5)

When a nonconforming lot is changed as set forth in subsections (b)(1)a—c. or (3) a plat of subdivision or boundary adjustment shall first be filed and approved in accordance with law. When a nonconforming lot is changed as set forth in subsection (b)(2) and (b)(4), only a deed of subdivision shall be filed and approved in accordance with law.

(c)

Any improved or unimproved lot meeting the minimum required lot size for the zoning district in which it is located, where a portion of the lot lies within an adjacent jurisdiction and the portion that lies within the Town of Haymarket by itself does not meet the minimum lot size for the zoning district in which it is located, may be deemed a nonconforming lot provided that:

(1)

The lot was otherwise lawfully created and lawfully existed as of September 19, 1983.

(2)

The lot, including both the combined portion located within the Town of Haymarket and the portion located within the adjacent jurisdiction, met the minimum lot size for the zoning district in which the lot was located at the time that it was created; and

(3)

The owner records a deed in the land records of Prince William County in which any portion of the lot is located stating that: "This property shall not be further subdivided, unless all resulting lots, whether they are located in whole or in part within the Town of Haymarket, meet the minimum required lot size for the Town of Haymarket zoning district in which they are located at the time of the subdivision."

Such a lot shall not be further subdivided, unless all resulting lots, whether they are located in whole or in part within the Town of Haymarket, meet the minimum required lot size for the Town of Haymarket zoning district in which they are located at the time of the subdivision.

(Ord. No. 2021-002, 11-23-2021)

Prior to approval of any change in a nonconforming use, lot or structure permitted by sections section 58-18.6 et seq., of this chapter, the lawful status of the use, lot or structure shall be verified by the zoning administrator. The zoning administrator may also verify the lawful status of a nonconforming use, lot or structure not proposed to change, upon the request of the owner of the property, or upon the request of a neighboring property owner.

(1)

In verifying the lawful status of a nonconforming use, lot or structure, the zoning administrator shall determine the following:

a.

Whether the use, lot or structure is in fact lawfully nonconforming; and, if so, then;

b.

The location and gross floor area (in square feet) of all buildings;

c.

The location, use and size of all structures other than buildings;

d.

The area of land (in square feet) devoted to all aspects of the nonconforming use, lot, or structure (including buildings, parking, outside storage, travel ways, open spaces, etc.); and

e.

A description of the principal use(s) and all accessory, ancillary, secondary or incidental uses that make up the lawful nonconforming use as a whole.

(2)

The decision of the zoning administrator under subsection (1) shall be final after 30 days unless an appeal is filed to the board of zoning appeals.

(3)

The decision of the zoning administrator shall be based on information provided by the owner of the property, on information provided by other persons with knowledge of the property, and on any other information available to the zoning administrator as public record. Such information may include, but shall not be limited to, permits, licenses, tax records, receipts, business records, photographs, plats, plans, bills, utility information, assessment information, and sworn affidavits from individuals with personal knowledge of the use and/or the property.

(4)

The zoning administrator shall keep a record of all verified nonconforming uses, lots, or structures. Not less than every two years after the original date of verification, the owner or operator of a verified nonconforming use, lot or structure shall file a report with the zoning administrator, on forms available from the town planner, showing that the nonconforming use, lot or structure has not ceased for a two-year period, or been abandoned, and that the use is being operated in accordance with the decision rendered as a part of the nonconforming verification process, and any subsequent changes approved.

(Ord. No. 2021-002, 11-23-2021)