The following sections contain provisions for nonconforming uses and structures. ^[2]

(Ord. No. 17-O-13, 8-8-2017)

(a)

Purpose and intent. It is the town council's intent to protect vested rights from impairment, while at the same time to provide for the gradual elimination of nonconforming uses, nonconforming structures, and nonconforming lots, to achieve eventual conformance with the policies of the town council as expressed in this chapter.

(b)

Limitations on nonconformities. Nonconformities are not supposed to be perpetuated, renewed or replaced. Nonconformities should not be extended, enlarged or rendered more permanent, and shall be brought into compliance with this chapter upon the elimination of the nonconformity.

(c)

Adaptive reuse. The town council intends to allow the adaptive reuse and convenient and efficient utilization of structures in the historic district overlay and other older areas that may have been developed under different standards, by allowing some flexibility in the treatment of nonconformities where the specific nonconformity is not increased.

(d)

Interpretation of unlawful versus nonconforming. Any use, lot, parcel or structure that was unlawful on the date of the enactment of this chapter, October 26, 1971, or amendment thereto, shall remain unlawful and shall not enjoy the status of a nonconforming use, nonconforming structure or nonconforming lot.

(e)

Nonconforming status runs with land. Nonconforming status shall adhere to the land and shall not be personal to the owner, tenant or possessor of land.

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Continuation of nonconforming use. Continuation of a nonconforming use shall be subject to the following:

(1)

Time of nonconformity. A nonconforming use may continue as it existed when it became nonconforming.

(2)

Partial use of structure. A nonconforming use within a part of a structure shall not affect the status of uses in the remaining part of the structure.

(b)

Accessory uses not basis for nonconforming status. A use that is accessory or incidental to a permitted principal use cannot be made the basis for a nonconforming principal use. Therefore, no use, including signage, accessory to a principal nonconforming use, shall continue after such principal use terminates, except as may be approved under section 78-160.2(e)(6), change of a nonconforming use to a different nonconforming use that decreases the degree of nonconformity.

(c)

Discontinuance of nonconforming use. Discontinuing a nonconforming use may result in loss of nonconforming status subject to the following:

(1)

Two year discontinuance. If any nonconforming use is discontinued for a continuous period of two years or more, or is changed to or replaced by a conforming use, it shall lose its nonconforming status, except as provided in section 78-160.2(e)(6), change of a nonconforming use to a different nonconforming use that decreases the degree of nonconformity. Any subsequent use shall conform to the provisions of this chapter.

(2)

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

(d)

Changes to nonconforming uses, generally. Changes to nonconforming uses shall only be permitted subject to the following general provisions; adherence to more specific provisions in this article may also be required.

(1)

Loss of status. Changes not permitted under the standards of this article shall cause loss of nonconforming use status and shall meet the applicable provisions of this chapter.

(2)

Conforming use. A nonconforming use may be changed to a conforming use.

(3)

Lot limitations. No nonconforming use shall be expanded or moved to any other lot or within the lot on which it exists unless such lot is zoned to permit the use.

(4)

Decrease in nonconformity. A nonconforming use may change to a different nonconforming use that decreases the degree of nonconformity, as set forth in section 78-160.2(e)(6).

(5)

Permitted changes and required approvals. A nonconforming use, or the structure in which it exists, may be changed, altered, structurally altered, repaired, restored, replaced, relocated or expanded without loss of nonconforming use status only in accordance with this article and the specific provisions of section 78-160.2(e), and subject to the appropriate approvals, including building permit approval, and zoning inspection approval.

(e)

Specific provisions for changes to nonconforming uses. Permitted changes to nonconforming uses shall be subject to the following specific provisions:

(1)

Repairs. A conforming or nonconforming structure housing a nonconforming use may be repaired, provided that such repair constitutes only routine maintenance necessary to keep the structure in the same general condition it was in when the use originally became nonconforming. Inherently unsafe nonconforming uses, or the structures housing those uses, may be restored or replaced, where otherwise allowed by law.

(2)

Minor alterations. Minor alterations, cosmetic modifications, interior renovations, and similar nonstructural changes to an existing structure housing a nonconforming use may be permitted subject to the following standards:

a.

Such changes shall not increase the land area occupied by any aspect of the nonconforming use, and shall not increase the gross floor area of any structure that is the site of a nonconforming use; and

b.

Such construction shall meet all current requirements of this chapter.

(3)

Expansion and other alterations. A nonconforming use occupying an existing structure may expand or be altered only in accordance with the following provisions:

a.

An existing conforming or nonconforming structure devoted to a nonconforming use shall not be enlarged, extended, constructed, reconstructed, moved or structurally altered except in accordance with sections 78-160.2(d) through 78-160.2(e), and

b.

Any nonconforming use may be extended throughout any parts of a structure which were manifestly arranged or designed for such use at the effective date of this chapter, October 26, 1971, or amendment thereto. Such use shall not be extended to occupy any land outside the structure, except accessory uses that do not compound the nonconforming uses shall be allowed under section 78-155.8 and section 78-150.6(e) of this chapter.

(4)

Restoration of a nonconforming use damaged by casualty. A structure housing a nonconforming use damaged by casualty (as distinguished from ordinary wear and tear) may be restored in accordance with the following provisions:

a.

Restoration of a structure housing a nonconforming use shall require approval as set forth in section 78-155.8 or section 78-150.6(e), whichever is appropriate, of this chapter.

b.

A structure housing a nonconforming use that is damaged by any casualty to an extent of 50 percent or less of its assessed value (exclusive of foundation) at the time of the casualty according to the records maintained by the county department of tax administration, may be restored to its condition prior to the casualty. Such restoration shall be begun within 12 months of the date of the casualty and completed within 24 months of the date of the casualty.

c.

The restoration shall not include any expansion unless approved under the provisions of section 78-160.2(d) through 78-160.2(e). Such restoration may include changes that make the use less nonconforming than it was prior to the casualty.

d.

A structure housing a nonconforming use that is damaged by any casualty to an extent more than 50 percent of its assessed value (exclusive of foundations) at the time of the casualty according to the records maintained by the county department of tax administration, shall not be restored except as follows:

1.

Restoration shall be permitted to a conforming use.

2.

If the use is as a single-family detached or single-family attached dwelling, restoration shall be permitted, provided such restoration is begun within 12 months of the date of the casualty and completed within 24 months of the date of the casualty, and the dwelling occupies the same space that it occupied prior to such casualty. In no instance shall such structure be used to accommodate a greater number of dwelling units than such structure accommodated prior to any such work.

e.

In the floodplain overlay district, the modification, alteration, repair, reconstruction or improvement that amounts to less than 50 percent of its market value is elevated or flood proofed or both to the greatest extent possible.

(5)

Change to nonconforming use in structures located within the floodplain overlay district. The use of land and use of structures housing nonconforming uses within the floodplain overlay district are subject to the limitations of this subsection:

a.

Existing structures in a floodway area, zone A1—A30, or zone AE, shall not be expanded or enlarged unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed expansion would not result in any increase in the 100-year flood elevation.

b.

Within the floodplain overlay district, existing structures and/or uses shall not be expanded or enlarged unless the effect of the proposed expansion or enlargement on flood heights is fully offset as part of the improvements, such that there is no net flood height increase resulting from the expansion or enlargement.

(6)

Change to a different nonconforming use that decreases degree of nonconformity. A nonconforming use may change to a different nonconforming use that decreases the degree of nonconformity or a conforming use, upon issuance by the zoning administrator or his designee of a written approval for such a change in accordance with the following provisions:

a.

The approval shall include a determination that the proposed use is more restricted than the existing nonconforming use. If the zoning administrator or his designee determines the proposed use is not more restricted than the existing nonconforming use, the application shall be denied.

b.

In determining whether a proposed use decreases the degree of nonconformity, the following factors among others shall be considered:

1.

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

2.

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

3.

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

4.

Whether the proposed use would require more parking. A more restricted nonconforming use shall never be a use which requires more parking than the existing nonconforming use.

c.

In the issuance of an approval to change to a conforming use or to a different nonconforming use that decreases the degree of nonconformity, the procedures, set forth in section 78-155.8 or section 78-150.6(e), whichever is appropriate, of this chapter shall be followed.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Relationship with nonconforming uses. Where a nonconforming structure is the site of a nonconforming use, the regulations for nonconforming structures and nonconforming uses shall both be applied. In case of conflict, the rules for nonconforming uses shall prevail.

(b)

Continuation. A nonconforming structure may continue as it existed when it became nonconforming, as long as it is maintained in its then structural condition.

(c)

Special status for certain nonconforming structures. Notwithstanding any other provision in this chapter to the contrary, if (i) the town has issued a building permit, the building or structure was thereafter constructed in accordance with the building permit, and upon completion of construction, the town issued a certificate of occupancy or a use permit therefor, or (ii) the owner of the building or structure has paid taxes to the town for such building or structure for a period of more than the previous 15 years, such building or structure is not illegal and subject to removal solely due to such nonconformity. Such building or structure shall be nonconforming. Such building or structure shall be brought in compliance with the Uniform Statewide Building Code, provided that to do so shall not affect the nonconforming status of such building or structure.

(d)

Changes to nonconforming structures, generally. Changes to nonconforming structures shall only be permitted subject to the following general provisions; adherence to more specific provisions in this article may also be required.

(1)

Loss of status. Changes to nonconforming structures not permitted under the standards of this article shall cause loss of nonconforming structure status and shall meet the applicable provisions of this chapter.

(2)

Conforming structure. A nonconforming structure may be changed to a conforming structure by conforming to all requirements of this chapter.

(3)

Lot limitations. No nonconforming structure shall be moved to any other lot or within the lot on which it exists unless the nonconforming structure is brought into conformity with this chapter.

(4)

Permitted changes and required approvals. A nonconforming structure may be changed, altered, structurally altered, repaired, restored, replaced, relocated or expanded only in accordance with this section and the specific provisions of section 78-160.3(e) and only with the appropriate approvals, including building permit approval and zoning inspection permit approval.

(5)

Conflict. This section and the specific provisions of section 78-160.3(e) supplement the provisions of section 78-160.2(a), continuation of nonconforming uses, and shall be read in concert with it. In case of conflict, this section shall prevail.

(e)

Specific provisions for changes to nonconforming structures. Permitted changes to nonconforming structures shall be subject to the following specific provisions:

(1)

Repairs. A nonconforming structure may be repaired, provided that such repair constitutes only routine maintenance necessary to keep the structure in the same general condition it was in when it became nonconforming. Inherently unsafe nonconforming structure may be restored or replaced, where otherwise allowed by law.

(2)

Minor alterations. Minor alterations, cosmetic modifications, interior renovations, and similar nonstructural changes may be permitted subject to the following standards:

a.

Such changes shall not increase the land area occupied by any aspect of the nonconforming use, and shall not increase the gross floor area of any structure that is the site of a nonconforming use; and

b.

Such construction shall meet all current requirements of this chapter.

(3)

Expansion and other alterations. A nonconforming structure may expand or be altered only in conformance with the following provisions:

a.

A nonconforming structure may be enlarged, extended, reconstructed, altered or structurally altered in ways that do not increase or intensify the elements of nonconformity, under the procedures of section 78-155.8 or section 78-150.6(e) or if applicable, section 78-155.6 of this chapter.

b.

The nonconforming structure shall be brought into conformity with this chapter, including the parking requirements set out in Article X of this chapter, whenever the nonconforming structure is enlarged, extended, reconstructed or structurally altered, in such a way that increases or intensifies the elements of nonconformity.

(4)

Restoration of a nonconforming structure damaged by casualty (excluding "Acts of God" or natural disaster). A nonconforming structure damaged by casualty (as distinguished from ordinary wear and tear) may be restored in accordance with the following provisions:

a.

A nonconforming structure that is damaged by any casualty (excluding natural disaster or other act of God) to an extent of 50 percent or less of its assessed value (exclusive of foundations) at the time of the casualty according to the records maintained by the county department of tax administration may be restored to its condition prior to the casualty, provided that such restoration is begun within 12 months of the date of the casualty and completed within 24 months of the date of the casualty. For developments containing multiple buildings that are not assessed individually by the county department of tax administration, the total assessed value of all buildings on the property shall be used when calculating whether or not any casualty damage is equivalent to 50 percent or less.

b.

The restoration shall not include any expansion unless approved under the provisions of sections 78-160.3(b) and 78-160.3(d). Such restoration may include changes that make the structure less nonconforming than it was prior to the casualty.

c.

A nonconforming structure that is damaged by any casualty to an extent more than 50 percent of its assessed value (exclusive of foundations) at the time of the casualty according to the records maintained by the county department of tax administration shall not be restored except as follows:

1.

Restoration shall be permitted to a conforming structure.

2.

If the nonconforming structure is within the historic district overlay, or is designed and used as a single-family detached or single-family attached dwelling and such single-family detached or single-family attached use is allowed in the zoning district in which the nonconforming structure exists, restoration of such structures shall be permitted. The restoration shall begin within 12 months of the date of the casualty and shall be completed within 24 months of the casualty. The structure shall occupy the same space that it occupied prior to such casualty. In no instance shall any residential structure covered by this subsection 78-160.3(e)(4) be used to accommodate a greater number of dwelling units than such structure accommodated prior to any such work.

d.

Restoration of a nonconforming structure shall necessitate approval as set forth in section 78-155.8 or section 78-150.6(e), of this chapter.

e.

The reconstruction of preexisting buildings or structures destroyed or damaged by casualty is allowed, provided the reconstruction is in the same location and creates no more impervious area than the preexisting building or structure.

f.

For purposes of this section, 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 and shall be subject to the provisions of section 78-160.3(e)(5). Nothing herein shall be construed to enable the property owner to commit an arson under Code of Virginia, § 18.2-77 or § 18.2-80, and obtain vested rights under this section.

(5)

Restoration of a nonconforming structure after damage by a natural disaster or other act of God.

a.

The owner of any residential structure or commercial building damaged or destroyed by a casualty or act of God is permitted to repair, rebuild, or replace such building or structure to eliminate or reduce the nonconforming features to the extent possible, as determined by the zoning administrator using the standards in this chapter. Such owner may take such a step without the need to obtain a variance as provided in Code of Virginia, § 15.2-2310. If such building or structure is damaged greater than 50 percent of its market value and cannot be repaired, rebuilt or replaced in accordance with the standards of this chapter, as determined by the zoning administrator using the standards in this chapter, the owner shall have the right to restore the structure or building to its original nonconforming condition.

b.

The owner shall apply for a building permit and any work done to repair, rebuild or replace such building shall be in compliance with the provisions of the Uniform Statewide Building Code (Code of Virginia § 36-98 et seq.), and any work done to repair, rebuild or replace such building shall be in compliance with the provisions of the flood plain regulations adopted as a condition of participation in the National Flood Insurance Program. These provisions are found in section 78-60.2 of this chapter.

c.

Unless such building is repaired or rebuilt within two years of the date of the natural disaster or replaced within two years of the date of the natural disaster or other act of God, such building shall only be repaired, rebuilt or replaced in accordance with the provisions of section 78-160.3(e)(4)b. of this chapter. However, if the nonconforming building is in an area under a federal disaster declaration and the building has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then the owner of the building shall have an additional two years from the date of the natural disaster for the building to be repaired, rebuilt or replaced as otherwise provided in this section.

(6)

Change to nonconforming structures located within the floodplain overlay district (FPO). Nonconforming structures within the floodplain overlay district are subject to the additional standards of this subsection:

a.

In the floodplain overlay district, the modification, alteration, repair, reconstruction or improvement that amounts to less than 50 percent of its market value shall be elevated or flood proofed or both to the greatest extent possible.

b.

If the structure in the floodplain overlay district is designed and used as a single-family detached dwelling that is a permitted use in the zoning district pursuant to Table 78-70.2(d): Table of Principal and Permitted Allowed Uses, it may be restored in its location prior to casualty so long as:

1.

The restoration is begun within 12 months and completed within 24 months of the casualty;

2.

The modification, alteration, repair, reconstruction or improvement is elevated or flood proofed or both to the greatest extent possible;

3.

The structure occupies the same space it occupied prior to the casualty; and

4.

No dwelling units are added.

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Lots predating the zoning chapter. Lots existing prior to adoption of the town zoning ordinance shall be subject to the following:

(1)

Conforming structures on a nonconforming lot. Structures on a nonconforming lot are not, by virtue of being located on a nonconforming lot, nonconforming structures. Such structures maybe continued, enlarged, extended, reconstructed or structurally altered in such a way that does not increase the nonconformity of the lot or any nonconformity of the structure and in such a way that is consistent with the requirements of this chapter.

(2)

Use of improved lots existing before October 26, 1971. If, in a residential zoning district an improved lot (excluding outlots) was part of a subdivision or division of land evidenced by plat or deed, or both, recorded prior to October 26, 1971, the effective date of this chapter, then such lot, either as a single lot, or in combination with other lots accomplished by lot line adjustment under section 70-206 of this Code, may be used, developed, redeveloped on the same footprint after casualty, for any currently or prospectively permitted use in the applicable zoning district. This use, development or redevelopment after casualty may take place even though the lot does not meet applicable minimum lot area or lot width requirements, provided that all other requirements of this chapter shall be satisfied.

(3)

Use of unimproved lots existing before October 26, 1971. If, in a residential zoning district an unimproved lot (excluding outlots) was part of a subdivision or division of land evidenced by plat or deed, or both, recorded prior to October 26, 1971, the effective date of this chapter, then such lot, either as a single lot, or in combination with other lots accomplished by lot line adjustment under section 70-206 of this Code, may be developed for any currently permitted use in the applicable zoning district upon the town council's issuance of a conditional use permit for such development. This development may take place even though the lot does not meet applicable minimum lot area or lot width requirements, provided that all other requirements of this chapter shall be satisfied.

(4)

Lots rezoned or subdivided after December 9, 1997. Subsections (2) and (3) of this section shall not apply to any lot which after the effective date of this section, December 9, 1997, is rezoned or subdivided at the request of the owner, except this last clause shall not apply to reduction in lot area or lot width resulting from a governmental acquisition of a portion of the lot for a public purpose.

(5)

Use of nonconforming lot after casualty. Use, redevelopment or redevelopment after casualty of a nonconforming lot or the structures thereon in a manner not permitted by this section is prohibited.

(b)

Change of nonconforming lot. Nonconforming lots in residential zoning districts may change as follows:

(1)

Lot line adjustment to reduce nonconformity. A nonconforming lot may be increased in lot size, lot width, or both, to make the lot less nonconforming. This action shall be accomplished by a boundary line adjustment under section 70-206 of this Code.

(2)

Lot line adjustment to nonconforming lot. The boundaries of a lot that is nonconforming as to lot size or lot width, or both, may be adjusted by a lot line adjustment under section 70-206 of this Code, with the boundaries of any contiguous conforming or nonconforming lot, provided that such adjustment does not make the lot or lots more nonconforming, that no new lot is created, and the lot width along the resulting front setback line or lines is not decreased to less than the minimum required within the respective zoning district.

(3)

Lot line adjustment to create conforming lot. Two or more conforming or nonconforming lots may be assembled to create a conforming lot by a boundary line adjustment under section 70-206 of this Code.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Change in use causing loss of nonconforming use status may require additional parking. In any change of a nonconforming use which causes a loss of nonconforming use status, any required parking shall be provided under Article X of this chapter only for any marginal increase of parking required for the new use over the parking required for the existing use. Computation of parking required under the existing use and under the new use shall be based on the land or building space subject to change. Any increase in required parking shall be provided in addition to any existing conforming parking.

(b)

Change in use located in existing nonconforming structure may require additional parking. If the amount of parking provided for a structure is inadequate to meet the requirements of Article X of this chapter, based upon the existing use, then the structure is nonconforming with respect to parking. If the use within such structure is changed, then additional parking which meets the requirements of Article X of this chapter shall be provided only for any marginal increase of parking required for the new use over the parking required for the existing use. Computation of parking required under the existing use and under the new use shall be based on the land or building space subject to change. Any increase in required parking shall be provided in addition to any existing conforming parking.

(c)

Correction of landscaping, parking, and buffering upon expansion of a nonconforming use or nonconforming structure in a business district. If the amount of parking, landscaping, or buffering or screening provided for a structure or use in a business zoning district is inadequate to meet the requirements of Article V, Development Standards, based upon the existing use, the structure or use is nonconforming with respect to parking, landscaping, or buffering or screening. The expansion of such structures and uses shall be subject to the following standards for parking, landscaping, buffering, screening and lighting:

(1)

Expansions resulting in less than a 75 percent increase in gross square footage. Expansions that result in less than a 75 percent increase in gross square footage of the existing structure(s) require that parking, landscaping, screening, buffering and lighting be improved a rate equivalent to:

(For example, if the addition is 25 percent of the size of the existing building and the site contains only 50 percent of the required landscaping, 50 percent of the required landscaping for the entire area shall be provided, bringing the landscaping on the site to 100 percent of the total required in Article XI: Development Standards.) Existing landscaping on the site shall be retained or replaced but shall not count toward the required percentage of new landscaping (see section 78-110.5, site landscaping.)

(2)

Expansions in gross square footage. Expansions resulting in an increase of gross square footage of the existing structure(s) by greater than 75 percent require the site to comply fully with the standards of section 78-110.5, site landscaping.

(3)

Landscaping and screening on physically constrained lands. Lands physically constrained from complying with these provisions shall comply with the maximum extent practicable for landscaping and screening, as determined by the zoning administrator. No allowance for physically constrained land shall be permitted for the required number of parking spaces.

(Ord. No. 17-O-13, 8-8-2017)