A.

General

A nonconforming use is any lawful existing use, whether of a structure or a tract of land, which does not conform to the use regulations of the zoning district in which it is located, either on the effective date of these Regulations or as a result of any subsequent amendment thereto. A structure that is conforming in use but which does not conform to the height, setback, land coverage, parking, loading space or other bulk requirements of these Regulations, shall not be considered to be nonconforming within the meaning of these Regulations. No existing use shall be deemed nonconforming solely because of the existence of nonconforming accessory signs. The casual, temporary or illegal use of land is insufficient to establish the existence of a nonconforming use.

For the purposes of these Regulations, "enlargement" shall mean the increase in size of any structure containing a nonconforming use, the construction of an additional structure on the same lot, or an increase in the land area occupied by a nonconforming use. "Extension" shall mean any change in the types of activities taking place in connection with the nonconforming use.

B.

Restrictions on Nonconforming Uses

The nonconforming use of land or structures may be continued, subject to the following:

1.

Except as provided in Sections 129.0.B.3 and 129.0.E:

a.

No nonconforming use shall be extended or enlarged to occupy more land area or more area within a building than that occupied by the use at the time it became nonconforming;

b.

No structure which contains a nonconforming use shall be enlarged unless the use therein is changed to a conforming use or the new portion of the structure is used for a conforming use; and

c.

No structure which contains a nonconforming use shall be structurally altered unless such alterations are required by law; provided however, that such maintenance and repair work as is required to keep a nonconforming structure in sound condition shall be permitted.

2.

In no event shall a nonconforming use be:

a.

Relocated to an adjacent lot, or

b.

Changed to another nonconforming use.

3.

The following exceptions shall be permitted if approved by the Department of Planning and Zoning:

a.

A nonconforming single-family dwelling, located on a lot recorded prior to the effective date of the zoning text or map amendment that made it nonconforming, may be altered, renovated or enlarged under the provisions of the Zoning Regulations in effect for the lot immediately prior to the date on which the dwelling became nonconforming.

b.

A structure which contains a nonconforming use may be altered or enlarged in order to provide restrooms or other facilities required by the Americans with Disabilities Act.

c.

The relocation or construction of minor structures which are part of a lawful nonconforming use is permitted if such relocation or construction does not significantly affect the function, dimensions or value of the nonconforming use. No such relocation or construction may create a new nonconforming use or violation of the bulk regulations.

d.

Within a nonconforming mobile home park, mobile homes may be replaced and additions or extensions to mobile homes may be built subject to the following provisions:

(1)

The number of mobile homes in the park shall not be increased above the number existing on the date the use became nonconforming unless an enlargement of the use is approved by the Hearing Authority.

(2)

The mobile home park shall be subject to the bulk requirements of the R-MH District for mobile home parks (Section 113.1.D) rather than the bulk requirements of the district in which it is located.

(3)

Mobile homes and other structures that existed on May 6, 1996, but do not meet the minimum bulk requirements of the R-MH District, are subject to the requirements of Section 113.1.E, "Noncompliance with Setback Requirements in Existing Mobile Home Parks."

4.

If any nonconforming use of land or structure, or any portion thereof, either ceases for any reason for a period of more than two years, or is changed to a conforming use, then any future use of such land or structures shall be in conformity with the standards specified by these Regulations for the zoning district in which such land or structure is located.

C.

Replacement of Destroyed Nonconforming Structures

If any structure containing a nonconforming use is destroyed by fire, flood or other calamity, it may be immediately restored and the nonconforming use continued as a matter of right to the same size and dimensions and in the same location as the destroyed building on the same lot, subject to the provisions of Section 129.0.B.1.a and b, without application to the Hearing Authority, provided that a building permit for restoration is issued within one year from the date upon which such building was destroyed, and further provided that construction pursuant to said building permit begins within six months after the date of issuance of such permit, and is substantially completed within one year. The building permit shall be revoked if these conditions are not met.

If there is no Site Development Plan approved by Howard County for the nonconforming structure, or the approved Site Development Plan does not accurately reflect site improvements existing prior to the calamity, additional documentation shall be submitted to the Department of Planning and Zoning. Such documentation may include photographs of the structure and site improvements, aerial photography, or other materials that provide clear evidence of the scope the development on the property. This provision, however, does not apply to any property which is the subject of a zoning enforcement case. Such properties may only be confirmed as nonconforming uses if they are processed in accordance with Section 129.0.D.2 of these Regulations.

Nothing contained herein shall be deemed to permit the intentional demolition and reconstruction of any building containing a nonconforming use by owner or occupant. Nothing in these Regulations shall prevent the strengthening of or restoring to a safe condition any building declared to be unsafe by the Department of Inspections, Licenses and Permits.

The provisions of this section do not exempt the owner from compliance with other applicable laws and regulations.

D.

Confirmation of Nonconforming Uses

1.

The factual existence of a nonconforming use may be confirmed by the Director of Planning and Zoning, or the Director's Designee, upon review of a petition filed by the property owner. The petition shall contain the following:

a.

A statement and plans or other illustrations fully describing the magnitude and extent of the nonconforming use.

b.

A statement identifying the date the use became nonconforming to the use provisions of the Zoning Regulations.

c.

Documentation substantiating the existence of the use on the date it became nonconforming and clearly demonstrating the continued and uninterrupted use or operation thereof from the specified date to the time of filing the application. The burden shall be on the property owner to establish the existence of the nonconforming use.

2.

Whenever the Department of Planning and Zoning issues a zoning violation notice alleging the illegal use of property, the owner may raise as a defense the fact that the alleged illegal use is a nonconforming use. If such a defense is raised, the owner shall also seek confirmation that the use is nonconforming and shall submit a petition which includes all of the information required by Subsection a above. At the property owner's discretion, such a petition may be filed with either the Department of Planning and Zoning as provided herein or the Hearing Authority.

If the owner chooses to file the petition with the Hearing Authority, the petition shall be advertised and the property posted with the time, date and place of the initial hearing for at least 30 days immediately before the hearing, in accordance with the advertising and posting requirements of Section 2.203 of the Howard County Code. In its Decision on such a petition, the Hearing Authority may determine and confirm the existence of the nonconforming use pursuant to its original jurisdiction.

3.

Petitions for confirmation of a nonconforming use filed with the Department of Planning and Zoning shall be heard in accordance with the procedures given in Section 100.0.H.

4.

The decision of the Director of Planning and Zoning or the Director's Designee is appealable to the Hearing Authority on a de novo basis.

E.

Extension, Enlargement or Alteration of Nonconforming Uses

1.

The Hearing Authority may authorize the extension or enlargement of a nonconforming use or the alteration of outdoor use areas or of a structure containing a nonconforming use, with or without conditions, provided:

a.

That any changes or additions to the activities taking place in connection with the nonconforming use will not change the use in any substantial way;

b.

That an enlargement may not exceed 100% of the gross floor area of structures or 100% of the gross acreage in the case of nonconforming land, above that which legally existed at the time the use first became nonconforming;

c.

That the boundaries of a nonconforming use may be enlarged only to provide additional parking area;

d.

That an enlargement would not cause a violation of the bulk regulations for the zoning district in which the property is located;

e.

That the extension, enlargement or structural alteration would not cause an adverse effect on vicinal properties.

2.

A Decision and Order approving an extension or enlargement of a nonconforming use shall become void unless a building permit conforming to the plans for which the approval was granted is obtained within two years, and substantial construction in accordance therewith is completed within three years from the date of the decision. An approval for which a building permit is not required shall become void unless the extension or enlargement is implemented within two years from the date of the decision. If a decision is appealed, the time period shall be measured from the date of the last decision.