Kent County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE XVI
Nonconforming Uses
§ 205-212 Definitions.
As used in this chapter, the following terms shall have the meanings indicated:
A nonconforming situation that occurs when the height, size or minimum floor space of a structure or the relationship between an existing building or buildings and other buildings or lot lines is not in compliance with the regulations applicable to the district in which the property is located.
A lot created at the effective date of this chapter (and not created for the purpose of evading the restrictions of this chapter) that does not meet the minimum area or width requirements of the district in which the lot is located.
A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable to the district in which the property is located.
§ 205-213 Purpose.
§ 205-214 Intent.
A.
Within the districts established by this chapter and later amendments hereto, there exists lots, structures and signs, uses of land and uses of structures or structures and premises in combination which were lawful before this chapter was passed and amended, but which would be prohibited or restricted under the terms of this chapter or future amendments.
B.
It is the intent of this chapter to permit the nonconformities to continue until they are removed, but not encourage their survival. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended except as hereinafter provided, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.
C.
Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the district involved. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of structure and land in combination shall not be extended or enlarged after passage of this chapter by attachment of a building or premises or additional signs intended to be seen from off the premises or by the addition of other uses of a nature which would be prohibited generally in the district involved.
D.
To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual construction has been carried on diligently. "Actual construction" is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.
§ 205-215 Proof of nonconforming status.
The burden of establishing that any nonconforming use is a legal nonconforming use as defined by this article shall, in all cases, be upon the owner of such nonconforming use and not upon the County.
§ 205-216 Nonconforming lots.
A.
In any district, a principal use and customary accessory buildings, where permitted, may be erected on any nonconforming lot, provided that all of the following conditions are met:
[Amended 3-13-2001 by Ord. No. 01-03]
(1)
Property created prior to August 1, 1991 (effective date of current Zoning Ordinance), that has street frontage of more than 100 feet shall have a minimum front yard setback of not less than 40 feet or not less than 75 feet when abutting a major roadway as designated on the Delaware Functional Classification Map; a side yard setback of not less than 15 feet and a rear yard setback of not less than 25 feet. Property created prior to August 1, 1991 (effective date of current Zoning Ordinance), that has street frontage of 100 feet or less shall have a minimum front yard setback of not less than 25 feet or not less than 75 feet when abutting a major roadway as designated on the Delaware Functional Classification Map; a side yard setback of not less than 10 feet and a rear yard setback of not less than 25 feet.
(2)
Any lot which was created prior to February 8, 1972, that does not have state-maintained road frontage, shall be required to meet the minimum side yard setback of not less than 15 feet and the rear yard setback of not less than 25 feet. The property line where the access is located shall be considered the front property line, with a minimum front yard setback of not less than 25 feet.
B.
Any lot reduced in area or yard dimensions failing to conform to the requirements of this chapter by reason of realignment and dedication of any public road or by reason of a condemnation proceeding, shall be a nonconforming lot. This provision shall not apply to roads created as part of a subdivision.
C.
Any nonconforming lot must be able to provide safe water supply and be able to dispose of domestic waste without causing a health hazard, as determined by the Delaware Department of Natural Resources.
D.
Any nonconforming lot must also be able to meet all applicable fire safety regulations as required by the Delaware State Fire Marshal's Office.
E.
Manufactured home parks established prior to the original Kent County Zoning Ordinance, adopted February 8, 1972, shall have a minimum setback (separation distance) requirement between units of not closer than 10 feet to any other existing manufactured home unit.
[Added 5-8-2001 by Ord. No. 01-08]
§ 205-217 Nonconforming buildings, structures and uses.
Nonconforming buildings, structures or uses may continue to exist, subject to the following provisions:
A.
No nonconforming use shall be changed to a use not permitted by this chapter in the particular district in which the building or structure is located except:
(1)
If no structural alterations are made, a nonconforming use of a building may be changed to a similar or more restricted use of the same or lesser intensity; or
(2)
Whenever a nonconforming use has been changed to a more restricted use, such use shall not thereafter revert to a less restricted use.
(3)
Any change in use of a nonconforming structure must be approved by the Board of Adjustment.
B.
Any residential use located on a lot having less road frontage or lot area than required herein may continue to exist, and may be enlarged, without increasing the number of dwelling units therein, provided that no such addition shall extend closer to any lot existing building surfaces or the required yard dimensions for the district, whichever is less.
C.
In the event that a nonconforming use ceases for a period of one year or more, then the nonconforming use shall be deemed abandoned and compliance with this chapter shall be required. The casual, temporary or illegal use of land or structure does not establish the existence of a nonconforming use.
D.
Any nonconforming building or structure which is damaged or destroyed by any cause, except for willful demolition, may be reconstructed to its former dimensions on the same lot and with the same nonconforming use. Reconstruction shall be substantially completed within a period of 12 months from the date of damage or the structures nonconforming status shall be lost. Nothing in these regulations shall prevent the strengthening or restoring to a safe condition of any building or structure declared to be unsafe.
E.
Any nonconforming billboard may be reconstructed, provided the sign area is not enlarged; the structure itself is not enlarged; the height of the structure is not increased; and the structure is rebuilt no closer to any property line or right-of-way. A building permit is required for any reconstruction, and the Department of Planning Services shall verify the height and dimensions of the existing sign prior to demolition/reconstruction. Any such reconstruction shall also be compliant with all applicable Delaware Department of Transportation regulations.
[Added 1-25-2011 by Ord. No. 11-02]
§ 205-218 Enlargement or extension of nonconforming buildings, structures or uses.
A.
The Board of Adjustment may authorize the extension or enlargement of a nonconforming use, with or without conditions, provided that:
(1)
The proposed extension or enlargement does not change to less restricted and more intense use.
(2)
The extension or enlargement does not exceed 25% of the gross square footage in use at the time of the creation of the nonconformity.
(3)
The extension or enlargement will not violate the height or coverage regulations for the district.
(4)
The enlargement or extension would not adversely affect adjacent properties, traffic patterns or the surrounding neighborhood.
B.
Any nonconforming structure may be enlarged, provided that the enlargement does not increase the degree of the nonconformity.
C.
Any extension, expansion or change in intensity of a legal nonconforming use may occur only when approved by the Kent County Board of Adjustment.
[Added 10-14-1997 by Ord. No. 97-20]
§ 205-219 County acquisition of tax delinquent property.
If the County acquires title to any property by reason of tax delinquency and such properties be not redeemed as provided by law, the future use of such property shall be in conformity with the then provisions of the zoning regulations of the County, or with any change of such regulations, equally applicable to other like properties within the district in which the property acquired by the County is located.