Within the districts established by this ordinance there may exist structures and uses of land, which were lawful before this ordinance was passed but will be prohibited under the terms of this ordinance. It is the intent of this ordinance to provide for their gradual elimination or improvement in order to further the general plan and overall goals of the town for orderly community development.

(Ord. Z2013-01, passed 9-12-2013)

   On any building or structure devoted in whole or in part to any nonconforming use, work may be done on ordinary fixtures, wiring or plumbing, providing that the cubic content of the building shall not be increased. Repairs may be made as required to keep the building or structure in a safe condition provided that no structural alteration or replacement shall be made.

(Ord. Z2013-01, passed 9-12-2013)

   a.   Where a lawful structure exists at the date of adoption of this ordinance that could not be built under the terms of this ordinance by reason of some characteristic of the structure or its placement on the lot, such structure may be continued as long as it remains otherwise lawful.

   b.   No such structure may be enlarged or altered in a way which increases its nonconformity.

   c.   Where a structure or building containing a nonconforming use is damaged or destroyed by any natural disaster, fire or accident, and repair or replacement exceeds 50% of the cost of construction of a comparable new building or structure, as determined by the Building Inspector, it shall not be reconstructed or enlarged to accommodate a nonconforming use. It may only be restored and used in conformity within the provisions of the district.

   d.   All nonconforming shipping containers, truck bodies, buses, mobile homes, semitrailers, or variations thereof, are prohibited as accessory structures, except as provided herein, and shall be removed 18 months from the date of this regulation. An extension of six months may be granted if progress has been and is being made at correcting the nonconformity. Any nonconforming accessory building remaining on property shall be removed or be subject to code enforcement action.

(Ord. Z2013-01, passed 9-12-2013; Ord. 2019-01, passed 6-13-2019)

   a.   Nothing in this ordinance shall allow a change from one nonconforming use to another.

   b.   Any legal nonconforming use of a building, structure, mobile home or premises may be continued; provided, however, that if the use is discontinued for a period of 180 calendar days, said use shall be considered abandoned and said building, structure or premises shall thereafter be used only for uses permitted within the district in which the use is located. A mobile home shall be removed from the district within 90 days after its abandonment. One-hundred eighty days shall be allowed to remove from the premises all debris, equipment, etc., that was associated with the nonconforming use. Three years shall be given for the removal or conversion of structures and buildings.

(Ord. Z2013-01, passed 9-12-2013)

   Nonconforming signs, in addition to this section, shall be regulated by the provisions of Article XIV of this ordinance.

(Ord. Z2013-01, passed 9-12-2013)

   a.   When a nonconforming lot can be used in conformity with all of the regulations (other than area, depth or width requirements) applicable to the district in which the lot is located, such use may be made as of right. Otherwise, the nonconforming lot may be used only in accordance with a special use permit issued by the Board of Adjustment. The Board of Adjustment shall issue such permit if it finds that: (i) the proposed use is one permitted by the regulations applicable to the district in which the property is located; and (ii) the property can be developed as proposed without any significant negative impact on the surrounding property or public health, safety or welfare. In issuing the permit authorized by this paragraph, the Board may allow deviations from applicable dimensional requirements (such as setback lines and yard minimums) if it finds that no reasonable use of the property can be made without such deviations.

   b.   Whenever this ordinance creates a nonconforming lot and the owner of the nonconforming lot also owns land adjacent to it, and a portion of this other land can be combined with the nonconforming lot to create a conforming lot (without thereby creating other nonconformities), the owner of the nonconforming lot, or his or her successors in interest, may not take advantage of the provisions of paragraph a. of this section.

(Ord. Z2013-01, passed 9-12-2013)

   a.   Except as specifically provided in this subsection, it shall be unlawful for any person to engage in any activity that causes an increase in the extent of nonconformity of a nonconforming situation.

   b.   Subject to paragraph d. of this subsection, a nonconforming use may not be extended throughout any portion of a completed building that, when the use was made nonconforming by this ordinance, was manifestly designed or arranged to accommodate such use. However, subject to § 5-9 (authorizing the completion of nonconforming projects in certain circumstances), a nonconforming use may not be extended to additional buildings or to land outside the original building.

   c.   Subject to § 5-9 (authorizing the completion of nonconforming projects in certain circumstances), a nonconforming use of open land may not be extended to cover more land that was occupied by that use when it became nonconforming, except that a use that involves the removal of natural materials from the lot (e.g., a quarry) may be expanded to the boundaries of the lot where the use was established at the time it became nonconforming, if 10% or more of the earth products had already been removed at the effective date of this ordinance.

   d.   The volume, intensity or frequency of use of property where a nonconforming situation exists and may be increased and equipment or processes used at a location where a nonconforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other paragraphs of this subsection occur.

   e.   Physical alteration of structures or the placement of new structures on open land is unlawful if it results in:

      1.   An increase in the total amount of space devoted to a nonconforming use;

      2.   Greater nonconformity with respect to dimensional restrictions such as yard requirements, height limitations or density requirements; or

      3.   The enclosure of previously unenclosed areas, even though those areas were previously used in connection with the nonconforming activity. An area is unenclosed unless at least 75% of the perimeter of the area is marked by a permanently constructed wall or fence.

   f.   For the purpose of determining whether a right to continue a nonconforming situation is lost pursuant to this subsection, all of the buildings, activities and operations maintained on a lot are generally considered as a whole. For example, failure to rent one apartment in a nonconforming apartment building or one space in a nonconforming mobile home park for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building or mobile home park as a whole is continuously maintained. But if a nonconforming use is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter. And so, if a mobile home is used as a nonconforming use on a residential lot where a conforming residential structure also is located, removal of the mobile home for 180 days terminates the right to replace it.

(Ord. Z2013-01, passed 9-12-2013)

   a.   All work on any nonconforming project shall cease on the effective date of this ordinance, and all permits previously issued for work on nonconforming projects shall be revoked as of that date. Thereafter, work on nonconforming projects may begin, or may be continued, only pursuant to a special use permit issued by the Board of Adjustment (except as provided in paragraph b. of this section). The Board shall issue such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his or her position in such substantial way in reasonable reliance on the land use law as it existed before the effective date of this ordinance and thereby would be unreasonably prejudiced if not allowed to complete his or her project as proposed. In considering whether these findings may be made, the Board shall be guided by the following.

      1.   All expenditures made pursuant to a validly issued and unrevoked building or zoning permit shall be considered as evidence of reasonable reliance on the land use law that existed before this ordinance became effective.

      2.   Except as provided in subparagraph 1. of this paragraph, no expenditures made between 180 days and the effective date of this ordinance shall be considered as evidence of reasonable reliance on the land use law that existed before this ordinance became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

      3.   To the extent that expenditures are reasonable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made expenditure to acquire a potential development site if the property obtained is just as valuable under the new classification as it was under the old, for the expenditure can be recovered by resale of the property.

      4.   An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of: (i) the total estimate cost of the proposed project; and (ii) the ordinary business practices of the developer.

      5.   A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him or her.

      6.   Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the Board may still find that he or she acted in good faith if he or she did not proceed with his or her plans in a deliberate attempt to circumvent the effects of the proposed ordinance, the Board may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that: (i) at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development; and (ii) the developer had legitimate business reasons for making expenditures.

      7.   Nothing in this section shall interfere with the provisions in § 1-11 (Vested Right) of this ordinance. The requirements of paragraph a. of this section shall not apply to a nonconforming project if the Zoning Administrator certifies that actual construction of the project began at least 180 days before the effective date of this ordinance and that the work is at least 75% complete at the effective date of this ordinance, notwithstanding the two-year vested rights, § 1-11 of this ordinance.

   b.   The Board of Adjustment shall not consider any application for the special use permit authorized by paragraph a. of this section that is submitted more than 60 days after the effective date of this ordinance, unless it waives this requirement for good cause shown.

   c.   If the Board of Adjustment issues a special use permit pursuant to paragraph a. of this section, it may attach such reasonable conditions to the permit as it finds necessary to reduce the extent to which the nonconforming project is incompatible with the surrounding neighborhood. In particular, the Board may require that work on the nonconforming project be continuously maintained, if possible, and that the project be completed as expeditiously as possible.

   d.   The Zoning Administrator shall send copies of this subsection to owners (and developers, if different from the owners) of all properties in regard to which permits have been issued for nonconforming projects or in regard to which a nonconforming project is otherwise known to be under construction. This notice shall be personally delivered or sent by registered or certified mail not less than 15 days before the effective date of this ordinance.

   e.   The Board of Adjustment shall establish expedited procedures for hearing applications for special use permits under this subsection. These applications shall be heard, whenever possible, before the effective date of this ordinance, so that construction work is not needlessly interrupted.

   f.   When it appears from the developer’s plans, or otherwise, that the nonconforming project was intended to be or reasonably could be completed in phases, segments or other discrete units, the Board of Adjustment shall determine and not allow the nonconforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to allow the developer to recoup and obtain a reasonable rate of return on the expenditures he or she has made in connection with that nonconforming project.

(Ord. Z2013-01, passed 9-12-2013)