The purpose of this article is to regulate nonconforming uses, structures, and lots. The intent of these regulations is to:

(a)

Permit such nonconforming uses, structures, and lots to remain until removed, discontinued, abandoned, or changed to conform with the regulations of this chapter;

(b)

Recognize that nonconforming uses, structures, and lots are generally incompatible with the character of the districts in which they occur and, as such, in certain circumstances, such continuances should not be indefinite and that the nonconforming uses should gradually be removed in favor of uses, structures, and lots that conform to this chapter and the Official Zoning Map; and

(c)

Recognize that nonconforming uses, structures, and lots need not be entirely unchanged, and that under certain circumstances may change according to law and the provisions of this chapter.

Within the districts established by this chapter, or by amendments which may later be adopted, there exists or may exist lots, structures, uses of land and structures, and characteristics of use, which were lawful before this chapter was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendment. Some of such structures, lots, and uses are considered nonconforming. A nonconforming use, structure, or lot may continue, as it existed when it became nonconforming, until removed, discontinued, abandoned, or changed to conform to the regulations of this chapter. Except as provided within this article, no nonconforming use, structure, or lot shall be changed, moved, increased, enlarged upon, expanded, extended, or resumed after removal, discontinuance, or abandonment, or used as grounds for adding other lots, structures, uses of land and structures, or characteristics of use not in keeping with the regulations for the district in which such nonconformity exists.

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 or an affirmative governmental act has been obtained as set forth in Section 36.2-108 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 a permanent position and fastened in a permanent manner; except that where demolition or removal of an existing structure has been substantially begun preparatory to new construction, such demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently until the completion of the new construction involved, within any time limit set by a zoning permit or building permit issued under regulations in effect before passage of this chapter.

Any lot, legally in existence at the time this chapter was adopted, which does not meet the minimum lot size or minimum lot frontage requirements of the district in which it is located, as set forth in Article 3 of this chapter, may be developed or redeveloped for any principal use permitted in that district. Except for minimum lot size or lot frontage requirements, nothing contained in this section shall be construed to permit less than full compliance with any other requirements of this chapter.

(a)

Where a lawful structure exists at the time of passage or amendment of this chapter, which structure could not be built under the terms of this chapter by reason of restrictions on area, bulk, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as the structure is maintained in its then structural condition and is not enlarged or altered in any way which increases any nonconforming characteristic of the structure or nonconforming characteristic of its location on the lot.

(b)

Should such nonconforming structure be moved for any reason for any distance on the same lot or to any other lot, it shall thereafter conform to the regulations for the district in which it is located after it is moved. However, a nonconforming sign may be relocated on the same property, if such sign was moved due to highway, utility, or other construction for public purposes.

(c)

The owner of any nonconforming structure which is damaged or destroyed by an accidental fire, natural disaster or other act of God, or any other accidental means may repair, rebuild, or replace any such structure to its original nonconforming condition as long as the structure is not enlarged or altered in any way which increases its nonconforming characteristic. 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 Virginia Uniform Statewide Building Code, and any work done to repair, rebuild, or replace such structure shall be in compliance with the provisions of Section 36.2-333, Floodplain Overlay District. Unless such structure is repaired, rebuilt, or replaced within two (2) years of the date of the accidental fire, natural disaster or other act of God, or other accidental means which directly caused its damage or destruction, such structure shall only be repaired, rebuilt, or replaced in accordance with the regulations for the zoning district in which it is located. However, if the nonconforming structure is in an area under a federal disaster declaration and the structure has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then the owner shall have an additional two (2) years for the structure to be repaired, rebuilt, or replaced as otherwise provided in this subsection. For purposes of this section, "act of God" shall include any natural disaster or phenomena including a hurricane, tornado, storm, flood, high water, wind-driven water, earthquake, or fire caused by lightning or wildfire. Nothing herein shall be construed to enable the property owner to commit an arson under section 18.2-77 or 18.2-80, Code of Virginia (1950), as amended, and obtain vested rights under this section. "Accidental means" shall not include any intentional act by the property owner to damage or destroy the structure.

(Ord. No. 37633, § 17, 11-20-06; Ord. No. 38237, § 7, 9-15-08; Ord. No. 38554, § 1, 7-20-09)

(a)

Where, at the effective date of adoption or amendment of this chapter, a lawful use exists of a structure, individually or in combination with another structure, which use is made no longer permissible under the terms of the Chapter as enacted or amended, such use may be permitted so long as it is not abandoned for more than two (2) years and so long as the structure in which such use is located is maintained in its then structural condition. Abandonment means the intentional stopped use of the property, and that the property has been vacant for two (2) consecutive years. Should a structure in which such nonconforming use is located be enlarged, extended, reconstructed, or structurally altered, except as otherwise permitted by the provisions of this article, the use of such a structure thereafter shall conform to the regulations of the district in which it is located.

(b)

No nonconforming use shall be enlarged, intensified, increased, or extended to occupy a larger square footage of building or lot area than was occupied on the effective date of the adoption of, or an amendment to, this chapter, except as provided in subsection (c) below. Such intensification, increase, or extension shall include enlargement of the building or other structure, expansion of the use on the premises, or the erection of an additional principal or accessory structure associated with such nonconforming use on the property on which the nonconforming use is located.

(c)

Nonconforming uses may be expanded with the approval of the Board of Zoning Appeals, subject to the following provisions:

(1)

Such change shall be approved by the Board of Zoning Appeals by special exception, pursuant to the provisions set forth in Section 36.2-560;

(2)

Such change to the nonconforming use shall be permitted only upon the same lot as the nonconformity; and

(3)

Any increase in volume, area, or extent of nonconforming use shall not exceed an aggregate of fifteen (15) percent of the existing nonconforming use in the R-12, R-7, R-5, R-3, RM-1, RM-2, and MX Zoning Districts or twenty-five (25) percent of the existing nonconforming use in other zoning districts.

(d)

No nonconforming use shall be moved on the same lot or to any other lot which is not properly zoned to permit such use.

(e)

Any use which replaces, in whole or in part, a nonconforming use shall conform to the requirements of the district in which it is located and the nonconforming use shall not be resumed.

(f)

Any nonconforming use may be resumed or restored after the structure in which the use is located is damaged or destroyed by an accidental fire, natural disaster or other act of God, or other accidental means without the need to obtain a variance as provided in Section 36.2-561. The owner shall apply for a building permit and any work done to repair, rebuild, or replace the structure in which such use is located shall be in compliance with the provisions of the Virginia Uniform Statewide Building Code, and any work done to repair, rebuild, or replace such use shall be in compliance with the provisions of Section 36.2-333, Floodplain Overlay District. Unless such use is resumed or restored within two (2) years of the date of the natural disaster or replaced within two (2) years of the date of the accidental fire, natural disaster or other act of God, or other accidental means which directly caused its damage or destruction, such use shall only be restored or resumed in accordance with the regulations for the zoning district in which it is located. However, if the nonconforming use is in an area under a federal disaster declaration and the use has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then the owner shall have an additional two (2) years for the use to be restored or resumed as otherwise provided in this subsection. For purposes of this section, "act of God" shall include any natural disaster or phenomena including a hurricane, tornado, storm, flood, high water, wind-driven water, earthquake, or fire caused by lightning or wildfire. Nothing herein shall be construed to enable the property owner to commit an arson under section 18.2-77 or 18.2-80 of the Code of Virginia (1950), as amended, and obtain vested rights under this section. "Accidental means" shall not include any intentional act by the property owner to damage or destroy the structure in which the nonconforming use is located.

(g)

Where the use of a structure is deemed nonconforming with respect to the number of dwelling units or the residential use designation, unoccupied spaces such as porches, decks, or accessory buildings may be constructed or expanded.

(Ord. No. 37633, § 17, 11-20-06; Ord. No. 38554, § 1, 7-20-09; Ord. No. 39495, § 1, 9-4-12; Ord. No. 40710, § 1, 12-5-16)

(a)

On any structure devoted in whole or in part to any nonconforming use, ordinary maintenance work, or the repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, may be done, provided the cubic content of the building, as it existed at the time of passage or amendment of this chapter, shall not be increased.

(b)

Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared unsafe by any official charged with protecting the public safety, on order of such official; nor shall anything in this chapter be deemed to exempt any such building from any of the requirements and provisions of any other chapter of this Code or any other code or ordinance of the City.

After public notice and subject to appropriate conditions and safeguards, the Board of Zoning Appeals may, as a special exception, permit the change of a nonconforming use to another use not generally permitted in the district, provided the proposed use, as proposed to be conducted, shall be of a nature more in keeping with the character of the district than the use from which the change is proposed to be made. Failure to conduct the use in the manner approved by the Board shall be grounds for revocation of the special exception, pursuant to the procedures set forth in Section 36.2-560(e). Where such a special exception has been revoked, the nonconforming status of the use, individually or in combination, shall no longer exist, and future use of the structure or premises, individually or in combination, shall thereafter conform to the regulations of the district in which located.

If characteristics of use, such as signs, off-street parking or loading, landscaping, outdoor lighting, utilities, or other matters pertaining to use of structures or lands, individually or in combination, are in lawful existence at the time of adoption or amendment of this chapter, and are not as required by this chapter as adopted or amended, such characteristics of use may be continued, unless otherwise specified in this chapter, but no change shall be made which increases nonconformity with the provisions of this chapter as adopted or amended.

Uses in existence in a district at the time of adoption or amendment of this chapter, for which a special exception permit would be required if they were new uses, shall be deemed conforming uses so long as they continue in existence on the same lot. Once such use is abandoned for any continuous period longer than two (2) years, any new use of the premises must conform to the applicable district regulations.

(Ord. No. 40710, § 1, 12-5-16)