The purpose of this subchapter is to regulate and limit the development and continued existence of uses, structures, and lots established prior to the effective date of this chapter that do not conform to the requirements of this chapter. Many nonconformities may continue, but the provisions of this subchapter are designed to curtail substantial investment in nonconformities and to bring about their eventual improvement or elimination in or to preserve the integrity of this chapter and the character of the town and its extraterritorial jurisdiction . Any nonconforming use , structure , or lot which lawfully existed as of the effective date of this chapter and which remains nonconforming, and any use, structure , or lot which has become nonconforming as a result of the adoption of this chapter or any subsequent rezoning or amendment to the text of this chapter, may be continued or maintained only in accordance with the terms of this subchapter.

(Ord. 2005-O3, passed 3-15-2005) (Am. Ord. 2016-O11, passed 9-13-2016)

   (A)   A use which was legally established but it is no longer classified as a permitted use but is now allowed as a special use or conditional use shall not be considered con-conforming if it was legally established under a previous ordinance.

      (1)   Repairs that are necessary to maintain and to correct any damage or deterioration to the structural soundness or interior and exterior appearance of a building or structure without expanding or altering the building or structure ;

      (2)   Maintenance of land areas to protect against health hazards and promote the safety of surrounding land uses;

      (3)   The addition of landscaping that increase the visual attractiveness of the property; and

      (4)   Repairs which are required to remedy unsafe conditions which cause a threat to public safety.

      (1)   If a nonconforming use of land or a structure containing a nonconforming use is destroyed by any means other than Acts of God, to an extent greater than 50% of its replacement cost at the time of destruction, then such use shall not be reestablished in any way that does not conform to the requirements of this chapter.

      (2)   However, if the destruction is a result of acts of God such as a natural disaster the use and or structure can be re-established to the previous extent as long as it is not in violation with federal, state or local law. For the purpose hereof, an “act of God” is a natural occurrence such as an earthquake, flood, fire, straight line winds, hurricane, tornado or similar event which causes great damage to property.

(Ord. 2005-O3, passed 3-15-2005; Am. Ord. 2016-O11, passed 9-13-2016)

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

   (B)   Whenever this chapter 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 hereby creating other nonconformities ), the owner of the nonconforming lot , or his successor in interest, may not take advantage of the provisions of division (A) of this section.

(Ord. 2005-O3, passed 3-15-2005)

   (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 a non-conformity.

   (B)   Subject to division (D) of this section, a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate such use.

   (C)   The volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the 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 section occur.

   (D)   Physical alternation of structures or the placement of new structures on open land are unlawful if they result 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 .

   (E)   Minor repairs, routine maintenance, major repairs and renovations (as defined in § 152.016) may be performed on properties where a nonconforming situation exists as follows:

      (1)   Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged; and

      (2)   Major repairs and renovations to properties that have nonconforming situations may be done pursuant to a special use permit issued by the Board of Commissioners . The Board of Commissioners shall issue such a permit if it finds that the proposed work will not result in a violation of any other paragraphs of this section (particularly paragraph E) or make the property more incompatible with the surrounding neighborhood.

(Ord. 2005-O3, passed 3-15-2005) (Am. Ord. 2016-O11, passed 9-13-2016)

   (A)   A nonconforming use may be changed to a conforming use. Thereafter, the property may not revert to a nonconforming use .

   (B)   A nonconforming use may be changed to another nonconforming use only in accordance with a special use permit issued by the Board of Commissioners . The Board shall issue such a permit if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use or combination of uses in operation at the time the application is made for the permit.

(Ord. 2005-O3, passed 3-15-2005) (Am. Ord. 2010-O20, passed 7-20-2010)

   (A)   When a nonconforming use is (1) discontinued for a consecutive period of 180 days, or (2) discontinued for any period of time without a present intention to reinstate the nonconforming use (maintaining minimum services, water, sewer, electricity), the property involved may thereafter be used only for conforming purposes, except as provided in division (B) of this section.

   (B)   The Board of Commissioners may issue a special use permit to allow a nonconforming use that has been discontinued for more than 180 consecutive days to be reinstated if it finds that (1) the nonconforming use has been discontinued for less than two years, and (2) the discontinuance resulted from factors that, for all practical purposes, were beyond the control of the person maintaining the nonconforming use .

   (C)   If the principal activity on property where a nonconformity other than a nonconforming use exists is (1) discontinued for a consecutive period of 180 days, or (2) discontinued for any period of time without a present intention of resuming that activity (maintaining minimum services, water, sewer, electricity), then that property may thereafter be used only in conformity with all of the regulations applicable to the district in which the property is located, unless the Board of Commissioners issues a special use permit to allow the property to be used (for a conforming purpose) without correcting the nonconforming situation. The Board shall issue such a permit if it finds that (1) the nonconforming situation cannot be corrected without undue hardship or expense, and (2) the nonconforming situation is of a minor nature that does not adversely affect the surrounding property or the general public to any significant extent.

   (D)   For purposes of determining whether a right to continue a nonconformity is lost pursuant to this subsection, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one apartment in a nonconforming apartmentbuilding or one space in a nonconforming manufactured 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 apartmentbuilding or manufactured 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 manufactured home is used as a nonconforming use on a residential lot where a conforming residential structure also is located, removal of that manufactured home for 180 days terminates the right to replace it.

   (E)   When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this subsection begins to run at the effective date of this chapter unless services are maintained (water, sewer, electricity).

(Ord. 2005-O3, passed 3-15-2005) (Am. Ord. 2010-O20, passed 7-20-2010; Am. Ord. 2016-O11, passed 9-13-2016)

   (A)   All work on any nonconforming project shall cease on the effective date of this chapter, 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 Commissioners (except as provided in division (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 position in some substantial way in reasonable reliance on the land use law as it existed before the effective date of this chapter and thereby would be unreasonably prejudiced if not allowed to complete his 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 chapter became effective;

      (2)   Except as provided in division (A)(1) of this section, no expenditures made more than 180 days before the effective date of this chapter shall be considered as evidence of reasonable reliance on the land use law that existed before this chapter 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 recoverable 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, or 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 (a) the total estimated cost of the proposed project, and (b) 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; and

      (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 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 (a) 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 ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development ; and (b) the developer had legitimate business reasons for making expenditures.

   (B)   The requirements of division (A) of this section shall not apply to a nonconforming project if the Administrator certifies that actual construction of that project began at least 180 days before the effective date of this chapter and that the work is at least 75% complete at the effective date of this chapter.

   (C)   The Board of Commissioners shall not consider any application for a special use permit authorized by division (A) of this section that is submitted more than 60 days after the effective date of this chapter, unless it waives this requirement for good cause shown.

   (D)   If the Board of Commissioners issues a special use permit pursuant to division (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.

   (E)   The Administrator shall send copies of this subsection to the 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 sent by registered mail not less than 15 days before the effective date of this chapter.

   (F)   The Board of Commissioners shall establish expedited procedures for hearing applications for special use permit under this subsection. These applications shall be heard, whenever possible, before the effective date of this chapter, so that construction work is not needlessly interrupted.

   (G)   When it appears from the developer ’s plans or otherwise that the nonconforming project was intended to be or reasonably could be completed in stages, segments or other discreet units, the Board of Commissioners shall 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 has made in connection with that nonconforming project.

(Ord. 2005-O3, passed 3-15-2005) (Am. Ord. 2010-O20, passed 7-20-2010)