Talbot County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE VI
Nonconforming Lots, Structures and Uses
§ 190-47 General.
47.1
Purpose.
A.
This article is intended to allow lawfully established nonconforming lots, uses and structures to continue, but to limit the number and extent of nonconforming uses and structures by prohibiting or restricting enlargement, reestablishment after abandonment, reconstruction or change in use.
B.
Except as otherwise provided in this article, any nonconforming lot, structure or use may continue, provided it remains otherwise lawful.
47.2
Certification of nonconforming status.
A.
Authority; certification required for development. The Planning Director shall have the authority to certify that a lot, structure or use is legally nonconforming. An application to the Department of Planning and Zoning for certification of nonconforming status for a lot, structure or use:
B.
Application. The application shall include, as applicable:
1.
Documentation that the lot was legally created.
2.
Documentation that the structure was legally constructed, including all structure dimensions and lot coverage.
3.
Documentation that the use was legally established, continuously maintained and not abandoned since its establishment, including documentation of the area of land and structures devoted to the nonconforming use.
C.
Burden of proof.
1.
The burden of establishing the legal nonconforming status shall be upon the owner of the land.
2.
The casual, temporary, intermittent or illegal use of land is insufficient to establish the existence of a nonconforming use or structure.
3.
The existence of a nonconforming use shall not be construed to establish a nonconforming use on the entire premises. The portion of the premises where the legal nonconforming use exists must be defined.
D.
Certificate of nonconformity. Upon finding that a legal nonconforming lot, structure or use exists, the Planning Director shall issue a certificate of nonconformity. The certificate shall specify the nature and extent of the legal nonconformity, including the land and building area devoted to a nonconforming use, the extent of nonconforming lot coverage, the dimensions of nonconforming structures and other dimensions as applicable.
E.
Appeal. The Planning Director's determination may be appealed to the Board of Appeals within 30 days of certificate issuance.
F.
Register of certificates. The Planning Director shall maintain a register of certificates issued for nonconforming lots, structures and uses.
47.3
Abandonment. If a nonconforming use is discontinued or abandoned, or a nonconforming structure is unused or abandoned, for 12 consecutive months, the land or structure shall not thereafter be used except in conformity with the regulations of the district in which it is located. Cessation of the use for the purpose of repair or remodeling, or a temporary vacancy between occupants while the property is being actively marketed and maintained in good condition, shall not constitute discontinuance or abandonment.
47.4
Replacement and reconstruction. Nonconforming uses and structures may be replaced or reconstructed subject to the restrictions in this article. As used in this article:
A.
"In-kind replacement" means the replacement of a structure with another structure that is identical to or smaller than the original structure in all dimensions, including footprint area, height, width, length, and use. An in-kind replacement may include minor modifications or relocations, such as differences in roofline or small shifts in location that do not increase any nonconformity, as determined by the Planning Director.
B.
"Reconstruction" means the replacement or restoration of a structure after substantial damage has occurred due to fire, flood or other natural cause, or intentional demolition. Substantial damage is damage sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50% of the structure's market value before the damage occurred.
47.5
Nonconformities to certain Critical Area requirements.
B.
Certain land uses in the Critical Area are restricted by standards in Article IV, Land Uses, to a maximum floor area or site area. Uses in the Critical Area that are nonconforming to such Critical Area requirements shall not be enlarged to increase the nonconformity through the provisions of this article for expansion of a nonconforming use or nonconforming structure.
§ 190-48 Nonconforming uses.
48.1
Change of use; in-kind replacement.
A.
A nonconforming use shall not be changed to any use other than a use currently permitted in the zoning district in which it is located.
B.
A structure utilized for a nonconforming use shall not be moved, or razed and rebuilt, unless the use is changed to a permitted use or unless approved by the Planning Director as an in-kind replacement.
48.2
Minor modification of nonconforming use. The Planning Director shall have authority to approve the following minor modifications of nonconforming uses:
A.
In-kind replacement of a building.
B.
Minor alterations that do not increase or relocate the area devoted to a nonconforming use. These include installment of fencing or landscaping, driveway or access improvements, handicapped access ramps, and other minor site or building features.
C.
Replacement of a nonconforming mobile or manufactured home with another mobile or manufactured home, provided that the replacement home:
48.3
Expansion and major modification of nonconforming uses. Expansion of a nonconforming use, or modifications to site improvements deemed major by the Planning Director, shall be permitted only if approved by the Board of Appeals, subject to the following criteria:
A.
Applications shall be subject to the procedures and requirements of § 190-56 for Board of Appeals special exception applications.
B.
Expansion of structures utilized for nonconforming uses shall be limited to no more than 20% of the gross floor area of the nonconforming use or 3,000 square feet, whichever is greater; provided, however, that under no circumstances shall any such expansion exceed 100% of the gross floor area of the nonconforming use. Within the RC District, the cumulative result of multiple expansions must comply with this standard and the lot coverage limits for the entire site. Any request beyond this limit must seek growth allocation.
[Amended 9-27-2022 by Bill No. 1525; 6-13-2023 by Bill No. 1530]
C.
Expansion of areas of a nonconforming use not involving structures, such as outdoor parking and storage, shall be limited to no more than 20% of the site area existing on the date the use became nonconforming.
D.
The Board of Appeals shall evaluate applications for expansion or modification of a nonconforming use applying the standards for special exceptions in § 190-56.2. The Board of Appeals shall consider the recommendation of the Planning Commission.
E.
Expansion of a golf course in the RC District shall be permitted if the new "in play" expansion area is:
1.
Limited to no more than 20% of the total "in play" area of the course located within the RC District as of August 13, 1989;
2.
Set back a minimum of 300 feet from tidal water or tidal wetlands;
3.
Set back a minimum of 150 feet from edge of tributary streams; and
4.
If accessed by cart paths, the cart paths shall be designed to minimize environmental impacts, including the number, location, configuration and construction of the crossings.
48.4
Reconstruction.
A.
A structure used for a nonconforming use that is substantially damaged by fire or natural cause may be reconstructed at the same location, provided that:
1.
A building permit for restoration/reconstruction shall be issued only to the person(s) who owned the property at the time of the destruction.
2.
Restoration must be started within one year of the destruction and completed in accordance with the building permit.
3.
The Planning Director may grant a single extension of this time limit, for a period not to exceed one year, only to the same property owner.
B.
The reconstructed use shall not increase the extent of the nonconformity.
C.
A restored or rebuilt structure that is to be occupied by the nonconforming use must be an in-kind replacement of the destroyed structure.
D.
If the use is not replaced or restored within the required time period, any future use on the site shall comply with the current zoning requirements.
§ 190-49 Nonconforming lots.
49.1
Development activity on nonconforming lots.
A.
A legally existing lot that does not meet current lot size or width requirements shall not be treated as a separate lot if it is combined for zoning purposes with another lot or parcel as provided in § 190-51.
B.
If it is not combined for zoning purposes with another lot or parcel, a nonconforming lot may be developed or reconfigured, provided that the proposed improvements will comply with all other requirements of this chapter and applicable environmental regulations, including required setbacks, lot coverage limits, and preservation of habitat protection areas to include streams, wetlands and forest.
C.
If located within the Critical Area:
1.
A nonconforming lot may be improved if the proposed development activity complies with Critical Area purposes and requirements. The extent of development on the site shall be limited as necessary to allow compliance with Critical Area standards within the constraints of the nonconforming lot.
49.2
Consolidation or reconfiguration of nonconforming lots in the Critical Area.
A.
The proposed consolidation or reconfiguration of legally existing, nonconforming lots of record within the Critical Area Overlay District shall not:
B.
Proposed consolidation or reconfiguration of lots shall identify habitat protection areas and result in no greater impacts to any habitat protection area than impacts that could have resulted from the existing lot configuration. Protective measures shall be provided to minimize impacts and restoration measures to mitigate for impacts.
C.
The proposed consolidation or reconfiguration of lots shall be in conformance with the revision plat procedures of § 190-71 and the Critical Area Commission's criteria for lot consolidation and reconfiguration found in COMAR 27.01.02.08.
D.
Final written decision or order. The County shall issue a final written decision or order granting or denying an application for a consolidation, reconfiguration, or a modification or reconsideration of a consolidation or reconfiguration. A copy of the final written decision or order and, if applicable, the approved development plan shall be submitted to the Critical Area Commission within 10 business days by U.S. mail to the Commission's business address.
[Added 5-28-2019 by Bill No. 1411]
E.
Appeal process. The time period during which the Critical Area Commission may file an appeal or a petition for judicial review begins on the date of the Commission' s receipt of the final written decision or order. The Critical Area Commission may file an appeal or a petition for judicial review within 30 days of the date of the Commission' s receipt of the final decision or order.
[Added 5-28-2019 by Bill No. 1411]
F.
A permit or approval of any type on a property affected by the final written decision or order may not be issued until after the expiration of the time within which the Critical Area Commission may file an appeal or a petition for judicial review.
[Added 5-28-2019 by Bill No. 1411]
49.3
Residential density in the Critical Area.
A.
Development on any lot within the Critical Area that does not comply with Critical Area density requirements is subject to the following as required by COMAR 27.01.02.07.B.
B.
Except as otherwise provided, the County shall permit a single lot or parcel of land that was legally of record on August 13, 1989, to be developed with a single-family dwelling if a dwelling is not already placed there (notwithstanding that such development may be inconsistent with the density provisions of this chapter), provided that:
1.
It is on land where development activity as of December 1, 1985 progressed to the point of the pouring of foundation footings or the installation of structural members; or
2.
It is either a legal parcel of land, not being part of a recorded or approved subdivision, that was recorded as of December 1, 1985, or land that was subdivided into recorded, legally buildable lots, where the subdivision received the County's final approval prior to June 1, 1984, if:
a.
At the time of development, the land is brought into conformance with the Critical Area Program insofar as possible, including the consolidation or configuration of lots not individually owned; or
b.
The land received a building permit subsequent to December 1, 1985, but prior to local program approval.
3.
It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the County's final approval between June 1, 1984, and December 1, 1985.
4.
It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the final approval after December 1, 1985, and provided that either development of any such land conforms to the IDA, LDA or RCA requirements in this chapter or the area of the land is counted against the County's growth allocation (§ 190-55.5).
C.
Nothing in this section may be interpreted as altering any requirements for development activities set out in the water-dependent facilities section or the habitat protection areas section of this chapter.
49.4
Division of parcel with two or more primary dwellings.
A.
A parcel or lot that has been developed with two or more primary single-family residences prior to August 13, 1989, in the Critical Area and June 22, 1991, in the non-Critical Area may be divided into lots that do not conform to the density provisions of this chapter. The subdivision shall comply in all other respects with the provisions of this chapter.
B.
In no case shall the property be divided into more lots or parcels than there are existing single-family residences. One residence must be located on each parcel.
C.
Property containing employee residences, detached accessory dwellings, or hotel or motel uses may not be divided under this section.
49.5
Lot reduced in size by government action.
A.
If a lot is reduced in size below the minimum lot size by a government action (such as right-of-way acquisition), the lot shall be considered conforming for purposes of these regulations. The property owner is not required to seek a certificate of nonconformity prior to development activity.
B.
If a lot is nonconforming to lot width by a government action (such as a comprehensive rezoning), the property owner shall seek a certificate of nonconformity prior to development activity.
§ 190-50 Nonconforming structures.
50.1
Expansion that does not increase nonconformity.
A.
Expansion of a nonconforming structure is permitted if the proposed area of expansion complies with bulk requirements (setback, lot coverage and height).
B.
Vertical expansion of nonconforming buildings is permitted without a variance for buildings within the Shoreline Development Buffer and buildings nonconforming to lot coverage requirements, if the expansion:
50.2
Change of use. The use of a nonconforming structure shall not be changed to a more intensive use.
50.3
Variance required to expand.
A.
A variance is required to expand a nonconforming structure if the expanded area does not comply with bulk requirements.
B.
The variance must be approved by the Board of Appeals, unless the expansion can be approved by the Planning Director as a minor variance as provided in Subsection C below. Procedures and standards for variance applications are established in § 190-58.
C.
Expansion of a nonconforming structure may be submitted as a minor variance application if the application meets all of the following criteria:
1.
The expansion encroaches no further than the existing structure into a required setback or buffer.
2.
Within the Critical Area, the expansion will not increase the structure's lot coverage by more than 20% of the nonconforming portion of the structure existing on August 13, 1989. The cumulative result of multiple expansions must comply with this standard and the lot coverage limits for the entire site.
3.
Outside the Critical Area, the expansion will not increase the structure's lot coverage by more than 20% of the nonconforming portion of the structure existing on June 22, 1991. The cumulative result of multiple expansions must comply with this standard and the lot coverage limits for the entire site as applicable.
4.
The expansion will not result in lot coverage that exceeds the limits set forth in this chapter.
50.4
Reconstruction and relocation.
A.
Reconstruction. Reconstruction of a nonconforming structure is permitted without approval of variances, provided that all of the following requirements are met:
1.
The substantial damage or destruction is not the result of neglect and deferred maintenance due to abandonment of the structure for 12 or more consecutive months. A structure that has been abandoned for 12 or more consecutive months is no longer a legal nonconforming structure.
2.
A building permit for restoration/reconstruction shall be issued only to the person(s) who owned the property at the time the substantial damage occurred.
3.
Construction must be started within one year of the substantial damage and completed in accordance with the building permit.
4.
The Planning Director may grant a single extension of this time limit, for a period not to exceed one year, only to the same property owner.
5.
The replacement shall be in-kind.
6.
Increases in the elevation of a building required by floodplain regulations shall not be counted as an increase in height unless the elevation increase creates additional gross floor area.
7.
If the Planning Director determines that a proposed reconstruction is not in-kind, the new structure shall be permitted only with approval of the applicable variances.
8.
If a structure in the Shoreline Development Buffer is replaced under this section, the replacement structure shall not be expanded through the minor variance provisions. Instead, any expansion of the replacement structure that does not comply with bulk requirements shall require a variance application to the Board of Appeals.
B.
Relocation. A nonconforming structure may be relocated or demolished and replaced at a different location on the same lot, provided that any one of the following requirements is met:
1.
The relocated structure complies with all bulk requirements.
2.
The Board of Appeals grants the necessary variances.
3.
A minor variance application may be submitted for a decision by the Planning Director if the relocated structure lessens the extent of the nonconformity; is of the same or smaller dimensions than the original structure; and is located in the same general area of the lot.
4.
A minor variance application may be submitted for a decision by the Planning Director for relocated structures within the Shoreline Development Buffer, provided that:
a.
The relocated structure lessens the extent of the nonconformity; is of the same or smaller dimensions than the original structure; and is located in the same general area of the lot; and,
b.
Both the Buffer area and the entire site will comply with the Critical Area lot coverage requirement or, if nonconforming to the lot coverage requirement, the proposed relocation will not increase the lot coverage either within the Buffer or for the entire site. (See § 190-15.6C[1] for lot coverage requirements.)
[1]
Editor’s Note: With the permission of the County, the typographical error “§ 190-15.6B” was corrected to read “§ 190-15.6C.”
6.
The foregoing shall not apply to relocation, replacements or reconfiguration of a nonconforming pier authorized under § 190-31.2D.8.d.
[Added 4-25-2023 by Bill No. 1528]
§ 190-51 Contiguous lots treated as one lot for zoning purposes.
51.1
Improvements across lot lines or in violation of setbacks.
A.
Two contiguous lots in common ownership shall not be treated as a single lot to construct improvements across lot lines or in violation of setback requirements.
B.
Where structures were legally erected prior to June 13, 2009, contiguous lots shall be treated as one lot for purposes of this chapter, and must remain under common ownership, if any one of the following is true:
1.
A structure is built across a property line of contiguous lots in common ownership; or
2.
A structure is built within the building restriction area of a lot line shared with a contiguous lot in common ownership, without a variance from the Board of Appeals or other authorization as provided in this chapter; or
3.
A primary structure is built on one lot and accessory structures or uses (e.g., garage, shed, pool, driveway, sewage disposal area) are located on a contiguous lot under common ownership without the granting of a special exception by the Board of Appeals.
51.2
Treatment as separate lots. Parcels considered merged for zoning purposes shall be treated as separate lots again only if both lots, including all uses and structures on the lots, comply with current requirements of the Talbot County Code, including minimum lot size, minimum lot width and setback requirements. This shall include the following:
A.
Structures or portions of structures crossing the common boundary line shall be removed so that all structures meet required setbacks;
B.
Structures or portions of structures within the required building setback shall be removed;
C.
Accessory structures and uses on the lot without a primary dwelling shall be removed; and
D.
If the merged lots have more than one pier or primary dwelling, the separated lots shall have only one primary dwelling unit and only one pier per lot.