In the provisions established by this code, there exists lots, uses of land, structures and uses of structures, and land in combination which were lawful before this code was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this code after adoption or amendment thereto. The purpose and intent of this section is to regulate the continued existence of those uses, structures, and lots that do not conform to the provisions of this code, or any amendments thereto.

(Ord. 5-14, passed 3-17-2014)

(1)

Any use, building, structure, land, or combination thereof that exists at the time of the effective date of this code that was legally established under a previous code amendment or versions may be continued although such use, building, structure, or combination thereof does not conform to the provisions of this code.

(2)

Passage of this code or amendment in no way legalizes any illegal uses existing at the time of its adoption.

(3)

An applicant for any development review procedure that deals with a nonconformity shall bear the burden of proof in demonstrating that the use was a legal nonconformity on the effective date of this code.

(4)

Any lot, structure, or use lawfully existing upon the effective date of this code may continue in the size and in the manner of operation existing upon such effective date except as hereinafter specified.

(5)

The burden of establishing that a legal nonconforming use, structure, or lot exists shall be on the owner or user of the land, lot, or structure.

(6)

The requirements of this section shall not apply to a nonconforming structure or lot that is the subject of approved variances or waivers in any zoning district where such variances or waivers address all nonconformities related to the structure or lot.

(7)

The requirements of this section shall not apply to a development standard or feature that is the subject of an approved variance, waiver, or modification of standards in a PD district. Where a variance, waiver, or modification has been granted for a development standard or feature that does not otherwise conform to the requirements of this code, that development standard or feature shall be deemed conforming.

(8)

Minor repairs and normal maintenance of a nonconforming structure, or a structure containing a nonconforming use is permitted. This includes necessary structural repairs provided such structural repairs do not enlarge or intensify the nonconforming building, structure, or use.

(9)

Interior alterations may be made to a structure containing legal nonconforming residential dwelling units when the alterations will improve the livability of said units, providing the alterations will not increase the number of dwelling units.

(10)

Applicability of Variances, Administrative Waivers, and Alternative Equivalent Compliance Approvals.

(a)

If a variance, administrative waiver, or alternative equivalent compliance approval is granted by the Zoning Administrator or review board for a requirement that applies to a use, structure, or lot then such use, structure, or lot shall not be deemed a nonconformity provided it complies with all other aspects of this code.

(b)

When a property owner or authorized agent is granted a variance or administrative waiver for a nonconformity that addresses the nonconforming issue (a legal nonconformity established prior to the effective date of this code or amendment thereto), then the use, structure, or lot shall no longer be considered a nonconformity. In no case shall the resolved nonconformity be expanded or altered to create further nonconformities.

(c)

If a property owner or authorized agent is granted a variance or administrative waiver for a nonconformity that addresses some nonconformities but additional nonconformities continue, the use shall still be subject to the provisions of this chapter for all remaining nonconformities.

(Ord. 5-14, passed 3-17-2014)

Where, at the time of adoption of this code, lawful uses of land or structures exist that would not be permitted by the regulations of this code, the uses may be continued so long as they remain otherwise lawful and provided:

(1)

A lawful nonconforming use shall not be changed except in conformance with the use requirements of the zoning district in which it is located or the provisions of this section.

(2)

No such nonconforming uses shall be enlarged or increased, nor extended to occupy a greater area of land that was occupied at the effective date of adoption or amendment of this code unless it complies with the provisions of this section.

(3)

When any lawful nonconforming use of any structure or land in any district has been changed to a conforming use, it shall not thereafter be changed to any nonconforming use.

(4)

Any nonconforming use may be extended throughout any parts of a structure which were manifestly arranged or designed for such use at the time of adoption or amendment of this section, but no such use shall be extended to occupy any land outside such structure.

(5)

No such nonconforming use shall be moved, in whole or in part, to any portion of the lot or parcel other than that occupied by such uses at the effective date of adoption or amendment of this code.

(6)

No additional structures shall be constructed on a lot with a nonconforming use unless such new structure complies with the requirements of this code and the applicable zoning district.

(7)

Displacement. No nonconforming use shall displace a conforming use.

(8)

Change or Substitution of a Nonconforming Use.

(a)

If no structural alterations are made, any nonconforming use of a structure, land, or combination thereof may, upon application for a zoning compliance permit, be changed to another nonconforming use with approval from the Zoning Administrator.

(b)

In order to approve the zoning compliance permit, the Zoning Administrator shall be required to find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the Zoning Administrator may require appropriate conditions and safeguards in accord with other provisions of the chapter.

(c)

The decision of the Zoning Administrator may be appealed to the BZA in accordance with § 154.03(M).

(d)

Whenever a nonconforming use is changed to a less intensive nonconforming use or a permitted use, such use shall not thereafter be changed to a more intensive nonconforming use.

(9)

Existing Use Reclassified as a Special Use. In the event an existing use that was permitted by right at the time the use was established is thereafter reclassified as a special use in the applicable district due to a zoning text amendment, such use shall be considered to be an approved special use without any further action. However, any subsequent change to such use shall require review and approval by the Planning Board in accordance with this chapter and § 154.03(D). Such use, provided it is special use permitted in the applicable district, shall not be considered a nonconforming use.

(10)

Termination of Nonconforming Uses.

(a)

Termination of Use through Discontinuance.

(i)

When any nonconforming use is discontinued for more than 6 consecutive months, any new use shall conform to the regulations of the district in which it is located, and the nonconforming use may not thereafter be resumed. The intent to continue a nonconforming use shall not be evidence of its continuance.

(ii)

The above shall not apply in situations where government action impedes access to the structure.

(iii)

Discontinuance of use shall be considered legal abandonment for the purposes of this section.

(b)

Termination of Use by Damage or Destruction.

(i)

If a nonconforming single-family dwelling, two-family dwelling, or multi-family dwelling in a nonresidential district is damaged or destroyed to any extent, such structure and use may be reestablished on the same lot. Such reestablishment of the use shall require the issuance of a zoning permit.

(ii)

The following shall apply to any other type of nonconforming structure:

A.

If the nonconforming structure is damaged, but not to an extent greater than 60% of the principal structure's market value, as determined by the Zoning Administrator, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit.

B.

If the nonconforming structure is damaged beyond 60% of the principal structure's market value, as determined by the Zoning Administrator, such structure shall only be rebuilt in compliance with the requirements of this code.

(Ord. 5-14, passed 3-17-2014)

A nonconforming building or structure may continue to be used or occupied by a use permitted in the applicable zoning district so long as it remains otherwise lawful and does not constitute a public nuisance, subject to the following provisions:

(1)

Any nonconforming structure or site may be enlarged, maintained, repaired, or altered provided, however, no such enlargement, maintenance, repair or alteration shall either create an additional nonconformity or increase the degree of the existing nonconformity of all or any part of such structure or site, unless otherwise specified in this code. The structure or site may be modified in a manner that will decrease the nonconformity.

(2)

A nonconforming structure shall not be relocated in whole or in part to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the applicable zoning district after relocation.

(3)

The principal use of a nonconforming structure may be changed to any other use permitted in the applicable zoning district as long as the new use complies with all regulations of this code specified for such use, except the regulations to which the structure or site did not conform prior to the change in use.

(4)

The governmental acquisition of a portion of a lot for a public purpose that results in reduction in a required yard or building setback below that required in the applicable zoning district shall not render a structure nonconforming.

(5)

Damage or Destruction of a Nonconforming Structure Containing a Conforming Use.

(a)

If a nonconforming structure is damaged, but not to an extent greater than 60% of the principal structure's market value, as determined by the Zoning Administrator, such structure and use may be reestablished on the same lot to the same size and intensity of use as was previously existing immediately prior to the damage or destruction. Such reestablishment of the use shall require the issuance of a zoning permit.

(b)

If a nonconforming structure is damaged beyond 60% of the principal structure's market value, as determined by the Zoning Administrator, such structure shall only be rebuilt in compliance with the requirements of this code.

(c)

If the owner voluntarily removes the structure or reduces the nonconformity, that has not been damaged or destroyed, that owner shall not be permitted to rebuild the structure to the original nonconforming size, mass, height, setback, etc.

(Ord. 5-14, passed 3-17-2014)

A nonconforming lot of record may be used in accordance with this section.

(1)

Nonconforming Lots of Record in Residential Districts.

(a)

If an existing lot of record in a residential district is occupied by a dwelling that is not a nonconforming use, such dwelling shall be maintained and may be repaired, modernized or altered, provided that:

(i)

The building shall not be enlarged in floor area unless the enlarged section complies with all regulations of this code, with the exception of the lot frontage and the lot width regulations.

(ii)

The number of dwelling units shall not be increased unless in conformance with this code.

(b)

In any residential district, a single-family dwelling and its customary accessory uses may be erected on a vacant single lot of record after the effective date of this code provided the structures comply with all other applicable standards of this code except for the minimum lot area and minimum frontage requirement. Any exception to this requirement must be sought through a variance or administrative waiver application.

(2)

Nonconforming Lots of Record in Nonresidential Districts. In any nonresidential district, a use that is permitted in the applicable district, and its customary accessory uses, may be erected on a vacant single vacant lot of record provided the buildings comply with the following:

(a)

All buildings shall be setback a minimum of 30 feet from any lot line that abuts a residential zoning district.

(b)

A nonresidential use on a nonconforming lot of record shall be subject to all other applicable requirements of this code including, but not limited to Section 154.09: Landscaping Standards and Section 154.10: Parking, Access, and Mobility Standards.

(Ord. 5-14, passed 3-17-2014)

See § 154.11(L) for the regulation of nonconforming signs.

(Ord. 5-14, passed 3-17-2014)

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done for ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the footprint and height of the structure as it existed when it became nonconforming, shall not be increased unless in accordance with this section. Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by an official charged with protecting the public safety, upon order by such official.

(Ord. 5-14, passed 3-17-2014)