The regulations of this article govern nonconforming uses, nonconforming structures, and nonconforming lots that came into existence legally but that do not comply with one or more requirements of this Chapter.

The regulations of this article are intended to:

1.

Recognize the interests of property owners in continuing to use their property;

2.

Promote reuse and rehabilitation of existing buildings; and

3.

Place reasonable limits on the expansion and alteration of nonconformities that have the potential to adversely affect surrounding properties or the community as a whole.

Any nonconformity that legally existed on the effective date listed in § 18-108 or that becomes nonconforming upon the adoption of any amendment to this Chapter may be continued only in accordance with the provisions of this article. Unless otherwise expressly stated, any variation from these standards shall require review and approval as a variance in accordance with the procedures of § 18-843.

The burden of establishing that any nonconformity is a legal nonconformity shall, in all cases, be upon the owner of such nonconformity. The burden of proof for establishing the existence of a lawfully nonconforming use, structure, or lot shall not be upon the Town of Vienna or the Zoning Administrator.

1.

Provisions of this article shall not apply to those cases where the requirements of this Chapter pertaining to yard setbacks, minimum lot dimensions, building line restrictions, lot coverage, and parking, cannot be met:

A.

By reason of either the lawful action of a federal, state or local government in acquiring lands for roads or other public purposes; or

B.

By the dedication of land by the owner thereof which is duly accepted by the appropriate government for public benefit and use.

2.

Provided, however, that the requirements of this Chapter had been or could have been met prior to such government action or dedication.

3.

Provided, further, that such dedication or acquisition for public use shall not be deemed to authorize any subsequent increased or additional departure from the strict application of all other provisions of this Chapter.

4.

Provided, further, that the nonconformance with the requirements of this Chapter pertaining to yard setbacks, minimum lot area, minimum lot dimensions, building line restrictions, lot coverage, and parking is caused by dedication for the purpose of widening existing streets and dedicated rights-of-way only and not by dedication of partial or total right-of-way requirements for proposed streets within a proposed subdivision.

1.

Proposed conversion of land or structures to condominiums that are otherwise permitted by law but that do not conform to all applicable zoning site plan and subdivision ordinances of the Town shall require, before conversion, such use permit, variance or modification as may be appropriate under the specific circumstances.

2.

Upon demonstration by the applicant, to the reasonable satisfaction of the Town Council or Board of Zoning Appeals as the case may require, that the nonconformities are not likely to be adversely affected by the proposed conversion, such request shall be granted. No action on such requests shall be unreasonably delayed.

In accordance with Code of Virginia § 15.2-2307, as amended, a nonconforming use of a structure may be continued only so long as the same use that existed at the time of the enactment of the ordinance from which this Chapter is derived, continues, and that such use is not discontinued for more than two (2) years.

The nonconforming use of land may be continued only so long as the same use that existed at the time of the enactment of the ordinance from which this Chapter is derived, or a more restricted use, continues, and that such use is not discontinued for more than two (2) years; provided that no such nonconforming use of land shall in any way be enlarged or extended, either on the same or adjoining property.

No nonconforming use shall be changed to another use, except when the new use conforms to the requirements of this Chapter.

The area occupied by a nonconforming use at the time of the enactment of the ordinance from which this Chapter is derived shall not be enlarged or expanded.

Any nonconforming structure may be continued only so long as such structure is maintained in the same structural condition as it was at the time of the enactment of the ordinance from which this Chapter is derived.

A nonconforming structure shall not be enlarged, extended, reconstructed, or structurally altered in any manner unless such enlargement, extension, reconstruction, or structural alteration does not result in an increase in nonconformance, or unless granted a variance.

Repairs may be made to a nonconforming structure, provided that no structural alteration shall be made except as may be required by law or ordinance.

1.

Applicable Categories.

A.

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, tidal wave, earthquake or fire caused by lightning or wildfire.

B.

For purposes of this section, owners of property damaged by an accidental fire have the same rights to rebuild such property as if it were damaged by an act of God.

C.

Nothing herein shall be construed to enable the property owner to commit an arson under Code of Virginia § 18.2-77 or § 18.2-80, and obtain vested rights under this section.

2.

The owner of any residential or commercial building damaged or destroyed by a natural disaster or other act of God up to fifty (50) percent shall be permitted to repair, rebuild, or replace such building to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance as provided in the Code of Virginia § 15.2-2310.

3.

If a building is damaged by a natural disaster or other act of God greater than fifty (50) percent and cannot be repaired, rebuilt, or replaced except to restore it to its original nonconforming condition, the owner shall have the right to do so without the need to obtain a variance as provided in the Code of Virginia § 15.2-2310.

4.

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 Uniform Statewide Building Code (Section 36-97 et seq.) and any work done to repair, rebuild, or replace such building shall be in compliance with the provisions of applicable flood plain regulations adopted as a condition of participation in the National Flood Insurance Program.

5.

Unless such building is repaired, rebuilt or replaced within two (2) years of the date of the natural disaster or other act of God, such building shall only be repaired, rebuilt, or replaced in accordance with the provisions of this Chapter.

6.

If the nonconforming building is in an area under a federal disaster declaration and the building has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then an additional two (2) years shall be permitted for the building to be repaired, rebuilt or replaced as otherwise provided in this Section.

No nonconforming structure shall be moved in whole or in part to any other location on the lot or to another lot unless every portion of such structure is made to conform to all of the regulations of the destination's zone.

A lot of official record approved by the Town before the effective date of this Chapter (See § 18-108) that does not conform to the lot dimensions required by this Chapter may be developed and used as long as the use of the lot and any structure placed within such lot are in conformance with all requirements set forth in this Chapter.

1.

Any lot of official record as of April (or December 17) 1956, or any lot of a subdivision approved by the Town from April (or December 17) 1956, to the effective date of the ordinance from which this division is derived, the lot size is less than 10,000 square feet, may be used for a single-unit dwelling, provided:

A.

It is in an R district; and

B.

It cannot reasonably be combined with other property to meet the minimum lot size requirements. Contiguous substandard lots shall be considered combined for the purposes of administering all zoning regulations as of the effective date of this Chapter (See § 18-108), if one home straddled or touched the contiguous lots as of that date, and that home used both substandard lots for setback purposes.

2.

If the requirements of subsections 1.A. and B. of this section are met, then:

A.

A substandard lot's side yard may be reduced to not less than twenty (20) percent of the lot width, but not to less than seven and a half (7½) feet in any case.

B.

A substandard lot's rear yard may be reduced to not less than thirty (30) percent of the lot depth but not less than twenty (20) feet in any case.