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 appendix;

(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 appendix 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 appendix.

(a)

Within the zoning districts established by this ordinance, or by future amendments which may later be adopted, or by legitimate and legal actions taken by the town council or any other governmental agency, there exists or may exist lots, parcels, structures, uses of land and structures, and characteristics of site design and/or use, which were lawful before this appendix was adopted or amended, but which would be prohibited, regulated, or restricted under the terms of this appendix, or future amendment. Some of such structures, lots, parcels, uses, and characteristics are considered nonconforming.

(b)

A nonconforming use, structure, lot, or parcel may continue, as it existed when it became nonconforming, until removed, discontinued, abandoned, or changed to conform to the regulations of this appendix. It is the intent of this appendix that the continuance of nonconformities should not be indefinite, and that the nonconforming uses, structures, or characteristics should gradually be removed.

(c)

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.

(a)

Nothing in this article shall be construed to authorize the impairment of any vested right. Without limiting the time when rights might otherwise vest, a property owner's rights shall be deemed vested in a land use and such vesting shall not be affected by a subsequent amendment to this appendix, when the property owner:

(1)

Obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project;

(2)

Relies in good faith on the significant affirmative governmental act; and

(3)

Incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.

(b)

For purposes of this section and without limitation, the following are deemed to be significant affirmative governmental acts allowing development of a specific project:

(1)

The town council has accepted proffers or proffered conditions which specify use related to a zoning amendment;

(2)

The town council has approved an application for a rezoning for a specific use or density;

(3)

The board of zoning appeals has approved a variance;

(4)

The town council or its designated agent has approved a preliminary subdivision plat, site plan, or plan of development for the property and the applicant pursues approval of the final plat or plan within a reasonable period of time under the circumstances; or

(5)

The town council or its designated agent has approved a final subdivision plat, site plan, or plan of development for the applicant's property.

(6)

The zoning administrator or other administrative officer has issued a written order, requirement, decision or determination regarding the permissibility of a specific use or density of the landowner's property that is no longer subject to appeal and no longer subject to change, modification, or reversal under Code of Virginia, 1950, Subsection C of § 15.2-2311, as amended.

(c)

Nothing in this appendix shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of this appendix, or amendments thereto, and upon which actual building construction was carried out diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation, demolition, or removal of an existing building has begun in preparation for rebuilding, such activities shall be deemed actual construction provided the work has been carried out diligently.

(a)

Where, at the effective date of this appendix, or amendment thereto, lawful use exists of buildings, structures or land, individually or in combination with another structure, which use is no longer permissible under the terms of this appendix as enacted or amended, such use may be continued provided:

(1)

The use is not abandoned for more than two years and so long as the structure in which such use is located is maintained in its then structural condition. Abandonment means the actual cessation of the nonconforming use of the property for more than two years regardless of whether or not the owner of the property intends to resume the nonconforming use at some point in the future.

(2)

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 or increased, or extended to occupy a larger square footage of building or lot area than was occupied on the effective date of the adoption or subsequent amendment of this appendix. 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)

No nonconforming use shall be moved in whole or in part to any portion of the lot or parcel unoccupied by such use at the time of the adoption or subsequent amendment of this appendix.

(d)

No building or structure not conforming to the requirements of this appendix shall be erected in connection with the nonconforming use of land.

(e)

Where nonconforming use status applies to a building or structure, removal of the building or structure shall eliminate the nonconforming status of the building or structure or land.

(f)

Any legally established use which existed prior to the adoption of this appendix, or any subsequent amendments, shall not be considered a nonconforming use where a special use permit is now required for establishment of such use. The use shall be allowed to continue operation, as well as reconstruct or structurally alter the building or structure without the necessity of obtaining a special use permit. However, approval of a special use permit shall be required, in accordance with special use provisions, when either of the conditions below are present, in the opinion of the zoning administrator.

(1)

There is a ten percent or greater net increase in the square footage of the use or structure proposed for expansion or enlargement; or

(2)

The expansion or enlargement will substantially alter the site design and layout as it relates to circulation, parking or other site characteristics so as to adversely affect surrounding properties.

(3)

This section shall not apply to broadcasting towers and associated antenna allowed by right as set forth by the ordinance.

(g)

A manufactured home park legally established prior to June 1, 1986 shall be allowed to continue operation in conformance with the provisions, provided the use as a park has not been discontinued for a period of more than two years.

(h)

Notwithstanding (a) through (g) above, a nonconforming manufactured home existing on an individual lot of record that has served as an active dwelling for at least six months may be replaced with another manufactured home provided:

(1)

The replacement home is installed on the lot within two years of the removal of the home to be replaced; and

(2)

The replacement home is installed in approximately the same location on the lot, and is installed to comply with the district setback regulations for principal structures; and

(3)

The installation of the replacement home complies with the use and design standards for manufactured homes.

(i)

Notwithstanding any provision in this article to the contrary, a single family home legally established prior to a zoning amendment that renders the property nonconforming may continue to be used as a single family home so long as the use is not converted or replaced, in whole or in part, by a use permitted in the district regulations, and the building or structure of the home is maintained in its then structural condition. If the home is damaged, it shall comply with section 7-9 of this article.

(a)

Except as otherwise provided in this article, no building or portion of a building devoted to a nonconforming use shall be enlarged, extended, structurally altered, or moved, unless such building or portion of a building is thereafter devoted to a use which conforms with the use regulations of this appendix. Nothing in this article shall be construed to prohibit repair, maintenance or incidental alteration of a building or the alteration, strengthening or restoring of a building to safe condition as may be required by law.

(b)

A single-family dwelling which is a nonconforming use in a GB, CB, M-1 or M-2 district may be structurally altered and may be enlarged or extended, and a building or structure accessory thereto may be altered, enlarged or constructed, provided that in no case shall the total amount of floor area, including all enclosed and unenclosed space and garage or carport space, be increased more than 800 square feet. No existing lot area, lot width or yard shall be reduced to less than required for single-family dwelling use in the R-3 residential district.

(a)

A nonconforming use of land or a nonconforming use of a building may be changed to a use which conforms with the use regulations of the district in which it is located or to a use, other than a multifamily dwelling, which is first permitted by right in a more restricted zoning district. Whenever a nonconforming use has been changed to a conforming use or to a more restricted use, such use shall not thereafter be changed back to the original nonconforming use.

(b)

For purposes of this article, a more restricted zoning district shall be construed to be a district in which the permitted uses and intensity of use are more limited. The term "use" shall be construed to be a type of activity as listed in the use regulations of a zoning district, and a change in occupancy, ownership or management shall not in itself constitute a change in use.

(a)

Unless otherwise provided herein, whenever a nonconforming use of land or a nonconforming use of a building is discontinued for a period of more than two years (except if the premises is damaged or destroyed as a direct result of conditions resulting in a federal disaster declaration as set forth in section 7-9 herein), whether or not equipment or fixtures intended for such uses are removed, any subsequent use shall conform with the use regulations of the district in which the property is located.

(b)

In case of determination by the zoning administrator that a nonconforming use has been changed to an illegal use, such illegal use shall cease and any subsequent use of the premises shall be in conformity with the use regulations of this appendix, or the illegal use may be changed to the last lawful nonconforming use to occupy the premises, so long as it has not been more than two years since the nonconforming use ceased.

(a)

A building which is nonconforming with respect to the bulk regulations or other feature required by this appendix may nonetheless be converted to and occupied by a use permitted in the district in which the building is located, provided that off-street parking and other requirements applicable to the new use are satisfied.

(b)

A building which is devoted to a conforming use and is nonconforming with respect to the bulk regulations or other feature required by this appendix may be enlarged, extended or structurally altered, provided that the degree or extent of any nonconforming feature is not increased.

(c)

An increase in the height of any portion of a building which is nonconforming with respect to a yard requirement shall be deemed to be an increase in the extent of the nonconforming yard of the building.

(a)

Damage not exceeding 50 percent of value. A building having a nonconforming feature or a building devoted to a nonconforming use which is damaged by an accidental fire, or an explosion, natural disaster or other act of God or the public enemy to an extent not exceeding 50 percent of its most recent assessed taxable value may be restored, repaired, reconstructed and used as before the damage, provided that the degree or extent of any nonconforming feature that existed prior to the damage shall not be increased, and the area devoted to any nonconforming use prior to the damage shall not be increased. For purposes of this section, an "act of God" shall be defined as any natural disaster or phenomena including, but not limited to, a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake or fire caused by lightning or wildfire. 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.

(b)

Damage greater than 50 percent of value. Whenever a building having a nonconforming feature or a building devoted to a nonconforming use is damaged or destroyed by a natural disaster or other act of God to an extent greater than 50 percent of its most recent assessed taxable value, and cannot be repaired, rebuilt, or replaced except to restore it to its original non-conforming condition, the owner shall have the right to do so. However, 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 (Code of Virginia, § 36-97 et seq.) and the provisions of the local flood plain regulations adopted as a condition of participation in the National Flood Insurance Program.

(c)

Notwithstanding the foregoing, any restoration, repair, reconstruction, or reuse undertaken pursuant to this section shall be completed within two years of the date of damage. 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 any restoration must be started and completed within 48 months of the date of the damaging event. Owners of property damaged by an accidental fire shall have the same right to rebuild such nonconforming property as if it were damaged by an act of God. Nothing herein shall be construed to enable the property owner to commit arson under Code of Virginia, §§ 18.2-77 or 18.2-80, and obtain vested rights under this section.

(a)

Pursuant to Code of Virginia (1950), § 15.2-2261(F), an approved final subdivision plat that has been recorded, from which any part of the property subdivided has been conveyed to third parties (other than to the developer or local jurisdiction), shall remain valid for an indefinite period of time unless and until any portion of the property is subject to a vacation action as set forth in Code of Virginia, §§ 15.2-2270 through 15.2-2278, as amended.

(b)

A lot of record that is nonconforming due to lack of adequate frontage, width, depth, or area may be developed, provided the development proposed on the lot is in accordance with the applicable use and design standards contained in the district regulations.

(c)

Any lot of record to which Code of Virginia, § 15.2-2261(F) does not apply that has legal access but is nonconforming because it has no public street frontage, may be developed or an existing structure on the lot may be expanded, provided the town reviews and grants a special use permit for the proposed development, expansion, and use in accord with the standards and procedures contained in this appendix.

Intermittent, temporary or illegal use of land or buildings shall not be construed to establish the existence of a nonconforming use for the purposes of this article, provided that a lawful seasonal use that was in operation for at least two consecutive seasons immediately prior to the adoption of this appendix or subsequent amendment thereto shall be considered a nonconforming use for seasonal purposes only and shall be subject to the provisions of this article.

Any eligible facilities request for a modification of an existing, lawfully-established wireless tower or base station that does not substantially change the physical dimensions of such tower or base station shall not be treated as a nonconforming use or extension of a nonconforming use and shall be approved. Upon submission of an application for a site plan, plot plan, or scaled elevation in accordance with and meeting all standards of article VIII, division 3 of this appendix, and in conformance of this section, such approval shall be granted.

State Law reference— 47 U.S.C. § 1455, 47 C.F.R. § 1.6100, Code of Virginia, § 15.2-2307.