A.

Purpose. The purpose of this Chapter is to regulate the continued existence of nonconforming uses, noncomplying structures, and noncomplying lots.

B.

Intent. The intent of this Chapter is to allow continued use of legal non conforming uses and/or noncomplying structures while at the same time protecting existing conforming development within the community.

A noncomplying structure or a structure housing or containing a nonconforming use may be maintained and repaired.

A.

A noncomplying structure or a building or structure occupied by a nonconforming use which is damaged or is destroyed by fire, flood, wind, earthquake, or other calamity, may be restored and the occupancy or use of such building, structure, or portion thereof, which existed at the time of such damage or destruction, may be continued or resumed.

A noncomplying structure may not be enlarged unless:

A.

A variance is obtained under VULU Chapter 16.6 regulations; or

B.

The enlargements are made in conformance with all regulations of the zone in which the noncomplying structure is located; or

C.

The following criteria are met:

1.

The changes do not further increase the structures noncompliance to current Land Use Ordinances,

2.

The changes do not create an unmitigated hardship for adjoining properties,

3.

The changes do not create a public safety hazard,

4.

The changes have been reviewed by the Town's Professional Staff.

D.

Structure Expansion Exceptions.

1.

Accommodations to meet minimum ADA requirements will not be considered as increasing or enlarging a nonconforming use or structure.

2.

For the purposes of this Section, the addition of a solar energy device to a building is not a structural alteration.

A structure occupied by a nonconforming use may be enlarged if:

A.

The enlargement does not increase the nonconforming use; and

B.

The criteria of Section 16.10.04 are met.

The nonconforming use of a building or structure may not be changed except to a conforming use; but once such change is made, the use shall not thereafter be changed back to a nonconforming use.

A nonconforming use may be continued on the parcel of land upon which such nonconforming use has historically been made and according to the provisions of this ordinance.

See VULU Chapter 16.52, Sign Regulations.

See VULU Section 16.8.54 for specific regulations on noncomplying lots of record.

A.

Abandonment of a noncomplying structure or nonconforming use may be presumed to have occurred if:

1.

A majority of the primary structure associated with the nonconforming use has been voluntarily demolished without prior written agreement with the municipality regarding an extension of the nonconforming use;

2.

The use has been discontinued for a minimum of one year; or

3.

The primary structure associated with the nonconforming use remains vacant for a period of one year.

a.

Calculation of Period of Discontinuance: Any period of such discontinuance caused by government actions, without any contributing fault by the nonconforming use, shall not be considered in calculating the length of discontinuance.

b.

A vacant building or structure occupied by a use for which the building or structure was designed or intended, within a period of one (1) year after the use became nonconforming, is not considered abandoned.

4.

Presumption of Abandonment. Any party claiming that a nonconforming use has been abandoned will have the burden of establishing the abandonment.

5.

Rebuttal of Determination of Abandonment. A property owner my rebut any determination of abandonment.

A.

A noncomplying structure, a structure occupied by a nonconforming use, or a nonconforming use, or a nonconforming use of land may be determined to be abandoned by the Town after:

1.

The Town receives a written presumption of abandonment according to the Town's current complaint policies and procedures.

2.

If the Town sees cause to proceed with abandonment determination, a written notice must be sent to the affected party, 15 days prior to a hearing or action being taken. The written notice must list:

a.

All relevant details of the complaint;

b.

Any laws that may be applicable to the situation;

c.

The process for determination of use;

d.

That an abandonment determination of the non-conforming use, or noncomplying structure is being considered; and

e.

The date set for a hearing on the issue.

3.

The Town Council will hold a hearing in an open and public meeting to ensure that:

a.

The party claiming the abandonment and the affected party have an opportunity to be heard before the Town Council.

b.

Continuity of business license of CUP musts be considered as a continuation of use.

4.

After the hearing, the Council may then determine:

a.

To continue the hearing to consider more information about the claim;

b.

The use or structure has not been abandoned and may continue;

c.

The use or structure has been abandoned and may not continue;

d.

To set an amortization period.

5.

Any revocation or mitigation may require the Council to set a date for termination or conditional compliance of a Nonconforming use or Noncomplying Structure by Amortization according to the following standards:

A.

The Town may determine the appropriate amortization period (a formula establishing a reasonable time period during which the owner can recover or amortize the amount of the owner's investment in the nonconforming use) upon the consideration of evidence gathered by the investigation and presented at the hearing regarding the following factors:

1.

The general character of the area surrounding the nonconforming use;

2.

The zoning classification and use(s) of nearby property;

3.

The owner's actual amount of investment in the property on the effective date of nonconformance, less any investment required by other applicable laws and regulations;

4.

The amount of financial, if any, that would be suffered by the owner upon termination of the use; and

5.

The extent to which the amortization period will further the public health, safety and welfare.

B.

Once a final decision has been made by the Council, the Town will issue an official written notice of determination in combination with Town Council, Town's Professional staff, and the owner(s) or designated representative(s) of the property.

A.

A property owner has the right to appeal the Town Council's decision to the Virgin Appeal Authority in compliance with VULU Chapter 16.6 within 15 days of:

1.

The Town Council's decision issued at the conclusion of the informal hearing; or

2.

The date the written determination is issued and delivered to the applicant; or

3.

A future date specified by the Town Council.

B.

Appeal. Any person adversely affected by a final decision of the appeals authority may file a petition for review of the decision with the district court within thirty days after the decision is rendered.

A vacant building or structure may be occupied by a use for which the building or structure was designed or intended if so occupied within a period of one (1) year after the use became nonconforming.

The nonconforming use of a building or structure may not be changed except to a conforming use; but once such change is made, the use shall not thereafter be changed back to a nonconforming use.

The nonconforming use of land, existing at the time this ordinance became effective, may be continued provided that:

A.

No such nonconforming use of land shall in any way be expanded or extended to adjoining property; and

B.

No such nonconforming use shall be expanded or extended outside the structures or other delineated areas associated with the original legal use, unless an exception is approved by the Land Use Authority to ensure compliance with state or federal fair housing and discrimination laws; and

C.

If such nonconforming use of land, or any portion thereof, including nonconforming use as a residential facility for persons with a disability, is abandoned or changed for a period of one (1) year or more, any future use of such land shall be in conformity with the provisions of this ordinance.

The following nonconforming structures and nonconforming uses shall be amortized in a period not exceeding that stated below, effective from the date of adoption of this ordinance:

A.

Trash, junk, debris, abandoned or dismantled automobiles or similar material shall be removed for any residential zone within one (1) year.

B.

NONCONFORMING SIGNS. See VULU Chapter 16.52, Sign Regulations.

Noncomplying structures or nonconforming uses not removed within the specified time effective of the date of the adoption of this ordinance may be removed by the Town of Virgin and the costs incurred by the Town in doing so shall be billed to the owner of the property or structure.

A property owner who wishes to avail themselves of the ability to maintain, repair and restore a Noncomplying Structure pursuant to Section 16.10.02, above or continue a Nonconforming Use pursuant to Sections 16.10.12 and 16.10.14, above shall do the following:

A.

Submit to the Town a letter for determination of legal noncomplying structure or nonconforming use ("Legal Non-Conforming Use Letter" or "Letter") and pay any administrative filing fee as may be set by the Town from time to time.

B.

Within, or attached to, said Letter provide any information and documentation supporting your assertion that at the time your noncomplying structure was constructed or last renovated or your nonconforming use commenced it was legal (or not expressly prohibited) under the Town's ordinances or Utah law.

C.

Participate in an informal hearing on the issue before the Town Council wherein you are given the opportunity to have legal counsel present and the ability to present additional evidence to further validate your assertion of initial legality of structure or use.

D.

The property owner seeking the determination of legal noncomplying structure or legal nonconforming use has the burden of proving by a preponderance of the evidence that the structure or use was legal (or not-prohibited) at the time of inception.

E.

At the conclusion of the informal hearing the Town Council may make a formal decision to be incorporated into the minutes of the meeting or take the matter under advisement and issue a written determination.

F.

A property owner has the right to appeal the Town Council's decision to the Virgin Appeal Authority in compliance with VULU Chapter 16.6 within 15 days of: a) the Town Council's decision is issued at the conclusion of the informal hearing, or b) the date the written determination is issued and delivered to the applicant.

(Section 16.10.24 added pursuant to Ordinance # 2018-19)