Three categories of nonconformities are established within this Article and defined as follows:

17-1-1

Nonconforming use: refer to Section 1-2-69.

17-1-2

Nonconforming structure: refer to Section 1-2-71.

17-1-3

Nonconforming lot: refer to Section 1-2-70.

The following term is hereby defined as follows:

17-1-4

Discontinued: The intentional or unintentional absence, cessation, or termination of any activities that are associated with a nonconforming use.

(Ord. No. 2021-6, 5-25-2021; Ord. No. 2023-35, § 1, 1-23-2024)

(a)

Any nonconforming structure, nonconforming use, or nonconforming lot may be continued, repaired, or maintained. It may not be altered, enlarged, or extended except in accordance with this Article.

(b)

Except as otherwise expressly provided herein, when a nonconforming use has been changed to an illegal use, such illegal use shall cease, and any subsequent use of the property shall conform to the regulations applicable in the district in which it is located or, if the nonconforming use has been discontinued for a period of less than two years, the illegal use may be changed to the last nonconforming use or to a use that is more restricted than such use.

(c)

The burden of establishing that a use, structure, or lot is nonconforming shall be that of the owner of the property.

(Ord. No. 2021-6, 5-25-2021)

17-3-1

A nonconforming use shall not (i) be expanded, enlarged, or extended beyond the size as it existed at the time that such use became nonconforming, or (ii) materially changed in character or intensity. Notwithstanding the foregoing, a nonconforming use may decrease in intensity, subject to the provisions of Section 17-3-2 below. When any use is regulated by this chapter in a quantifiable manner, including but not limited to limitations on the number of unrelated occupants permitted in a dwelling unit, limitations on the density of dwelling units, or measurement of the square footage of a use to determine parking requirements, any quantifiable increase shall constitute a prohibited material change in character or intensity.

(Ord. No. 2023-35, § 1, 1-23-2024)

17-3-2

If a nonconforming use is changed to a more restricted nonconforming use for a period of more than two years, the original nonconforming use shall be deemed to be discontinued and the use shall not thereafter be changed back to the original nonconforming use.

17-3-3

No building or structure associated with a nonconforming use shall be added to or structurally altered, as provided in the Uniform Statewide Building Code, unless:

(a)

A zoning verification letter has been received documenting the existence and extent of the nonconforming use prior to the proposed addition or alteration; and

(b)

The proposed addition or structural alteration to the building or structure does not increase or extend the square footage dedicated to the nonconforming use. Any use of new square footage added to the building or structure must be used for a use that conforms to the Ordinance.

17-3-5

Conforming structures that contain a nonconforming use may be repaired, maintained, or renovated, provided that the scope of work does not expand the square footage dedicated to the nonconforming use or otherwise increase, expand, extend, or change the character of the nonconforming use.

17-3-6

If a building or structure occupied by a nonconforming use is damaged or destroyed by a natural disaster or an act of God, then the building or structure may be restored and nonconforming use continued so long as the use is not discontinued for more than two years.

17-3-7

In the event that a primary nonconforming use is discontinued for more than two years, all accessory uses to such primary nonconforming use shall be prohibited unless such accessory uses otherwise conform to the Ordinance.

(Ord. No. 2021-6, 5-25-2021)

17-4-1

A nonconforming structure may continue so long as such structure is maintained in materially the same condition as when such structure became nonconforming.

17-4-2

The owner of any nonconforming structure that is damaged or destroyed by a natural disaster or other act of God may repair, rebuild, or replace such nonconforming structure to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance, provided that:

(a)

If such nonconforming structure is damaged greater than 50 percent of the present assessed value of the building or structure, 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. Any work done under this subsection to repair, rebuild, or replace such nonconforming structure shall be in compliance with the provisions of the Uniform Statewide Building Code and the provisions of applicable local floodplain regulations.

(b)

Unless such nonconforming structure is repaired, rebuilt, or replaced within two years of the date of the natural disaster or other act of God, such building or structure shall only be repaired, rebuilt, or replaced in accordance with the provisions of the Ordinance, except if such nonconforming structure is in an area under a federal disaster declaration and the nonconforming structure has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, in which case the owner shall have an additional two years to repair, rebuild, or replace such nonconforming structure.

17-4-3

Notwithstanding any other provision of this chapter, any nonconforming structure that has been declared by the City to be unsafe, unfit for human occupancy, derelict, or blighted may be repaired to strengthen or restore the structure or any part thereof to a safe condition, or to remedy the conditions giving rise to such blight or dereliction. These repairs may include improvements to provide fire safety and handicapped access.

17-4-4

Notwithstanding any other provision of this chapter, nonconforming accessory structures less than 256 square feet in size, which do not otherwise require a building permit, may be replaced in whole so long as their placement does not increase, extend, expand, or compound their nonconformity.

(Ord. No. 2021-6, 5-25-2021)

17-5-1

The burden of establishing a nonconforming status of a use or structure shall be upon the owner of the claimed nonconformity.

17-5-2

Upon request, the Administrator shall make a written determination pertaining to the existence of a lawful nonconforming use and/or structure. In verifying the lawful status of a nonconforming use and/or structure, the Administrator shall determine whether the use and/or structure is, in fact, a lawful nonconformity as defined by this Article; and if so then:

(a)

The location and gross floor area (in square feet) of all buildings, if any, associated with the nonconforming use;

(b)

Any site improvements currently existing on the property which are also nonconforming (including accessory buildings, parking, outside storage, travel ways, green area, landscaping, etc.); and,

(c)

A description of the principal use(s) and all accessory uses that make up the lawful nonconforming use as a whole.

17-5-3

The decision of the Administrator shall be based upon information provided by the owner of the property on which the nonconforming use is located, on information provided by other persons with knowledge of the property and on any other non-confidential information legally available to the Administrator. Such information may include, but shall not be limited to, permits, licenses, tax records, receipts, business records, photographs, plats, plans, bills, utility information, assessment information, and sworn affidavits from individuals with personal knowledge of the use and/or the property on which the use is located.

(Ord. No. 2021-6, 5-25-2021)

This section is designed to allow for preservation, adaptability, and a continued use of nonconforming in the City of Winchester. Expansion of a nonconforming structure is allowed only so long as the portion of the then-existing footprint that is in conflict with setback or yard requirements is not expanded so as to increase the nonconformity. These regulations are designed to allow for expansions outside the setback or yard requirements and to allow for vertical expansions inside of setback or yard requirements provided that the supporting footprint is not increased. This section shall only apply to and allow for expansions of nonconforming structures that are used solely for conforming uses.

17-6-1

A structure which is nonconforming solely due to its failure to meet existing setback or yard requirements in this Ordinance may be structurally modified or added to in such a way so as to expand horizontally the footprint of the nonconforming structure outside of the setback or yard requirements. Such expansion shall be allowed only if it complies with all other provisions of the zoning ordinance.

17-6-2

Existing unfinished interior space in a nonconforming structure may be finished provided that such work does not further expand the footprint of the existing nonconforming structure.

17-6-3

A nonconforming structure may be expanded vertically only if the existing portion of the structure's footprint, in conflict with setback or yard requirements, is not expanded to occupy a greater area of the setback or yard requirements than was occupied at the time the structure became nonconforming. A vertical expansion over an existing footprint must conform to all other provisions of this Ordinance. The vertical expansion that takes place in conflict with the setback or yard requirements shall be confined to two stories in height and no higher than 35 feet from grade.

17-6-4

Renovations or additions that take place inside the current setback or yard requirements must not exceed 50 percent the present assessed value of the property in any one-year period. Renovations or additions that take place outside of the setback or yard requirements are not bound by any assessed value cap. Square footage of nonconforming areas may be pro-rated to determine the value of construction materials used for any renovations or additions that occur inside the setback or yard requirements. Renovations or additions that exceed 50 percent of the present assessed value, as described in this section, shall require the approval of a conditional use permit by City Council prior to the work commencing.

17-6-5

An architectural overhang of 30 inches outside of the underlying building footprint shall be allowed to provide for functional drainage and aesthetics. Any existing nonconforming architectural overhang in excess of 30 inches from the underlying nonconforming building footprint may be replaced so long as the projection is not increased to an extent that is greater than the existing nonconformity. An architectural overhang, as described in this section, may project over property lines. An architectural overhang may project into the public right of way in accordance with the regulations found under Section 18-18 of the zoning ordinance.

17-6-6

An existing carport that is nonconforming to setback or yard requirements but devoted to a conforming use may be enclosed, provided that such addition does not compound the existing dimensional nonconformity and is used solely for the creation of garage space. If enclosing the carport creates a public safety problem or additional habitable space, such enclosure shall not be allowed. New concrete footers and floors may be poured so long as the footers are not dimensionally enlarged to occupy a greater volume than was present at the time that the carport became nonconforming.

(Ord. No. 2021-6, 5-25-2021; Ord. No. 2023-35, § 1, 1-23-2024)

A nonconforming lot may continue subject to the provisions, conditions, and prohibitions set forth herein.

17-7-1

Where an unimproved lot of record at the time of the effective date of this Ordinance has less area and or width than herein required in the district in which it is located, the lot may nevertheless be used for a single-family detached dwelling, without the need to obtain a variance, only if:

(a)

The use is permitted in the district in which the lot is located;

(b)

Side yards of not less than ten percent of the required lot width are provided; and

(c)

The setback and rear yard requirements shall be as required by the zoning district in which the lot is located.

(d)

If the lot is a corner lot, a side yard facing the side street of not less than 20 percent of the required lot width, with a minimum of ten feet, shall be provided.

17-7-2

Subdivision that includes a nonconforming lot. A nonconforming lot may be subdivided as part of a subdivision provided that all of the resulting lots comply with the requirements of the zoning district in which they are located and all other applicable requirements of the Winchester City Code.

17-7-3

Combination of a nonconforming lot with another lot. A nonconforming lot may be combined with a conforming lot or a nonconforming lot provided the size, area, or frontage of the resulting lot is increased to make it conforming or not more nonconforming.

17-7-4

Boundary line adjustment between a nonconforming lot and a conforming lot. One or more boundary lines between a nonconforming lot and a conforming lot may be adjusted provided that:

(a)

The boundary line adjustment does not make the conforming lot nonconforming or the nonconforming lot more nonconforming; and

(b)

The boundary line adjustment does not result in an increase in the number of lots or dwelling units that could otherwise be established on each lot.

17-7-5

Boundary line adjustment between nonconforming lots. One or more boundary lines between two or more nonconforming lots may be adjusted provided:

(a)

The boundary line adjustment does not make either nonconforming lot more nonconforming; and

(b)

The boundary line adjustment does not result in an increase in the number of lots or dwelling units that could otherwise be established on each lot.

17-7-6

A change of the ownership or occupancy of a nonconforming lot shall not affect the status of the nonconforming lot.

17-7-7

Where a lot of record at the time of the effective date of this Ordinance has less area or width than herein required in the district in which it is located, the lot may nevertheless be used for a community garden, if that use is permitted in the district in which the lot is located, or for permissible uses which are accessory to a primary use on an adjacent conforming lot.

17-7-8

Any lot, which by reason of realignment of a federal or state highway or by reason of condemnation proceedings has been reduced in size to an area less than that required by law, shall be considered a lawful nonconforming lot of record subject to the provisions set forth in this Section; and any lawful use or structure existing at the time of such highway realignment or condemnation proceedings which would thereafter no longer be permitted under the terms of this Ordinance shall be considered a lawful nonconforming use of structure as that term is used in this Ordinance.

(Ord. No. 2021-6, 5-25-2021)