(1) Purpose. In the provisions established by this Code, there exist uses of land, structures, lots of record, towers and signs that were lawfully established before this Code was adopted or amended, that now do not conform to its terms and requirements. The purpose and intent of this section is to regulate the continued existence of those uses, structures and lots of record that do not conform to the provisions of this Code, or any amendments thereto.
(2) General provisions.
(A) Authority to continue. The lawful use of any dwelling or structure and of any land or premises existing and lawful at the time of the enactment of this Code, or any amendment thereto, may continue, although such use does not conform to the provisions of this Code or amendment thereto. Nevertheless, while it is the intent of this Code that such nonconformities be allowed to continue until removed, they should not be encouraged to survive. Therefore, no nonconformity may be moved, extended, altered, expanded or used as grounds for any other use or structure prohibited elsewhere in the district without the approval of the BZA, except as otherwise specifically provided for in this Code.
(B) Conditional uses. Any use which is permitted as a conditional use in a district under the terms of this Code shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use; provided the use meets all approval criteria and conditions established by the PZC for the conditional use.
(C) Accessory uses. A nonconforming use that is accessory to a principal use shall not make the principal use nonconforming.
(D) Determination of nonconformity status. The burden of establishing that a nonconformity lawfully exists shall be on the owner of the land on which the purported nonconformity is located.
(E) Exception due to variance. The requirements of this section shall not apply to a development standard or feature that is the subject of an approved variance. Where a variance 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.
(F) Minor repairs and normal maintenance. Minor repairs and normal maintenance that are required to keep nonconforming uses, structures and lots of record in a safe condition are permitted; provided the minor repair or maintenance does not extend, expand or enlarge the nonconforming use, structure or lot of record. For the purposes of this section, MINOR REPAIR or NORMAL MAINTENANCE shall mean the following.
1.) Maintenance of safe condition. Repairs necessary to maintain a nonconforming use, structure and lot of record in a safe condition.
2.) Correction of damage or deterioration. Repairs necessary to correct any damage or deterioration to the structural soundness or interior appearance of a structure without altering the structure.
3.) Maintenance of land for safety. Maintenance of land areas to protect against health hazards and to promote the safety of surrounding uses.
(G) Change of tenancy or ownership. Changes of tenancy or ownership of an existing nonconformity are permitted but shall continue to be subject to the requirements of this section.
(3) Substitution of nonconforming uses. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or a more restricted classification, as determined by the BZA. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restricted use.
(4) Continuation of nonconforming uses. Where, at the time of adoption of this Code, lawful uses of land exist which would not be permitted by the regulations imposed by this Code, the uses may be continued so long as they remain otherwise lawful, provided the following.
(A) Any structure existing on or before the effective date of this Code which does not conform to the provisions of this Code for the district in which it is located, and which has been or may hereafter be damaged by fire or other causes to the extent of less than 60% of its replacement value at the time of destruction or damage, may be restored or reconstructed; provided that such structure, when completed, will not differ in location or size from the previously existing structure. However, when the damage or destruction to said structure is to the extent of 60% or more of its replacement value at the time of destruction or damage, it shall not be restored except in conformity with the regulations of the district in which the structure is situated.
(B) In the event that a nonconforming use of any dwelling, building or structure, or of any land or premises, is voluntarily discontinued for a period of six months or more, any future use of said dwelling, building, structure, land or premises shall be in conformity with the provisions of this Code.
(C) Any partially completed building, the actual construction of which has commenced on or before the effective date of this Code, which building or its intended use, when completed, would not conform to the provisions of this Code for the district in which it is located, may be completed and used as a nonconforming use only for the purpose for which it was originally designed; provided that the building is completed and/or put to use within two years after the adoption of this Code.
(D) Any dwelling existing in a residential district at the time such district becomes a business or industrial district, shall have the same right that it had before the zone change without having to apply to the BZA, until it ceases to be used as a dwelling.
(5) Continuation of nonconforming sexually oriented business uses. Any sexually oriented business lawfully operating on the effective date of this Code that is in violation of this Code shall be deemed a nonconforming use. A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the subsequent location of a church, public or private elementary or secondary school, public park, or library within 1,000 feet, or a residential district within 500 feet, of the sexually oriented business. When a nonconforming sexually oriented business use of a structure or premises is voluntarily discontinued or abandoned for more than six months, the structure, building or premises shall not thereafter be used, except in conformity with the requirements of the zoning district in which it is located.
(6) Nonconformity due to site conditions. Where a dwelling is nonconforming only because the front yard setback does not meet the requirements of this Code, the Zoning Division shall issue a zoning permit for the extension, enlargement or alteration of said dwelling without requiring an appeal to the BZA; provided that no other requirement of this Code is violated and that the extent of the nonconformity is not increased.
(7) Variance of the provisions of this chapter.
(A) Any dwelling, building or other structure, or any land or premises, the use of which does not conform to the provisions of this Code or any amendment thereto, for the district in which it is located, may not be extended, enlarged or altered for the purpose of any nonconforming use as carried on in such structure or on such land.
(B) The property owner or applicant may apply for a variance with the BZA to allow for the extension, enlargement or alteration of a nonconforming use if, in the BZA’s opinion, such variance will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of this Code will result in unnecessary hardship and so that the spirit of this Code shall be observed and substantial justice done.
(8) Modifications for lots of record. Any lot of record or lot for which a land contract has been issued, or any parcel within an unrecorded allotment of which at least one-half of the lots are of record or have been sold on land contract before the effective date of this Code, shall be subject to all of the requirements of this Code, except that:
(Prior Code, § 1226.05) (Ord. 2009-21, passed 10-27-2009)