§ 1-1020. Nonconforming situations.
A.
General description.
(1)
If, within zoning district classifications established by this ordinance, or amendments subsequently adopted, there exist lots, buildings, structures or uses of land which were lawful prior to the enactment of this ordinance, or subsequent amendments, and which would not conform to regulations and restrictions under the terms of this ordinance or amendments thereto, or which could not be built or used under this ordinance, such nonconformities may continue to exist subject to the regulations contained in this section.
(2)
The purpose of this article is to restrict nonconforming buildings, structures, and uses, and to specify those circumstances and conditions under which such nonconforming buildings, structures, and uses shall be permitted to continue.
B.
Changes in district boundaries. .....Whenever the boundaries of a district are changed, any uses of land or buildings, which become nonconforming as a result of such changes shall become subject to the provisions of this section.
C.
Continuation.
(1)
Nothing in this ordinance shall be construed to authorize the impairment of any lawful nonconforming situation; except, that land, buildings and structures and the uses thereof which do not conform to the regulations and restrictions prescribed for the district in which they are situated may be continued only so long as the existing or a more restricted use continues and such use is not discontinued for more than two (2) years, and so long as the buildings or structures are maintained in their then structural condition; and that the uses of such buildings or structures are continued in their then intensity and condition; and that the uses of such buildings or structures shall conform to such regulations whenever they are enlarged, extended, are reconstructed or structurally altered; and no nonconforming building or structure may be moved on the same lot or to any other lot which is not properly zoned to permit such nonconforming use.
(2)
Any lot reduced in area or yard setback to a nonconforming lot by reason of a realignment or dedication of any existing public highway or by reason of a condemnation proceeding, is considered to be a nonconforming lot of record. Any lawful structure on the lot before such reduction in lot size occurs, by which such action is rendered nonconforming, shall be considered a legal nonconforming structure and may continue. However, this provision does not apply to the creation of new streets in a proposed subdivision.
(3)
Nothing in this section shall be construed to prevent the land owner or home owner from removing a valid nonconforming manufactured home from a mobile or manufactured home park and replacing that home with another comparable manufactured home that meets the current HUD manufactured housing code. In such mobile or manufactured home park, a single-section home may replace a single-section home and a multisection home may replace a multisection home. The owner of a valid nonconforming mobile or manufactured home not located in a mobile or manufactured home park may replace that home with a newer manufactured home, either single-section or multisection, that meets the current HUD manufactured housing code. Any such replacement home shall retain the valid nonconforming status of the prior home pursuant to Section 15.2-2307 of the Code of Virginia.
(4)
The burden of proof for determining nonconforming status shall be with the applicant.
D.
Verification of nonconforming uses prior to any changes in nonconforming use or structure.
(1)
Prior to the approval of any change in, enlargement, extension, are reconstruction, or structural alteration of, a nonconforming use or structure, the lawful status of the use shall be verified in writing by the zoning administrator. The zoning administrator may also verify in writing the lawful status of a nonconforming use not proposed to change upon the request of the owner of the property on which the use or structure is located or upon the request of a neighboring property owner.
(2)
In verifying the lawful status of a nonconforming use, the zoning administrator shall determine the following:
(A)
Whether the use, in fact, is a lawful nonconforming use as defined by this article; and, if so, then:
(B)
The location and floor area (in square feet) of all buildings associated with the nonconforming use; and
(C)
The location, use and size of all structures other than buildings associated with the nonconforming use; and
(D)
The area of land (in square feet) devoted to all aspects of the nonconforming use (including buildings, parking, outside storage, travel ways, open spaces, etc.); and
(E)
A description of the principal use(s) and all accessory uses that make up the lawful nonconforming use as a whole.
(3)
Classification of use. If such determination results in the use, or any portion, being verified as a lawful nonconforming use, the zoning administrator shall classify the overall nonconforming use of the property based on the zoning district in which the use would be a permitted use. If the use would be permitted in more than one (1) zoning district, the assigned classification shall be based on the zoning district that is the least intense of all districts where the use would be permitted. The assignment of such a zoning classification shall not operate to change the zoning of the property on which the nonconforming use is located, but shall be used only in determining the applicable criteria for change of the nonconformance use under the provisions of subsection 1-1020.E, permitted changes of nonconforming uses and structures.
(4)
Basis for the zoning administrator's decision. The decision of the zoning administrator shall be based on 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 information available to the zoning administrator as public record. Such information may include, but shall 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.
E.
Permitted changes of nonconforming uses and structures.
(1)
If the proposed change in use is from an existing nonconforming use to a use that will conform to a use permitted in the zoning district in which the property is located, the property owner must make application for the change in use in accordance with section 5-1003, change in use, and subsection 1-1013.A.(1), zoning permit required and occupancy permit guidelines, in the same manner as authorized to make an initial use of a vacant lot.
If, and in the event, conformity of land use with this ordinance is achieved, the property may not later revert to the nonconforming use.
(2)
If the intended change in use is to a principal use that is permitted by right in the zoning district classification where the property is located, but all of the requirements of this ordinance applicable to that use cannot be complied with, then an exception or waiver, as required by the applicable sections of this ordinance shall be obtained from the appropriate approval authority. In considering such requests, financial hardship shall not be considered as justification for the exception or waiver, if approved.
(3)
A nonconforming use or structure may be changed, enlarged, extended, are reconstructed or structurally altered only in accordance with the provisions of this article and subject to the appropriate approvals (including, among others, verification of the nonconforming use, site plan approval, building permit approval and zoning approval under this ordinance) otherwise required by law.
(4)
If a use does not conform to the zoning prescribed for the district in which such use is situated, and if:
(A)
A business license was issued for such use; and
(B)
The holder of such business license has operated continuously in the same location for at least fifteen (15) years and has paid all local taxes related to such use;
The county shall permit the holder of such business license to apply for a rezoning or a conditional/special use permit without charge by the county or any agency affiliated with the county for fees associated with such filing.
F.
Repairs and maintenance. .....A nonconforming structure may be repaired, provided such repair constitutes only routine maintenance necessary to keep the structure in the same general condition it was in when it originally became nonconforming.
G.
Expansion/improvements to nonconforming uses and structures.
(1)
A nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this ordinance, was designed or arranged to accommodate such use, provided, that current parking requirements shall be adhered to upon such extension.
(2)
Any permitted expansion shall occur only on the lot occupied by the nonconforming use or structure and no area of any lot not originally devoted to the nonconforming use shall be utilized for any aspect of such expansions.
(3)
A nonconforming structure may be altered to decrease its nonconformity.
(4)
Minor alterations, cosmetic modifications, interior renovations and similar changes for nonconforming uses or structures may be permitted, subject to the following standards:
(A)
Any building or structure that is conforming as to use, but is nonconforming as to the requirements of this chapter, including floor area, lot, yard, road frontage, setback, parking, loading spaces, fences, signs or height requirements, may be enlarged or structurally altered, if the alteration or enlargement complies with this article.
(B)
Such construction shall meet all current use requirements for the zoning district assigned by the zoning administrator as a part of the nonconforming use verification process.
(5)
A nonconforming single-family detached dwelling may not be expanded, except as provided for in this article. In addition, new or expanded detached residential accessory structures or uses (such as a storage shed, garage, swimming pool, etc.) may be permitted subject to the provisions of this article. Expansion of the dwelling and new or expanded detached accessory structures and uses shall meet all current zoning requirements, including height, yard and setbacks, for the zoning district in which they are located. In no case shall a nonconforming one-family dwelling be modified to accommodate additional dwelling units.
(6)
For commercial, industrial, other nonresidential uses or residential uses, other than a single-family detached use, where the use is compatible with the proposed land use district as designated by the comprehensive plan, but where the current zoning requirements (including, but not limited to, parking, yards, setbacks, landscaping, screening and buffering, height, signs, lot coverage, connection to public sewer and water) are not met, expansion of the building, and expansion of the land area within the lot devoted to activities other than buildings, may be approved, provided all current zoning requirements applicable to the expansion are met.
(A)
A one-time exempt ion may be granted by the zoning administrator for properties located in the Highway Corridor Overlay District in accordance with subsection 6-1005.D.
(7)
For commercial, industrial and other nonresidential uses not connected to public water and sewer, where the expansion of a use compatible with the proposed land use district as designated by the comprehensive plan, and meeting all zoning requirements except for connection to public water and sewer, expansion of buildings and the land area within the lot devoted to activities other than buildings may be permitted subject to a waiver granted by the board of supervisors upon recommendation from the planning commission.
(8)
Existing commercial, industrial and other nonresidential uses compatible with the proposed land use district as designated by the comprehensive plan, and which have been made nonconforming with respect to open space, perimeter landscape requirements or setback requirements as a result of a right-of-way dedication to the County or the Virginia Department of Transportation without compensation shall be allowed to expand the buildings and the land area devoted to the activity only to the extent that would have been permitted under the ordinance requirements prior to the dedication.
(9)
Improvements may be made to a nonconforming use or structure for the sole purpose of accessibility or public safety when such improvements are necessitated by a local, state, or federal law. Such improvements may be approved by the zoning administrator and are not subject to items (3), (4) and (5) of subsection 1-1020.G.
H.
Restoration or replacement.
(1)
A residential or commercial nonconforming structure damaged or destroyed by a natural disaster, casualty, or other act of God, may be repaired, rebuilt or replaced to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance. If such building is damaged greater than fifty percent (50%) and cannot be repaired, rebuilt or replaced except to restore it to its original nonconforming condition, the owner of the property shall have the right to do so. The owner shall apply for a zoning and 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 and any work done to repair, rebuild or replace such building shall be in compliance with the provisions of the Floodplain Management Overlay District as contained in article VI of this ordinance. Unless such building is repaired rebuilt or replaced and construction completed within two (2) years of the date of the natural disaster, casualty, or other act of God, such building shall only be repaired, rebuilt or replaced in accordance with the provisions of subsection H.(2) below. However, if the nonconforming building is in 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, an additional two (2) years shall be provided for the building to be repaired, rebuilt or replaced as otherwise provided in this paragraph.
(A)
One (1) extension not exceeding ninety (90) days may be granted by the zoning administrator if it is determined that such additional time is required to reasonably complete the construction, repair or rebuild the replacement residence.
(2)
"Casualty" shall mean as result of a fire or other cause beyond the control of the owner or by an act of nature, and shall not be caused by age or ordinary wear and tear or damage intentionally caused by the owner or an agent thereof. 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. For purposes of this section, owners of property damaged by accidental fire have the same rights to rebuild such property as if it were damaged by an act of God. Nothing herein shall be construed to enable the property owner to commit an arson under Section 18.2-77 or 18.2-80 of the Code of Virginia, and obtain vested rights under this section.
(3)
All other nonconforming uses or structures destroyed or damaged in any manner, to the extent that the cost of restoration to its condition before such an occurrence shall exceed fifty percent (50%) of the current replacement value of the structure at the time of damage, it shall be restored only if it complies with the requirements of this ordinance.
(A)
When such use or structure is damaged less than fifty percent (50%) of the cost of reconstructing the entire use or structure, it may be repaired or restored; provided, any such repair or restoration is started within twelve (12) months and completed within eighteen (18) months from the date of partial destruction.
(4)
The cost of land or any factors other than the cost of the structure are excluded in the determination of cost of restoration for any structure or activity devoted to a nonconforming use.
(5)
Nonconforming uses other than buildings and signs (such as, but limited to, underground storage tanks, private sewage disposal systems and parking lots) may be restored or replaced when such structures become unsafe or unsound. A relocation on the same lot may be approved by the zoning administrator, provided the new location is less nonconforming than the original location, and further provided that the new location shall not cause a greater detrimental impact on conforming uses in the neighborhood.
(6)
Such restoration shall not include any minor alterations, cosmetic modifications, interior renovations or similar changes unless approved under the provisions of subsection 1-1020.G, expansion/improvements to nonconforming uses and structures, of this article, nor shall such restoration include any expansion unless approved under the provisions of subsection 1-1020.G, expansion/improvements to nonconforming uses and structures. Such restoration may include changes that make the use less nonconforming than it was prior to the casualty.
(7)
Redevelopment of a site which is nonconforming as to lot coverage standards shall be permitted to maintain lot coverage on site equal to or less than the existing impervious coverage on site at the time of redevelopment, provided that the post-development stormwater runoff shall meet the quality and quantity requirements or the County Chesapeake Bay Preservation Area Ordinance and stormwater management regulations.
I.
Moving a nonconforming use or structure. .....No structure used as part of a nonconforming use shall be moved to any other lot unless such lot is properly zoned to permit the use, nor shall such a structure be moved within the lot on which it exists, unless a relocation is specifically provided for in other sections of this article.
J.
Certifications. .....The construction or use of a nonconforming building or land area for which a zoning permit was issued legally prior to the adoption of this ordinance may proceed, provided such building is complete within one (1) year or such use of land is established within thirty (30) days after the effective date of this ordinance.
K.
Undeveloped nonconforming lots.
(1)
This section applies only to undeveloped nonconforming lots. A lot is undeveloped if it has no principal building upon it or if there is a principal building upon it which is physically unsafe or unlawful due to lack of repairs and maintenance and is declared by a duly authorized official to be unsafe or unlawful by reason of physical condition. A change in use of a developed nonconforming lot may be accomplished in accordance with section 5-1003.
(2)
When a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is nonconforming as to the lot area, lot width and/or frontage, or lot depth, or a combination thereof, required by the zoning district, unless specifically prohibited, the lot may be used as proposed just as if it were conforming, provided all other requirements of the zoning district are met or the board of zoning appeals establishes setbacks in accordance section 1-1019, provisions for appeals, variances, interpretations.
(A)
If a lot lacks street frontage, it must be documented that the lot has an unrestricted right of ingress and egress to a public street.
(3)
For undeveloped lots zoned for commercial, industrial and other nonresidential uses located in the Highway Corridor Overlay District, the board of supervisors upon recommendation from the planning commission may grant exemptions, whether partial or total, from Highway Corridor Overlay provisions in accordance with subsection 6-1005.D, exemptions to the Highway Corridor District Requirements.
(4)
If two (2) or more undeveloped lots or combinations of lots with continuous frontage under the same ownership are of record at the same time of passage or amendment of this article, and if all or part of the lots do not meet the requirements established for lot area and width, the lands involved shall be considered to be an unsubdivided parcel for the purposes of this article, and no portion of said parcel shall be used or sold in a manner diminishing compliance with the area and width requirements applicable to such nonconforming lot.
This subsection shall not apply to a nonconforming lot if it is determined that a majority of the developed lots located on either side of the street where such nonconforming lot is located and within five hundred (500) feet of such lot are also nonconforming. The intent of this subsection is to require nonconforming lots to be combined with other undeveloped lots to create conforming lots, but not to require such combinations when it would be clearly out of character with the manner in which the neighborhood had previously been developed.
L.
Abandonment and discontinuance of nonconforming situation.
(1)
In the event a nonconforming use ceases for a period of two (2) years or more, then the nonconforming use shall be deemed abandoned and compliance with this ordinance shall be required. The casual, temporary or illegal use of land or structure does not establish the existence of a nonconforming use.
(2)
When a structure or use made nonconforming by this ordinance is vacant or discontinued at the effective date of this ordinance, the two-year period for purposes of this article begins to run on the effective date of this ordinance. (7-7-05; 9-24-09; 10-20-16; 7-19-18.)