This chapter establishes separate districts, each of which is an appropriate area for the location of the uses that are permitted in that district. It is necessary and consistent with the establishment of those districts that nonconforming buildings, structures, and uses substantially and adversely affecting the orderly development and taxable value of other property in the district be permitted to continue only with restrictions as herein contained. The purpose of this article is to provide for the restriction of nonconforming buildings, structures, and uses and to specify those circumstances and conditions under which those nonconforming buildings, structures, and uses shall be permitted to continue.
See Article II for basic definitions and interpretations. Unless otherwise specifically provided or unless clearly required by the context, the words and phrases defined in this article shall have the meaning indicated when used in this article.
A. 
Unless otherwise specifically provided in this chapter and subject to the restrictions and qualifications set forth in §§ 440-803 through 440-807, nonconforming situations that were otherwise lawful on the effective date of this chapter may be continued.
B. 
Nonconforming projects may be completed only in accordance with the provisions of this article.
A. 
When a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in Article XII, then the lot may be used as proposed just as if it were conforming. However, no use that requires a greater lot size than the established minimum lot size for a particular zone is permissible on a nonconforming lot.
B. 
When the use proposed for a nonconforming lot is one that is conforming in all other respects but the applicable setback requirements cannot reasonably be complied with, then the Board of Appeals may allow deviations from the applicable setback requirements if it finds that:
(1) 
The property cannot reasonably be developed for the use proposed without such deviations;
(2) 
These deviations are necessitated by the size or shape of the nonconforming lot; and
(3) 
The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health or safety.
C. 
For purposes of Subsection B, compliance with applicable building setback requirements is not reasonably possible if a building that serves the minimal needs of the use proposed for the nonconforming lot cannot practicably be constructed and located on the lot in conformity with such setback requirements. However, mere financial hardship does not constitute grounds for finding that compliance is not reasonably possible.
D. 
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 § 440-806.
E. 
If an undeveloped nonconforming lot adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, and such lot was created prior to November 22, 1992, then neither the owner of the nonconforming lot nor his successors in interest may take advantage of the provisions of this section. This subsection shall not apply to a nonconforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 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 under the circumstances specified herein, but not to require such combination when that would be out of character with the way the neighborhood has previously been developed.
F. 
A single lot or parcel of land in the Critical Area Overlay District that was legally recorded as of August 3, 1989, may be developed with a single-family dwelling and customary accessory building if the dwelling was not already placed there, not withstanding that such development may be inconsistent with the density provisions contained in Article XII, provided that:
(1) 
It is on land where development activity has legally progressed to the point of pouring foundation footings or installation of structural members.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
(2) 
It is a legal parcel of land not being part of a recorded or approved subdivision that was recorded as of December 1, 1985, and land that was subdivided into recorded, legally buildable lots, where the subdivision received the Town's final approval prior to June 1, 1984, if:
(a) 
At the time of development, the land is brought into conformance with the Critical Area Program insofar as possible, including the consolidation or reconfiguration of lots not individually owned; or
(b) 
The land has received a building permit subsequent to December 1, 1985, but prior to local critical area program approval by the Critical Area Commission.
(3) 
It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the Town's final approval between June 1, 1984, and December 1, 1985.
(4) 
It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the Town's final approval after December 1, 1985, provided that either any such land conforms to the IDA, LDA or RCA requirements in the Critical Area Overlay District or the area of land is counted against the growth allocation permitted under this chapter, or was approved by the Critical Area Commission at the time of local program approval.
A. 
Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of nonconformity of a nonconforming use. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:
(1) 
An increase in the total amount of space devoted to a nonconforming use; or
(2) 
Greater nonconformity with respect to dimensional restrictions such as setback requirements, height limitations, density requirements, or other requirements such as parking requirements.
B. 
Subject to Subsection D, a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate such use. However, subject to § 440-806, a nonconforming use may not be extended to additional buildings or to land outside the original building. Subject to § 440-804, a nonconforming use of open land may not be extended to cover more land than was occupied by that use when it became nonconforming, except that a use that involves the removal of natural materials from the lot shall have one year to comply with all sections of this chapter.
C. 
The volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the equipment or processes used at a location where a nonconforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other subsections of this section or other sections of this chapter occur.
D. 
Notwithstanding Subsection A, any structure used for single-family residential purposes and maintained as a nonconforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to such matters as setback and parking requirements. This subsection is subject to the limitations stated in § 440-807.
E. 
A nonconforming structure may be altered to decrease its nonconformity.
F. 
Notwithstanding Subsection A, whenever there exists a lot with one or more structures on it, and a change in use that does not involve any enlargement of a structure is proposed for such lot, and the parking or loading requirements of Article XVII that would be applicable as a result of the proposed change cannot be satisfied on such lot because there is not sufficient area available on the lot that can practicably be used for parking or loading, then the proposed use shall not be regarded as resulting in an impermissible extension or enlargement of a nonconforming situation. However, the applicant shall be required to comply with all applicable parking and loading requirements that can be satisfied without acquiring additional land and shall also be required to obtain satellite parking in accordance with Article XVII if parking requirements cannot be satisfied on the lot with respect to which the permit is required and such satellite parking is reasonably available. If such satellite parking is not reasonably available at the time the zoning or special exception use permit is granted, then the permit recipient shall be required to obtain it if and when it does become reasonably available. This requirement shall be a continuing condition of the permit.
A. 
Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted without a permit. Major renovation, i.e., work estimated to cost more than 25% of the appraised valuation of the structure to be renovated, may be done only in accordance with a zoning permit issued pursuant to this section.
B. 
If a structure located on a lot where a nonconforming situation exists is damaged to an extent that the costs of repair or replacement would exceed 25% of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a zoning permit issued pursuant to this section. This subsection does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to a zoning permit just as they may be enlarged or replaced as provided in § 440-804D.
C. 
For purposes of Subsections A and B:
(1) 
The "cost" of renovation or repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair, or replacement.
(2) 
The "cost" of renovation or repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of Subsection A or B by doing such work incrementally.
(3) 
The "appraised valuation" shall mean either the appraised valuation for property tax purposes, updated by the increase in the Consumer Price Index since the date of the last valuation, or the valuation determined by a professionally recognized property appraiser.
D. 
The Zoning Administrator shall issue a permit authorized by this section if he finds that, in completing the renovation, repair or replacement work:
(1) 
No violation of § 440-804 will occur; and
(2) 
The permittee will comply to the extent reasonably possible with all provisions of this chapter applicable to the existing use (except that the permittee shall not lose his right to continue a nonconforming use).
E. 
Compliance with a requirement of this article is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible.
A. 
A change in use of property (where a nonconforming situation exists) that requires a new zoning or special exception permit in accordance with Article IV may not be made except in accordance with Subsections B through D. However, this requirement shall not apply if only a sign permit is needed.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
B. 
If the intended change in use is to a principal use that is permissible in the district where the property is located and all of the other requirements of this chapter applicable to that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this chapter is achieved, the property may not revert to its nonconforming status.
C. 
If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this chapter applicable to that use cannot reasonably be complied with, then the change is permissible if the Zoning Administrator issues a permit authorizing the change. This permit may be issued if the Zoning Administrator finds, in addition to any other findings that may be required by this chapter, that:
(1) 
The intended change will not result in a violation of § 440-804; and
(2) 
Compliance with a requirement of this chapter is not reasonably possible without adding additional land to the lot where the nonconforming situation is maintained or without moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible. In no case may an applicant be given permission pursuant to this subsection to construct a building or add to an existing building if additional nonconformities would thereby be created.
D. 
If the intended change in use is to another principal use that is also nonconforming, then the change is permissible if the Zoning Administrator issues a permit authorizing the change. The Zoning Administrator may issue the permit if it finds, in addition to other findings that may be required by this chapter:
(1) 
The use requested is one that is permissible in some zoning district with a zoning or special exception use permit; and
(2) 
All of the conditions applicable to the permit authorized in Subsection C of this section are satisfied; and
(3) 
The proposed development will have less adverse impact on existing surrounding uses and will be more compatible with the existing surrounding uses than the use in operation at the time the permit is applied for.
A. 
When a nonconforming use is discontinued for a consecutive period of 365 days, the property involved may thereafter be used only for conforming purposes.
B. 
For purposes of determining whether a right to continue a nonconforming use is lost pursuant to this section, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one apartment in a nonconforming apartment building for one year shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as a whole is continuously maintained. But if a nonconforming use is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter.