[Amended 3-16-1979 by Ord. No. 83; 12-16-1983 by Ord. No.
123; 9-20-1985 by Ord. No. 158; 2-20-1987 by Ord. No. 183; 9-15-1989 by Ord. No. 230; 12-14-1990 by Ord. No. 254; 5-17-1991 by Ord. No.
260; 2-21-1992 by Ord. No. 268; 10-21-1994 by Ord. No. 287; 1-17-1997 by Ord. No. 313; 6-20-2008 by Ord. No. 438]
A.
Within the zoning districts established by Chapter 425 of the Bethany Beach Town Code or amendments that may later be adopted, there exist lots, structures, uses of land and structures and characteristics of use which were lawful before this chapter was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendment. Such nonconformities may be categorized as: a nonconforming parcel of land (i.e., does not meet the width, frontage, or minimum area requirements); a nonconforming building or structure (i.e., does not meet the dimensional requirements, such as yard setbacks, height, minimum or maximum lot coverage); or a nonconforming use (which could involve a use of the land itself or of the building or structure on the land). Oftentimes, there may be two or more overlapping nonconformities pertaining to one parcel of land. It is the intent of this chapter to permit these nonconformities to continue until they are removed. Regarding Category A and C, the Town does not encourage survival; regarding Category B, the Town neither encourages or discourages their survival. Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the zoning districts involved. It is further the intent of this chapter that nonconformities shall not be used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district.
B.
To avoid undue hardship, nothing in this chapter shall
require any changes in the plans, construction or designated use of
any building or part thereof, in which the excavation, demolition,
removal of an existing building, or construction of which, shall be
lawfully in progress at the time of passage of this chapter or for
which a building permit shall have been issued pursuant to law, provided
that construction shall be promptly and diligently pursued and completed
within 18 months of the issuing of the building permit.
All structures, lots, uses of structures and
uses of land that do not conform to the regulations of the zoning
district in which they are located after the effective date of this
chapter or amendment thereto shall be regarded as nonconforming and
may be continued so long as they remain otherwise lawful, including
subsequent sales of property.
Any lot which is not of the required minimum
street frontage or area, or is such dimensions that the owner would
have difficulty providing the required open spaces, may be utilized
for a single-family detached dwelling and permitted accessory uses
if:
A.
Such lot was held in single and separate ownership
as of the time of the passage or amendment of this chapter; or
B.
As of the time of the passage or amendment of this
chapter, such lot and any contiguous lot not held in a single and
separate ownership have characteristics or features which significantly
preclude their being "merged" to meet the lot area or street frontage
requirements of this chapter. By way of illustration and not in limitation,
the following are examples of characteristics or features which would
permit contiguous nonconforming lots held by the same identical owner
to be treated as separate nonconforming lots: a valid enforceable
easement in favor of a third party separating the two existing lots;
existing detached buildings containing dwelling units or commercial
uses on each of the contiguous nonconforming lots; significant differences
in natural features; elevations or contours such that such contiguous
nonconforming lots could not, as a practical matter, be merged and
utilized as one lot.
A nonconforming use of a structure or land may
be changed to another nonconforming use of the same or a more restricted
classification if authorized by the Board of Adjustment. Whenever
a nonconforming use of a structure or land has been changed to a more
restrictive classification or to a conforming use, such use shall
not thereafter be changed to a use of less restrictive classification.
A nonconforming use may be changed to another equally restrictive
or more restrictive nonconforming use only if authorized by the Board
of Adjustment as a special exception, subject to the following conditions:
A.
The applicant shall demonstrate that the nonconforming
use cannot be reasonably changed to a conforming use.
B.
The applicant shall demonstrate that the proposed
change will be no more objectionable in external effects than the
existing nonconforming use, or will be more appropriate than the existing
nonconforming use with regard (but not limited) to:
(1)
Traffic generation and congestion.
(2)
Parking.
(3)
Noise, vibrations, smoke dust, fumes, vapors, gases
or odor.
(4)
Outdoor storage, exterior display of merchandise.
(5)
Sanitary disposal of waste.
(6)
Hours of operation.
(7)
External lighting.
(8)
Number of employees on site.
(9)
Demand for water supply.
(10)
Fire hazards.
(11)
External appearance.
(12)
Increased stormwater runoff.
Whenever a nonconforming use has been discontinued
or in a nonoperative status for a period of at least one year, such
use shall not thereafter be reestablished, regardless of change of
ownership, and any future use shall be in conformity with the provisions
of this chapter. The casual, intermittent, temporary, or illegal use
of land or buildings shall not be sufficient to establish the existence
of a nonconforming use, and the existence of a nonconforming use on
a part of a lot or tract shall not be construed to establish a nonconforming
use on the entire lot or tract.
A.
A structure or building containing a nonconforming
use may be repaired, improved, altered or enlarged; provided that
the repair, improvements, alteration or enlargement conforms to the
requirements of this and other codes and does not increase the part
of the structure or building comprising the use nonconformity.
B.
In the case of a building containing apartments and/or
commercial lodging rooms in an R-1, R-1A or R-2 District, the size
and location of individual apartments may be changed; provided that
the total floor area comprising the nonconforming use is not increased
and the number of apartments or commercial lodging rooms remains the
same or is reduced.[1]
C.
Any building or structure containing a nonconforming
use may be repaired or have its non-load-bearing walls, fixtures,
wiring, or plumbing replaced, provided that: such repairs or replacements
do not, in any twelve-month period, exceed 25% of the reasonably estimated
current replacement cost of the entire building or structure; and
the cubic content of that portion of the building or structure containing
the nonconforming use is not increased; provided, however, anything
herein to the contrary notwithstanding, nonconforming multifamily
residential structures that are located in single-family zoning districts
may increase cubic content as long as any proposed alterations and/or
expansions do not increase and/or create any additional dimensional
nonconformities.
D.
If a building or structure or portion thereof containing
a nonconforming use becomes physically unsafe or unlawful due to lack
of repairs and maintenance, and is declared by any duly authorized
official to be unsafe or unlawful by reason of physical condition,
it shall not thereafter be restored, repaired or rebuilt except in
conformity with the regulations of the district in which it is located.
E.
Nothing in this chapter shall be deemed to prevent
the strengthening or restoring to a safe condition of any building
or part thereof declared to be unsafe by any official charged with
protecting the public safety upon order of such official.
A.
A structure or building which is nonconforming as
to dimensions or lot density may be repaired, improved, altered or
enlarged, provided that the repair, improvement, alteration or enlargement
conforms to the requirements of this and other codes and does not
increase any existing nonconformity of dimension or density, and further
provided, that whenever nonconformity exists because the number of
principal buildings exceeds the maximum number of principal buildings
permitted on a lot in that district, no repair, alteration or improvement
shall be permitted which would increase the size (i.e., height, width,
length) or intensify the use (e.g., create a two apartment buildings
out of a single-unit guesthouse) of any secondary principal building.
For purposes hereof, "secondary principal building" shall mean any
principal building on a lot containing two or more principal buildings
which, because of its size location, amenities, nature and frequency
of use or other factors cannot be considered the primary principal
building. By way of example, but not in limitation, secondary principal
buildings would include garage apartments, guest houses and cottages
occupied or used less frequently than other principal buildings on
the lot.
B.
Nothing in this chapter shall be deemed to prevent
the strengthening or restoring to a safe condition of any building
or part thereof declared to be unsafe by any official charged with
protecting the public safety, upon order of such official.
A.
No existing building or structure, nonconforming in
use, dimension or density, which is razed, demolished, removed, destroyed
or damaged by voluntary act of the owner (or any person acting with
the permission or at the direction of the owner) shall be restored
or reconstructed except in compliance with the use, height, yard setbacks
and lot coverage requirements of this ordinance, except as permitted
in the R1-A Zoning District. For the purpose of this subsection, the
gradual replacement of 50% or more of the structural members of a
building or structure within any 24 consecutive months shall be prohibited
unless in compliance with the height, yard setbacks and lot coverage
requirements of this chapter.
B.
An existing building or structure nonconforming in
use, dimension or density which is wholly or substantially damaged
or destroyed by fire, explosion, flood, windstorm or other Acts of
God (to the point where it is not economically feasible to repair)
may be rebuilt or replaced in the same location and dimensions as
the building or structure existed just previous to its destruction,
provided that reconstruction shall be commenced within six months
from the date of destruction and carried on without interruption to
completion within in one year of commencement.
C.
Where an existing building or structure under this
section is destroyed or significantly damaged, or parts of the building
or structure are damaged or destroyed to the point that they will
not be used in restoring or repairing the structure, such building
or structure or the damaged parts thereof shall be removed from the
property within three months of the date of damage. Any replacement
of a building or structure nonconforming in use or dimensions shall:
