It is the intent of these regulations that nonconformities are not to
be expanded, that they should be changed to conformity as quickly as the fair
interest of the parties permit and that the existence of any existing nonconformity
shall not in itself be considered grounds for the issuance of a variance for
any other property.
For the purpose of this article, a nonconforming building or use is
defined as any use, whether of a building or tract of land, or both, which
does not conform to the regulations respecting permitted uses as set forth
in this regulation for the district in which it is situated but which lawfully
existed prior to the enactment of this Zoning Regulation or any revision or
amendment thereto, and which is maintained after the effective date thereof,
although it does not conform to the use regulations of the district in which
is located.
Any building or use lawfully existing under the provisions of the Zoning
Regulations in effect at the time of the creation of said building or the
establishment of said use, or prior to the establishment of any zoning regulation
in the City of Derby, although not conforming with the provisions of the regulation
for the district in which it is situated, may be continued subject to compliance
with the conditions set forth below. Similarly, whenever a district shall
be changed hereafter, the provisions of this regulation with regard to any
building or uses lawfully existing at the time of the passage of this regulation
shall apply subject to compliance with the conditions set forth below to any
building or use lawfully existing in such changed district at the time of
the passage of such amendment.
A. No building which is nonconforming with respect to any
provisions of this regulation shall be altered or enlarged in such manner
as to increase such nonconformance. The provisions of this subsection shall
not apply to any alteration which may be required by order of the Building
Official to strengthen or restore a building or structure or any part thereof
to a safe condition.
B. Any nonconforming building or nonconforming use, if changed
to conform to the requirements of this regulation, shall not thereafter be
changed back to a nonconforming building or use.
C. Any nonconforming use, if discontinued for whatever cause
for six months or longer, shall be deemed to be abandoned and shall not be
resumed. Intent to resume a nonconforming use shall not confer the right to
do so. (See §
195-90 below.)
D. If any building in which any nonconforming use is conducted
or maintained is hereafter removed, the subsequent use of the land on which
such building was located and the subsequent location and use of any building
thereon shall be in conformity to the regulations specified by the regulation
for the district in which such land is located.
E. Damage over 50%.
(1) Any nonconforming use, if damaged or destroyed from any
cause to the extent, as determined by the Building Official in consultation
with the City Assessor, of over 50% of the current replacement cost of such
structure above the foundation, shall not be rebuilt or restored for the continuance
of a nonconforming use therein. Such building, if damaged to the extent, as
determined by the Building Official, of less than 50% of the replacement cost
of such structure above the foundations, may be restored in the same location
provided that it is not enlarged or extended; it is made substantially to
conform to the height and yard requirements applicable to the district in
which it is located; the Commission grants permission for the restoration
and continuance thereof without the enlargement or extension of any previously
existing nonconforming use therein subject to such additional limitations
and safeguards as the Commission may deem necessary in the public interest
for the protection of nearby conforming uses.
(2) Application for a permit to build or restore the damaged
portion of any building damaged or destroyed as set forth in the preceding
subsection shall be filed within three months of the day of such damage and
shall be accompanied by plans for reconstruction which as to such portion
shall comply with the requirements set forth above. If such permit is issued,
it shall lapse six months thereafter unless reconstruction in accordance with
the approved plans has been initiated.
F. A nonconforming building or structure that is not devoted
to a nonconforming use may be reconstructed, structurally altered, restored
or repaired in whole or in part, without the need of a variance, but must
get a zoning certificate of compliance from the Zoning Officer.
Nothing in this article shall be deemed to prohibit work on any nonconforming
building or other structure when required by law to protect the public health
or safety and when ordered by the Fire Marshal or Director of Health, provided
that such work does not increase the nonconformity. Nothing in this article
shall be deemed to prohibit work on ordinary repair and maintenance of a nonconforming
building or other structure or replacement of existing materials with similar
materials.
No nonconforming use of land shall be moved to another part of the lot
or outside the lot, and no nonconforming use of a building or other structure
shall be moved or extended to any part of the building or other structure
not manifestly arranged and designed for such use at the time the use became
nonconforming, and no building or other structure containing a nonconforming
use shall be moved, unless the result of any such move is to end the nonconformity.
No nonconforming building or structure shall be moved unless the result of
such moving is to reduce or eliminate its nonconformity.
A. Any nonconforming use which has been abandoned shall
not thereafter be reestablished. Any structure or land, or structure and land
in combination which was formerly devoted to a nonconforming use which has
been abandoned, shall not again be devoted to any use other than those uses
which are allowable in the zoning district in which it is located.
B. The term "abandonment," as used herein, shall mean the
voluntary discontinuance of a use, when accompanied by an intent not to reestablish
such use. Any one of the following shall constitute prima facie evidence of
intent to abandon:
(1) Any failure to take all necessary steps to resume the
nonconforming use with reasonable dispatch in the circumstances, including
advertising of the property for sale or for lease;
(2) In the case of a nonconforming use of a structure or
of a structure and land in combination, discontinuance of the nonconforming
use for six consecutive months or for a total of 18 months during any three-year
period; or
(3) In the case of land only, discontinuance of the nonconforming
use for 30 consecutive days or for a total of three months during a one-year
period.
No nonconforming use of land, building or other structure shall be changed
to any use which is substantially different in nature and purpose from the
former nonconforming use, except such uses as are permitted as of right in
the district in which they are to be located. No nonconforming use of land,
building or other structure if once changed to conform or to more nearly conform
to these regulations shall thereafter be changed so as to be less conforming
again. No nonconforming building or structure if once changed to conform or
to more nearly conform to these regulations shall thereafter be changed so
as to be less conforming again.
A permit may be issued for a permitted use on a lot which does not meet
the standards for lot area and/or width of the particular district in which
the lot is located if:
A. The lot was of legal size on the date it was created
as a lo; and the owner of such lot owns no adjacent land available for combination
with the lot to decrease or eliminate the nonconformity (see §
195-99
below);
B. The present owner or any prior owner did not illegally
create this nonconforming lot and all yard, coverage and other zoning requirements
can be met; however, in those instances where the lot area or shape prevents
conformance with one or more yard requirements, the requirement for that yard
shall be the same as the most restrictive district to which the lot area most
nearly conforms; and
C. The owner or his agent presents satisfactory evidence
of compliance with this article.
Nothing in these regulations shall require any change in the plans,
construction or designated use of any building or part thereof, as approved
in a building and zoning permit, the construction of which shall be lawfully
in progress at the time of promulgation of these regulations, provided that
such construction shall be completed within one year of the date of these
regulations.
No change of title, possession or right of possession shall be deemed
to affect the right to continue a nonconforming use, building or other structure.
Any use, building or structure which does not conform to one or more
of the provisions of Article VII, Off-Street Parking and Loading, shall continue
to conform to such provisions to the extent that it conforms on the effective
date of such section. Any use of land, buildings or other structures which
does not conform to one or more of the provisions of Article VII shall not
be changed to a use which would need additional off-street parking and loading
spaces to comply with the provisions of Article VII unless such spaces are
provided as required for the new use under Article VII.
Signs of a size or type not permitted in the zone in which they are
situated, that are improperly located or illuminated or that are nonconforming
in any other way shall be considered nonconforming structures under this article
and any increase in size or illumination of such signs shall be deemed to
be an enlargement or extension producing an increase in nonconformity.
Any use which is allowed in a district as a special exception shall
not be deemed a nonconforming use but shall, without further action, be deemed
a conforming use in such district.
A. Each of the nonconforming uses specified in this article
is deemed sufficiently objectionable, undesirable and out of character in
the district in which such use is located as to depreciate the value of other
property and uses permitted in the district and blight the proper and orderly
development and general welfare of such district and the community, to the
point that each such nonconforming use must be, and shall be, terminated on
or before the expiration of the specified period of time after the effective
date of this regulation; which period of time is specified for the purpose
of permitting the amortization of the remaining value, if any, of such use.
B. In any residence district, any nonconforming use of vacant
land, including but not limited to such uses as a parking lot, trailer or
open storage yard for materials or equipment, may be continued for three years
after the effective date of this regulation, provided that, after the expiration
of that period, such nonconforming use shall be terminated. Any such use that
was made nonconforming by previous zoning shall be governed by the provisions
of said previous regulation.
If one or more adjoining lots of record, one or more of which fails
to meet the minimum requirements of these regulations with regard to lot area,
shape or frontage and if the lots have continuous frontage, are in single
ownership at any time after the application of the provisions of these regulations
to such lots, and if taken together would form one or more lots meeting the
requirements of these regulations with regard to lot area, shape and frontage;
such lots shall be combined so as to no longer be considered nonconforming
and must be used in such a fashion so as to be in compliance with the lot
area, shape and frontage requirements regardless of subsequent changes of
ownership.