Building, structure or land nonconforming by use

A. Continuance of use. Nothing in this ordinance shall prevent or be construed to prevent the continuance of a nonconforming use of any building, structure or land for any purpose to which such building, structure or land was lawfully established.

B. Maintenance and repair. A building or structure containing a nonconforming use may be maintained and repaired except as otherwise provided in this article.

C. Moving or relocation. A nonconforming use shall not be moved in whole or in part to any portion of the land other than that occupied by such use at the time of adoption of this ordinance unless granted a special use permit by the zoning board.

D. Addition and enlargement. A building or structure containing a nonconforming use shall not be added to or enlarged in any manner, including any addition or enlargement of floor area or volume, unless the use contained within such building or structure, including such addition and enlargement, is made to conform to the use regulations of the zone in which it is located, provided however that limited addition or enlargement may be granted by the zoning board as a special use pursuant to Section 203 below.

E. Expansion. A nonconforming use may occupy any parts of a structure which were designed for such use at the time of the adoption of this ordinance. A nonconforming use may expand in other ways only if granted a special use permit under the provisions of section 203.

F. Expansion of extractive industrial use. A nonconforming extractive industrial use may expand horizontally to adjacent areas of the land where such use is located, but such expansion is limited to twenty-five (25) percent of the excavated surface area for which such use was utilized on July 12, 1996. A nonconforming extractive industry use may expand horizontally in surface area by more than twenty-five (25) percent of its existing excavated area on July 12, 1996, if granted a special use permit under the provisions of section 203.

G. Intensification. A nonconforming use of a building, structure or land shall not be intensified in any manner. Intensification shall include, but not be limited to, increasing hours of operation, increasing the number of dwelling units, decreasing the lot area, or increasing the seating capacity of a place of assembly. However, this section shall not prohibit the reconfiguration of lawfully established dwelling units within a building or structure so long as such reconfiguration complies with the requirements of subsection E., provided however that limited intensification may be granted by the board as a special use pursuant to section 203 below.

H. Change of use. A lawful nonconforming use shall not be changed to another nonconforming use but may be changed to a use conforming to the provisions of this ordinance, or to a use within the same numbered use code as listed under article 3 of this ordinance. (See section 300 with regard to "Use Code" and "Use Code Category.") Once a lawful nonconforming use is changed to a conforming use, it may not be changed back to a nonconforming use.

I. Abandonment. If the lawful nonconforming use of any land, building, structure or sign is abandoned, it shall not be allowed to resume except in conformity with all applicable provisions of this Ordinance, unless the owner can demonstrate an intent not to abandon the use. Abandonment of a nonconforming use shall consist of some overt act, or failure to act, which would lead one to believe that the owner of the nonconforming use neither claims nor retains any interest in continuing the nonconforming use. An involuntary interruption of a nonconforming use, such as by fire and natural catastrophe, does not establish the intent to abandon the nonconforming use.

J. Discontinuance—Presumption of abandonment. If any nonconforming use is discontinued for a period of one (1) year or more, the owner of the nonconforming use will be presumed to have abandoned the nonconforming use, unless that presumption is rebutted by the presentation of sufficient evidence of intent not to abandon the use. Evidence of discontinuance shall include a change in the use of the building, structure, land or sign to another use; failure to maintain the site, building, structure or sign in habitable, useable or safe condition; or failure to protect said building, structure or sign from the natural elements for a period of one (1) year or more. For the purposes of this section, the intent to abandon a lawful nonconforming use shall also be conclusively presumed by one (1) or more of the following actions:

• 1. Voluntary demolition of the building, structure or sign.

• 2. Failure to apply for or lapse of any permits, licenses or certifications required for continuation of the use, or failure to appeal any denial of any such permit, license or certification within twelve (12) months of any such lapse or denial.

• 3. Removal from the site, building or structure of fixtures, equipment, machinery or inventory necessary for the continuation of the use.

K. Reconstruction. If a nonconforming use is damaged or destroyed by accident or Act of God, it may be restored or repaired provided that such repair or rebuilding shall be commenced within one (1) year of the date of the destruction or damage and shall be diligently prosecuted until completed; and provided that the use, total floor area or land area of use and the location on the site is not altered or increased. Such repair or restoration shall comply in all respects with all applicable codes, ordinances and other applicable regulatory systems.