§ 3.3

Nonconforming Development

Nothing contained in this ordinance shall prevent or be construed to prevent the continuance of use of any property which is nonconforming by use or nonconforming by dimension for any purpose to which such property is lawfully devoted at the time of enactment of this ordinance.

3.3-1 Nonconforming by Use. A lawfully established use of land, building, or structure, which is not a permitted use in the district in which said use is located, shall constitute a nonconforming use. A building or structure containing more dwelling units than are permitted by the use regulations of this ordinance shall be nonconforming by use.

3.3-1-1 Change of Use. No nonconforming use may be changed to any other non-conforming use, unless a variance or special use permit is obtained from the zoning board of review.

3.3-1.2 Abandonment. Any nonconforming use which is abandoned shall not be re-established. 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, unless said owner can demonstrate an intent not to abandon the use. An involuntary interruption of a nonconforming use by fire or natural catastrophe, shall not establish the intent to abandon the nonconforming use. However, if any nonconforming use is halted for a period of one (1) year, the owner of such nonconforming use shall be presumed to have abandoned such nonconforming use, unless such presumption is rebutted by presentation of sufficient evidence of intent not to abandon the use.

3.3-2 Nonconforming by dimension. A lawfully established building, structure, or parcel of land not in compliance with the dimensional regulations of this ordinance shall constitute a nonconforming development by dimension. Dimensional regulations shall include all regulations of this ordinance other than those pertaining to permitted uses. A building or structure containing a permitted number of dwelling units by the use regulations of this ordinance, but not meeting the lot area per dwelling unit requirements, shall be nonconforming by dimension.

3.3-2.1 Merger of Substandard Lots of Record. Whenever two (2) or more contiguous unimproved, or contiguous improved and unimproved residentially zoned substandard lots of record are in one (1) undivided ownership, and the merger of said lots would create one (1) or more dimensionally conforming lots or reduce the extent of dimensional nonconformance of said lots, said lots shall be so merged, upon demonstration of the following:

(1) That the merger is warranted by existing or projected demands on the availability of public services or infrastructure;

(2) That the merger will better reflect the character of [the] neighborhood in which said lots are located, through greater adherence to minimum lot area and street frontage requirements; and

(3) That the merger is consistent with the comprehensive plan.

(4) The merger of lots shall not be required when the substandard lot of record has an area greater than or equal to the area of fifty percent (50%) of the lots within two hundred (200) feet of the subject lot, as confirmed by the Zoning Official. Any lots merger under these provisions prior to January 1, 2024 shall remain merged.

An applicant may petition the Zoning Board of Review, as an appeal of the Zoning Official’s determination, to unwind a merger of substandard lots of record that occurred prior to January 1, 2024.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-2.2 Development of Substandard Lots of Record. A substandard lot of record shall not be required to seek zoning relief based solely on the failure to meet minimum lot area requirement of the district in which such lot is located.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-2.2-1 Minimum building setbacks, lot frontage, and lot width requirement for a lot which is nonconforming in area shall be reduced by applying the building setback, lot frontage, and lot width requirements from another zoning district in which the subject lot would be conforming as to lot area.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-2.2-2 If the subject lot is not conforming as to lot area in any zoning district, the setbacks, lot frontage, and lot width shall be reduced by the same proportion that the area of such substand lot meets the minimum lot area of the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets forty percent (40%) of the minimum lot area required in the district in iwhich it is located, the setbacks, frontage, and width shall each be reduced to forty percent (40%) of the requirements for those dimensional standards in the same district.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-2.2-3 Maximu lot building coverage for lots that are nonconforming in area shall be increased by the inverse proportion that the area of such sustandar lot meetis the minimum area requirement in the district in which the lot is located. By way of example, if the lot area of a substandard lot only meets forty percent (40%) of the required minimum lot area, the maximum lot building coverage is allowed to increase by sixty percent (60%) over the maximum permitted lot building gcoverage int hat district.

3.3-2.2-4 All proposeals exceeding such reduced requirement shall proceed with a modification request under Section 14 of this Ordiannce, or a dimensional variance requests under Section 15 of this Ordiannce, whichever is applicable.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-2.2-5 Development under this Section shall occur only upon the determination by the Zoning Official that the substandeard lot of record is not a candidate for merger under subsection 3.3-2.1(4) above, or a prior merger has been undone.

(Ch. 8558, Sec. 1, 3-3-2025)

3.3-3 Substantial improvement. Any nonconforming development which is determined by the building inspector to require substantial improvement, shall not be so improved except in conformity with this ordinance.

3.3-4 Alteration of Use Allowed by Variance. No nonconforming development, shall hereafter be altered by addition, enlargement, expansion, or intensification, unless a variance to permit such alteration is granted by the zoning board of review, In the case of the proposed alteration of a nonconforming development which is nonconforming by use, the zoning board of review shall adhere to the standards for use variances. In the case of the proposed alteration of a nonconforming development which is nonconforming by dimension, the zoning board of review shall adhere to the standards for dimensional variances. In the case of the proposed alteration of a nonconforming development which is nonconforming both by use and by dimension, the zoning board of review shall adhere to the standards for use variances. (Ch. No. 6400, Sec. 1, 9-2-97)

3.3-5 Alteration of Use Allowed by Special Use Permit. No non-conforming development shall hereafter be altered by addition, enlargement, expansion, or intensification, unless a special use permit to permit such alteration is granted by the zoning board of review. (Ch. No. 6400, Sec. 1, 9-2-97)