§ 113. Non-Conformance

A. Continuance of Non-Conformance. Any structure or the use of any structure or land which structure or use was lawful at the date of enactment of this Zoning Ordinance and which is non-conforming under the provisions of this Zoning Ordinance, or which shall be made non-conforming by a subsequent amendment, may be continued subject to the following provisions.

B. Non-Conforming by Use. Something is non-conforming by use if it is a lawfully established use of land, building, or structure which is not a permitted use in that zoning district. A building or structure containing more dwelling units than are permitted by the use regulations of this Ordinance shall be non-conforming by use.

1. Repairs and Alterations. A building devoted to a non-conforming use may be repaired, maintained or improved, provided the number of square feet of floor area devoted to the non-conforming use is not increased.

2. Change in Use. A non-conforming use may be changed only to a use which conforms to the Zoning Ordinance. Once changed to a conforming use, no structure or use shall revert to a non-conforming use.

3. Abandonment. If a non-conforming use is abandoned, it may not be reestablished. Abandonment shall consist of some overt act, or failure to act, which would lead one to believe that the owner of the property neither claims nor retains any interest in its continuation, unless the owner can demonstrate intent not to abandon the use. An involuntary interruption of non-conforming use, such as by fire and natural catastrophe, will not establish the intent to abandon. If any non-conforming use is halted for a period of one (1) year, for what ever reason, either voluntary or involuntary, the owner of the property will be presumed to have abandoned the non-conforming use, unless that presumption is rebutted by the presentation of sufficient evidence of the intent not to abandon the use. Any subsequent use shall conform to the regulations of this Zoning Ordinance.

4. Relocation. A non-conforming 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 the Ordinance unless granted a Special Use Permit under the provisions of Article 7 of this Ordinance.

C. Non-Conforming Buildings.

1. Expansion. A structure which is non-conforming with respect to the dimensional requirements of the Zoning Ordinance may not be expanded, enlarged or increased unless such expanded or enlarged portion complies with the dimensional requirements of the Zoning Ordinance.

2. Destruction or Demolition. A non-conforming structure which is destroyed or damaged by any means beyond the control of the owner shall be rebuilt or restored within a period of eighteen (18) months, or thereafter conform with the dimensional requirements of the Zoning Ordinance. If a non-conforming building or structure is demolished or removed by or for its owner, it shall not be rebuilt or replaced except in conformity with the dimensional requirements of the Zoning Ordinance.

3. Use of Non-Conforming Building. Notwithstanding any dimensional requirements of the Zoning Ordinance, a non-conforming building or structure may be used for any use allowed in the zoning district where it is located unless the zoning district regulations contain specific dimensional requirements peculiar to the use which cannot be met by the existing structure or on the existing lot.

D. Construction Begun Prior to Ordinance.

1. Nothing herein contained shall require any change in plans, construction or structure the construction of which has been diligently prosecuted previous to the date of enactment of the Zoning Ordinance provided complete plans for such a building or structure shall have been filed with and accepted by the Building Official, and a Building Permit has been issued which remains valid.

E. Substandard Lots of Record.

1. A substandard lot of record may be considered a buildable lot, regardless of the lot frontage or lot area, provided such lot or parcel of land was shown on a plat, or on a deed, duly recorded prior to the effective date of this Ordinance, and further provided that at the time of such recording the lot or parcel of land so created conformed in all respects to the minimum requirements of the Zoning Ordinance in effect at that time.

2. Nothing in this Section shall be construed as exempting any substandard lot of record from complying with the maximum lot building coverage, maximum lot coverage, maximum height or minimum setback requirements for the Zoning District in which such lot is located, except, however, an exemption from the maximum lot building coverage, and reductions in minimum setbacks shall be allowed for development on lots in the RA and RB Zones as follows (Amended October 21, 2009):

a. Maximum Lot Building Coverage Exemption. An exemption to the application of maximum lot building coverage shall be allowed when the total building footprint does not exceed six hundred (600) square feet and there is no existing or proposed additional lot coverage. Any development proposed on a substandard lot which exceeds 600 square feet in either lot building coverage or total lot coverage and which also exceeds the maximum coverages allowed as a percentage of lot area for lots in the RA Zone and RB Zone (see Sections 306C and 307C, respectively), shall require the granting of a dimensional variance from the Zoning Board of Review. (Section Added October 21, 2009)

b. Reduced Side Yard Setbacks. Minimum side yard setbacks may be reduced for substandard lots of record lots in the RA and RB Zones which have less than the minimum required lot frontage. For lots in the RA Zone which have a lot frontage less than 200 feet in length, and for lots in the RB Zone which have a lot frontage less than 150 feet in length, the required side yards, 50 feet and 25 feet, respectively, may be reduced in the same proportion that the lot does not meet its required minimum lot frontage. By way of example, a lot in the RA Zone which has a lot frontage of only 140 feet (70% of the required 200 feet) may have reduced minimum side yards of 35 feet each (70% of the required 50 foot side yard setback). Similarly, a lot in the RB Zone which has a lot frontage of only 105 feet (70% of the required 150 feet) may have reduced minimum side yards of 18 feet each (70% of the required 25 foot side yard setback). (Section Added October 21, 2009)

c. Minimum Side Yard Setbacks. All necessary calculations to determine the allowable reductions in minimum side yards shall be made by the Building Official, who shall round figures to the nearest whole number. Not withstanding the above paragraph, the Building Official shall not approve a development involving a side yard of less than twenty (20) feet in the RA Zone or less than fifteen (15) feet in the RB Zone without the granting of a dimensional variance by the Zoning Board of Review. (Section Added October 21, 2009)

d. Reduced Front and Rear Yard Setbacks. Minimum front and rear yard setbacks may be reduced for substandard lots of record in the RA and RB Zones which have a lot depth of less than 200 feet. For such lots in either zoning district, the required front and rear yards, 50 feet, may be reduced in the same proportion that the lot does not measure 200 feet of lot depth. By way of example, a lot in either zoning district which has a lot depth of only 160 feet (80% of 200 feet) may have both a reduced minimum front and rear yard of 40 feet (80% of the required 50 foot front and rear yard setback). Similarly, a lot in either zoning district which has a lot depth of only 80 feet (40% of 200 feet) may have both a reduced minimum front and rear yard of 20 feet (40% of the required 50 foot setback). (Section Added October 21, 2009)

e. Minimum Front and Rear Yard Setbacks. All necessary calculations to determine the allowable reductions in front and rear yards shall be made by the Building Official, who shall round figures to the nearest whole number. Notwithstanding the above paragraph, the Building Official shall not approve a development involving a front or rear yard of less than twenty (20) feet without the granting of a dimensional variance by the Zoning Board of Review. (Section Added October 21, 2009)

f. Discretion by the Building Official. In undertaking the calculations to allow reduced front, rear and side yard setbacks, the Building Official may elect to not apply such reductions due to the unique characteristics or configuration of a given lot, which may include such factors as: (Section Added October 21, 2009)

(1) The presence of wetlands and/or slopes in excess of twenty-five percent (25%) on the lot; (Section Added October 21, 2009)

(2) Lot boundaries with irregular dimensions, which may cause unusual results; (Section Added October 21, 2009)

(3) The location of existing buildings on adjoining lots, which may cause real or perceived conflicts if reduced; (Section Added October 21, 2009)

(4) Insufficient area to provide the necessary off-street parking; and/or (Section Added October 21, 2009)

(5) Any other factor that makes application of the reduced setbacks, in the opinion of the Building Official, problematic from an environmental or physical aspect. (Section Added October 21, 2009)

3. If, as of the effective date of this ordinance, or subsequent thereto, one or more substandard lots of record are held in common ownership with any contiguous lot, such lots shall be combined for the purposes of this ordinance in order to conform, or more nearly conform, to the minimum lot area and minimum lot frontage of this ordinance for the Zoning District in which the lots are located. If all such contiguous lots, so combined, are not sufficient to permit the enlargement of said lot to conforming area and dimensions, then the largest lot which the contiguous common ownership will permit shall be established. By way of example, if all such contiguous lots, so combined, are sufficient to meet the applicable area and dimensional requirements for at least one lot, but not for two or more fully conforming lots, then all the lots shall be combined to create a single lot only. Such lots may not be sold separately.

a. Contiguous substandard lots of record shall not be combined if each substandard lot already supports a principal use. By way of example, if two contiguous substandard lots, in common ownership, already each support a single family dwelling they would not be combined.

b. Any contiguous substandard lot of record which was designated and identified by the Tax Assessors as a separate and distinct taxable lot, and was assessed as a separate and distinct lot on December 31, 2007 shall not be combined. Any lots not so designated, identified and assessed shall be subject to this ordinance.

(Section E, "Substandard Lots of Record," was renamed and amended on March 19, 2008, additionally amended on October 21, 2009)