Division 6 – Nonconforming Uses and Structures

§ 19.6-58 Purpose.

A. Within the districts established by this chapter or amendments that may later be adopted, there exist lots, structures, and uses of land which were lawful before this chapter was adopted or amended but which would be prohibited, regulated, or restricted under the terms of this chapter.

B. It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded, or extended nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

(1) Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the districts involved. A nonconforming use of structure, a nonconforming use of land, or a nonconforming use of structure and land in combination shall not be extended or enlarged after passage of this chapter by attachment on a building or premises of additional signs intended to be seen from off the premises or by the addition of other uses of a nature which would be prohibited generally in the district involved.

(2) To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been carried out diligently. “Actual construction” is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation, demolition, or removal shall be deemed to be “actual construction,” provided that the work shall be carried on diligently.

§ 19.6-59 Nonconforming lots of record.

In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory building may be erected on any lot of record at the effective date of this chapter notwithstanding limitations imposed by other provisions of this chapter. This provision shall apply even though such lot fails to meet the requirements for area, width, or both; however, all yard setbacks (front, side, rear) shall conform to the regulations for the district in which such lot is located. A variance of yard requirements shall be obtained only through action of the Board of Zoning Appeals.

§ 19.6-60 Nonconforming uses of land.

Where, at the time of passage of this chapter, lawful use of land exists which would not be permitted by the regulations imposed by this chapter, the use may be continued so long as it remains otherwise lawful, provided:

A. No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of this chapter.

B. No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of this chapter.

C. No additional structure not conforming to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

D. The nonconforming use is not discontinued for a period of two years, and so long as the buildings or structures are maintained in their then structural condition. If the use has been discontinued for more than two years, but the site has been actively marketed in the interim, then that particular use or building shall be allowed to continue. Sufficient documentation of the marketing effort throughout the entire time period must be provided to the Zoning Administrator.

E. Nothing shall be construed to grant conforming status to uses or structures that existed as legal nonconforming uses prior to the adoption of this chapter or amendments thereto, unless such uses or structures now conform to all applicable provisions of this chapter.

§ 19.6-61 Establishment of vested rights.

As provided in § 15.2-2307, Code of Virginia (1950), as amended, nothing in this chapter shall be construed to authorize the impairment of any vested right.

A. Without limiting the time when rights must otherwise vest, a landowner’s right’s shall be deemed vested in a land use and such vesting shall not be affected by a subsequent amendment to a zoning ordinance when the landowner:

(1) Obtains or is a beneficiary of a significant governmental action, which remains in effect, allowing development of a specific project;

(2) Relies in good faith on the significant affirmative governmental action; and

(3) Incurs substantial expenses or extensive obligations in diligent pursuit of the specific project in reliance of the significant affirmative governmental action.

B. For purposes of this chapter, and without limitation, the following are deemed significant governmental acts allowing development of a specific project:

(1) The Board of Supervisors has accepted proffers as part of a zoning amendment;

(2) The Board of Supervisors has approved a rezoning for a specific use or density;

(3) The Board of Zoning Appeals has approved a variance;

(4) The Board of Supervisors has approved a conditional use permit;

(5) A preliminary plat, site plan or plan of development for the landowner’s property has been approved by the designated County agent governing such and the landowner has diligently pursued final approval within a reasonable period of time;

(6) A final plat, site plan, or plan of development has been approved by the designated County agent governing such; or

(7) The Zoning Administrator has issued a written order, requirement, decision or determination regarding the permissibility of a specific use or density on the landowner’s property that is no longer subject to appeal, amendment, modification, or reversal.

C. Vested rights shall be determined in accordance with the following criteria:

(1) The existence of an official application in the Department of Community Development for approval of a preliminary or final subdivision plat at the time of enactment of this chapter or an amendment thereto; or

(2) The existence of an official application in the office of the Building Official for a building permit with an approved compliance permit at the time of the enactment of this chapter or amendment thereto; or

(3) The existence of a plan of development (master plan) in the Department of Community Development which is deemed to be in a vested (or grandfathered) status at the time of enactment of this chapter or amendment thereto; or

(4) Documentation for each application or submittal accompanied by extensive pertinent information and that substantive expenditures or obligations have been incurred.

D. Vested rights as established under the provisions of this section shall not continue beyond two years after the effective enactment date of this chapter if substantial expenditures or obligations have not been incurred during that time period.

§ 19.6-62 Nonconforming status runs with the land and/or structure.

A. Nonconforming status is not associated with the ownership of the property, but rather is based upon the use of the property itself and the application of the provisions of this chapter.

B. Notwithstanding any other ordinance to the contrary, if the County has issued a building permit and the building or structure was thereafter constructed in accordance with the building permit and completed or if the owner of the building or structure has paid taxes on said building or structure for 15 years, the Zoning Administrator may deem the building or structure nonconforming but not illegal. The Zoning Administrator shall not authorize removal of said building or structure solely due to such nonconformity.

§ 19.6-63 Use or structure established illegally.

A use or structure established illegally is not afforded protection of nonconforming status.

§ 19.6-64 Nonconforming mobile or manufactured home removal.

Nothing in this chapter shall be construed to prevent the landowner or homeowner from removing a valid nonconforming mobile or manufactured home from a mobile or manufactured home park and replacing that home with another comparable manufactured home that meets the current HUD Manufactured Housing Code. In such mobile or manufactured home park, a single-section home may replace a single-section home, and a multisection home may replace a multisection home. The owner of a valid nonconforming mobile or manufactured home not located in a mobile or manufactured home park may replace that home with a newer manufactured home, either single-section or multisection, that meets the current HUD Manufactured Housing Code. Any such replacement home shall retain a valid nonconforming status of the prior home.

§ 19.6-65 Nonconformities: repairs and maintenance.

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs or on repair/replacement of nonbearing walls, fixtures, wiring, or plumbing to an extent not exceeding 50% of the value of the nonconforming structure as appraised by the latest County assessment.

A. If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by the Building 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.

B. Nothing in this chapter shall be deemed to prevent the strengthening or restoring to 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.

§ 19.6-66 Uses existing prior to the adoption of this chapter.

Any use which was established prior to the designation of such use as being permitted by conditional use shall be deemed to have received a conditional use of indefinite duration authorizing the continuation, enlargement, expansion, modification, relocation, and extension of such use within the overall boundary of the zoning district permitting such use by right prior to the adoption of the requirement for a conditional use.